9911796707
TMI Blog2008 (5) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and the tenant in occupation of a portion of the suit property was the second defendant in the said suit. The said suit was decreed by the Trial Court by Judgment and Decree dated 25.8.1999, declaring that the said gift deed to be void and restraining the Trust from interfering with her possession. 3. Feeling aggrieved, the Trust filed Appeal Suit No. 294/2000 in the High Court of Andhra Pradesh. Suguna who was the first respondent in the said appeal, died during the pendency of the appeal, on 21.3.2002. The Trust herein filed an application (CMP No. 10258/2002) to bring her husband (the third respondent herein) on record, as her legal representative. The appellants, who are the nieces and nephews of Suguna filed an application (CMP No. 13807/2002) seeking leave to come on record as her legal representatives. The husband of the deceased claimed that she died intestate and he was the sole legal heir. Incidentally, he also supported the case of the Trust in the litigation. The appellants claimed that the deceased had bequeathed the suit property to them under a will and they were interested in representing and safeguarding the estate of the deceased which included the suit prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result, the suit filed by Suguna stood dismissed. 6. The said Judgment and order of the High Court dated 19.9.2006 is under challenge in this appeal by special leave. The appellants challenge is three-pronged. Firstly, they challenge the procedure adopted by the High Court in hearing the appeal without bringing the legal representatives on record and deciding the appeal on merits first and thereafter deciding the issue relating to legal representative. Secondly, they challenge the decision on the question as to who are the legal representatives of Suguna. Thirdly, they challenge the judgment on merits upholding the validity of the gift deed and dismissing the suit. 7. We may refer to the rival contentions of the first question. According to the appellants, the High Court ought to have decided the question of representation of the estate of the deceased respondent first and only thereafter ought to have proceeded to hear the appeal. They submit that the procedure adopted by the High Court has resulted in miscarriage of justice as it did not afford them due opportunity to effectively contest the appeal on merits. On the other hand, respondents 1 and 3 contend that there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court: Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any recorded at such trial, its findings and reasons therefore, and the Appellant Court may take the same into consideration in determining the question. 11. Application of Order to appeals:-- In the application of this Order to appeals, so far as may be, the word 'plaintiff shall be held to include an appellant , the word 'defendant' a respondent , the word 'suit' an appeal. [emphasis supplied] 9. When a respondent in an appeal dies, and the right to sue survives, the legal representatives of the deceased respondent have to be brought on record before the court: can proceed further in the appeal. Where the respondent-plaintiff who has succeeded in a suit, dies during the pendency of the appeal, any judgment rendered on hearing the appeal filed by the defendant, without bringing the legal representatives of the deceased respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not the legal representative of a deceased respondent, such question shall be determined by the court. The Code also provides that where one of the respondents dies and the right to sue does not survive against the surviving respondents, the court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case. Though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, Rule 4 read with Rule 11 make it clear that the appeal can be heard only after the legal representatives are brought on record. 12. The third respondent, who is the husband of the deceased, wants to come on record in his capacity as a sole legal heir of the deceased, and support the case of the Trust that there was a valid gift by the deceased in its favour. On the other hand, the appellants want to come on record as testamentary legatees in whose favour the suit property was bequeathed by will, and represent the estate of the deceased Suguna as intermeddlers. They want to continue the contest to the appeal. When Suguna - the first res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the estate of deceased plaintiff. If they are not heard, there is no 'hearing' of the appeal in the eye of law. Consequently the judgment of the trial court could not be disturbed or set aside by the appellate court. Be that as it may. 14. We, accordingly, allow this appeal and set aside the judgment dated 19.9.2006, restore the appeal to the file of the High Court, with the following directions: (i) The High Court shall first decide the dispute between the husband of the deceased on the one hand, and her nieces and nephews on the other, after considering the evidence and findings dated 28.11.2005 recorded by the Trial Court and hearing the rival claimants. (ii) After such determination, the person/s determined to be the person/s entitled to represent the estate of the deceased shall be brought on record as the legal representatives of the deceased. (iii) Thereafter, the appeal shall be heard on merits and disposed of in accordance with law. 15. Having regard to the facts and circumstances, we request the High Court to dispose of the appeal, preferably within a period of six months. Nothing stated above shall be construed as expression of any opinion on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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