The application for substitution of legal heirs upon the death of the plaintiff cannot be denied without first determining whether the ‘Right to Sue’ survives: Karnataka High Court



The Karnataka High Court on 12th July 2022 ruled A trial court cannot deny an application made by legal representatives seeking to come on record after the death of the sole plaintiff in a suit without first determining whether the ‘right to sue survives on the legal representatives, through the single bench of Justice R. Devdas in the case of Shobha & Others v. Karewwa & others (Writ Petition No. 146130 of 2020)




The present writ petition was filed under Articles 226 and 227 of the Constitution of India. The petitioners prayed to issue a writ or direction or order in the nature of a writ of certiorari to set aside the impugned order dated 02.03.2020 by the Principal Senior Civil Judge Gokak which dismissed the I. A. No.2 filed under Order 2 Rule 3 r/w. Sec.151 of CPC was filed by the petitioners seeking to bring them as legal heirs of the original plaintiff and allow the I.A. No.2 filed by the petitioners.

The original plaintiff had filed a suit to be declared the absolute owner of the suit property, based on a registered Will made by his daughter Sumithra on September 4, 2018. It was argued that Sumithra, who had written a registered Will on September 4, 2018, bequeathing her rights to the land in question to her father, died after the Will was signed. However, the only plaintiff, Sri Yallappa B. Patil, died on February 9, 2020, during the course of the suit.

The court rejected the petitioners’ application on the grounds that Sumithra acquired the property under the alleged Will for her maintenance in the suit filed by her, and the beneficiary under the Will left behind Sumithra died without proving the Will, and thus the legal representatives of Yallappa B.Patil have no locus standi to prosecute the suit.

The learned counsel for the petitioners stated that the Code of Civil Procedure explicitly states that when the question of whether a person is or is not the legal representative of a deceased respondent arises, the Court must decide. Order 22 Rule 5 does not expressly state that the determination of a legal representation must come before the hearing of the merits of the appeal; nonetheless, Rule 4 combined with Rule 11 makes it obvious that the appeal can be considered only after the legal representatives are brought on record.




The court, in this case, stated that Rule 1 of Order 22 says that the death of the plaintiff/defendant does not terminate the suit if the right to sue continues. As a result, the trial court was forced to determine whether the legal representatives of the deceased sole plaintiff retained the right to sue. The court also cited a Supreme Court judgement, Prabhakara Adiga v. Gowri & Ors. [(2017) 4 SCC 97], which held that when the right litigated upon is heritable, the decree would not normally abate and could be enforced by legal representatives of the decree-holder and against the judgment-debtor or his legal representatives. It would be contrary to public policy to compel the decree-holder to litigate afresh against the legal representatives of the judgment-debtor when the cause and injunction are still in effect.

Thus, in the light of the above-relied judgement, the court held that the plaintiff had brought a complaint seeking a declaration that, as a legatee under the Will dated 04.09.2018, he would have full rights to enjoy the property provided under the Will. Another issue was that the defendant is attempting to contend that Sumithra was only given the right to maintenance and hence could not have bequeathed the same right to Sri Yallappa B.Patil. In a full-fledged trial, the Trial Court was compelled to address all of these issues.

Accordingly, the court restored the suit and remanded the case to the trial court to hear the petitioners’ application.

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