Varadarajan v Kanakavalli and ors., Civil Appeal No. 5673 of 2009- JANUARY 22, 2020
The bench comprising of the Justice L. Nageswara Rao and the Justice Hemant Gupta allowed the appeal.
The deceased Umadevi after the death of her husband, stayed with her younger sister for 20 years had executed the will in favour of the appellant who was the son of her younger sister. The appellant after filed an application for the eviction of the respondent and to deliver vacant possession of the premises. The executing court declared that the appellant as the legal representative who can be in possession of the suit property.
Based on the contention of the respondent side that the will was forged, the high court  after the revision petition filed under section 115 CPC, held that on the basis of the suspicious circumstance of the execution of the will, the appellant cannot become a legal representative.
The issue framed here is Whether the appellant is said to be legal representative under Order XXII Rule 5 of CPC ? Whether the tests laid down in the section 115 is satisfied by the High Court ?
The bench held that, the conflicting claims of legal representatives can be decided in execution proceedings in view of principles of Order XXII Rule 5. In reference to the case, Jaladi Suguna v Sathya Sai Central Trust and Ors, ans Suresh Kumar Bansal v Krishna Bansal and ANR.,
The determination as to who is the legal representative under Order XXII Rule 5 CPC is for the limited purpose of representation of the estate of the deceased and for adjudication of that case.
In this case, the court finds that the appellant is the sole claimant to the estate of the deceased on the basis of will and no other person claimed that they are the legal representative of the deceased. So the appellant is said to be the legal representative of the deceased and is entitled to possess the property.
In regard to second issue the court held that the High Court has not satisfied the tests laid down in section 115 of CPC that the High Court in exercise of revision jurisdiction has interfered with the order passed by the Executing Court as if it was acting as a first court of appeal.The mere fact that the High Court had a different view on the same facts would not confer jurisdiction to interfere with an order passed by the Executing Court. So the order passed by the High Court is not sustainable in nature.
Thus the bench had set aside the order passed by the High Court by restoring the order of the Executing Court and therefore the appeal was allowed.
View/ Download the Judgment: Varadarajan v Kanakavalli and ors
– Prithisha S
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