Summary
The appellant had prosecuted his mother's suit for declaration and possession as her power of attorney holder. After she died, he applied to be substituted as her legal representative, relying on a registered will in his favour. The trial court dismissed the application because the deceased also had another son and a daughter, and the High Court affirmed, holding that he should have impleaded the other legal heirs. The Supreme Court set both orders aside. As an admitted son, the appellant is a legal heir by either testamentary or intestate succession, so his application for substitution could not be refused. If any inquiry into the question of legal representation was needed, the trial court could follow Order XXII Rule 5 CPC, but it could not dismiss the application outright.
Issues
- Whether a son of a deceased plaintiff could be refused substitution as her legal representative because other legal heirs had not been impleaded.
Provisions considered
- Order XXII Rule 5, Code of Civil Procedure, 1908Where there is a question as to who is the legal representative, the court must determine it, if necessary after an inquiry, rather than dismiss the application for substitution altogether. (¶ 11)
Held
- The appellant is admittedly a son of the deceased plaintiff. His entitlement as her legal heir, whether by testamentary or non-testamentary succession, cannot be denied, so his application for substitution could not have been declined. (¶ 10)
- If any inquiry was required, the trial court could have adopted the course envisaged by Order XXII Rule 5 CPC. The application could not be dismissed outright because other heirs existed. (¶ 11)
Result
Appeal allowed. The orders of the trial court and the High Court were set aside, and the substitution application restored for fresh consideration by the trial court in accordance with law. No order as to costs.