Application Of One Legal Heir Of Deceased Plaintiff For Substitution Cannot Be Declined Citing That Others Are Not Impleaded- SC

The Supreme Court has recently observed that application made by the appellant-son for substituting himself as the legal representative of the deceased-mother cannot be declined when admittedly the appellant is the son of the deceased-mother.

The Bench of Justice Dinesh Maheshwari and Justice Aniruddha Bose held thus- "Leaving aside any other aspect of the matter, it is but apparent that the appellant is admittedly the son of the deceased plaintiff. Thus, his entitlement, whether by way of testamentary succession or non-testamentary succession, as being the legal heir of the deceased plaintiff cannot be denied. That being the position, the application made by him for substituting himself as the legal representative of the deceased plaintiff could not have been declined by the Trial Court."

The relevant aspects of the present case is that the appellant's mother had expired on January 2020. Thereafter, the appellant moved an application, seeking his substitution as legal representative of the deceased plaintiff with the assertion that the plaintiff, his mother, had executed a Will in 2016 in his favour with respect to all her estate.

Having regard to the factum of existence of other legal heirs of the deceased plaintiff, the Trial Judge came to the conclusion that the application moved by the appellant for substitution was required to be dismissed and ordered accordingly.

The appellant moved before the High Court against the order aforesaid. The High Court dismissed the appellant's petition on the consideration that the petitioner i.e., the present appellant, ought to have taken steps for impleading the other legal heirs of the late plaintiff either as co-plaintiffs or as defendants to enforce his right over the property in question.

The appellant-son appeared in person whereas Advocate G.Balaji appeared for respondent.

The Supreme Court noted that the appellant being admittedly the son of the deceased plaintiff, the application made by him for substituting himself as the legal representative of the deceased plaintiff could not have been declined by the Trial Court.

Therefore the Court set aside the set aside the orders impugned and restored the said application for re-consideration by the Trial Court in accordance with law.

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