KAREDLA PARTHASARADHIversusGANGULA RAMANAMMA (D) THROUGH L.RS & ORS.

                         (2014] 13 S.C.R. 72


A                  KAREDLA PARTHASARADHI
                                  v.
      GANGULA RAMANAMMA (0) THROUGH L.RS & ORS.
              (Civil Appeal No. 3872 of 2009)
                       DECEMBER 04, 2014
B
       [M. Y. EQBAL AND ABHAY MANOHAR SAPRE, JJ.]
           Presumption - Presumption as to legality of marriage
    - Original owner of suit property died intestate -Appellant,
c   brother of deceased claimed right over suit property and filed
    a suit for eviction against defendant no. 1 who was in
    possession of the suit property - Trial court rejecting the
    assertion of defendant no. 1 that she was married to the
    original owner passed decree for eviction against defendant
o   no. 1 - Defendant no. 1 filed appeal before High Court and
    died during pendency of appeal and respondent no. 1 filed
    application u/Or. 22 r.4, CPC on the ground that he is adopted
    son of defendant no. 1 and defendant no. 1 had executed
    will in his favour bequeathing the suit house to him - High
E   Court allowed the application and permitted respondent no. 1
    to prosecute the appeal - Thereafter, High Court dismissed
    the suit holding that a presumption can be drawn that a woman
    is the wife of a man with whom she lived for a very long period
    and on account of their long association and defendant no. 1
F   can be recognised as his wife - Held: The impugned order
    of the High Court was based on proper appreciation of
    evidence and being just, legal and proper does not calf for
    any interference u/Article 136 of the Constitution- However,
    High Court while exercising its first appellate jurisdiction u/
G   s.96 of the CPC had ample jurisdiction to appreciate the
    evidence independent to that of the appreciation done by
    the trial court and come to its own conclusion - High Court
    ought to have remanded the case to the trial court by taking
H   recourse to the provision of Order XX/I, Rule 5 proviso for
                                  72
KAREDLAPARTHASARADHI v. GANG ULA RAMANAMMA                      73
             (D) THROUGH L.RS

deciding the issue as to whether respondent no. 1 was the A
legal representative of deceased defendant no. 1 and if so,
whether in the capacity of adopted son or as legatee on the
strength of Will - Retaining the session of the appeal,· the
matter is remitted to trial court to decide the issue of status of
respondent no. 1 and return the finding to the court- Code of B
Civil Procedure.
     Code of Civil Procedure, 1973-, Order XVI r.25 r/w Order
XX/I, r.5 proviso - Exercise of power under, scope -
Discussed.                                                    C
     While directing the trial court to return certain
findings, the Court
      HELD: 1. The High Court held that a presumption
can be drawn that a woman is the wife of a man with             D
whom she lived for a very long period and on account
of their long association and she can be recognised as
his wife. Various circumstances placed by the first
defendant by way of oral and documentary evidence also
indicate that she was recognised as the wife of the             E
deceased who was owner of the suit property, therefore,
she can be treated as his wife. Though the plaintiff and
the second defendant claimed that they are the brother
and sister of the deceased, they severed connections
with the deceased about four decades prior to the filing        F
of the suit and his whereabouts were also not known to
those persons. There was no exchange of visits and
they' never helped and financed the deceased either for
the construction of the house or for any other purpose.         G
Since there is house in the name of the deceased, they
entertained an Idea of claiming the same as legal heirs
of the deceased. The impugned order of the High Court
shows that it was based on proper appreciation of
evidence and being just, legal and proper, it does not          H
74         SUPREME COURT REPORTS              [2014] 13.S.C.R.


A call for any interference by this Court under Article 136
  of the Constitution. That apart, the High Court while
  exercising its first appellate jurisdiction under Section
  96 of the CPC had ample jurisdiction to appreciate the
  evidence independent to that of the appreciation done
B by the trial court and come to its own conclusion. There
  is no ground to reverse the finding that defendant no.1
  was legally married wife of the deceased. [Paras 21, 22
  and 23](85-E; 89-F-H; 90-A-C; G-H; 91-A-C]

c         Thakur Goka/ Chand v. Parvin Kumari @ Usha
          Rani 1952 SC 231 : 1952 SCR 825; Madan
          Mohan Singh & Ors. v. Rajni Kant & Anr. (2010) 9
          sec 209: 2010 (10) SCR 30- relied on.
           2. The question as to whether a particular person
0
     is a legal representative of a deceased plaintiff or
     defendant is required to be· decided by the Court as per
     procedure prescribed in Order XXll Rule 5 of the CPC.
     The High Court should have remanded the case to the
E    trial court by taking recourse to the provision of Order
     XXll Rule 5 proviso for deciding the question as to
     whether respondent no.1 w.as the legal representative
     of deceased defendant no.1 and if so, in what capacity -
     adopted son or legatee on the strength of Will. Secondly,
F    without first deciding this material question, the High
     Court could not have either allowed the application and
     nor it could have proceeded to decide the appeal on
     merits. This was a case where inquiry into the question
     was necessary and it could be done only by the trial
G    court. Respondent no.1 was not the natural son born
     out of wedlock of defendant no.1 and the deceased and
     nor he had any blood relations with the deceased . Due
     to death of defendant no.1 during pendency of appeal,
     the question arose as to who should succeed to her
H    interest. The order allowing the application filed by
KARE DLA PARTHASARADHI v. GAN GULA RAMANAMMA                 75
               (D) THROUGH L.RS

respondent no.1 under order XXll Rule 4 of the CPC is        A
not legally sustainable and hence deserves to be set
aside. Retaining the session of the appeal and inviting
finding from the trial court would save time, avoid
incurring cost and curtail stages of litigation and the
litigation which is pending since 1985 would come to an      B
end early and by taking such recourse, no prejudice of
any nature would cause to any parties because so far
as other issues on merits are concerned, and lastly, the
expression "Appellate Court" occurring in Order XLI Rule
25 read with Order XXll Rule 5 proviso would not only        C
include the first Appellate Court, but also include second
Appellate Court and this Court once this Court grant the
leave to file appeal to the appellant. In such event, this
Court being the last Appellate Court, can always exercise
                                                             0
the powers available under Order XLI Rule 25 read with
Order XXll Rule 5 proviso and specially when the High
 Court as first Appellate Court failed to. exercise such
 powers for proper determination of rights of the parties.
The trial court will hold the inquiry after affording an     E
opportunity to all p-.rties concerned to file reply to
 application and adduce evidence in addition to evidence
 already led in suit and return the reasoned findings to
this Court along with evidence. [Paras 24, 25, 28, 29, 30,
 32 and 35][91-E; 94-B-D; F-G; 95-A-B; F-H; 96-A-B; G·H]     F
     Ja/adi Suguna (deceased) through LRs. v. Satya
     Sai Central Trust & Ors. (2008) 8 SCC 521 : 2008
     (7) SCR 734 - relied on.
                    Case Law Reference:                      G
       1952 SCR 825        relied on           Para 19
       2010 (10) SCR 30 relied on              Para 20

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76        SUPREME COURT REPORTS                   [2014] 13 S.C.R.


A          2008 (7) SCR 734              relied on      Para 26

          CIVIL APPELLATE JURISDICTION: Civil Appeal No.
     3872 of 2009.
       From the Judgment and Order dated 19-12-2008 of the
B High Court of Judicature Andhra Pradesh at Hyderabad in
  Appeal Suit No. No. 1842 of 1996.
         Pramod Swarup, Sr. Adv., Mrs. Anjani Aiyagari, Ms.
     Sushma Verma, Ram Lal Roy, U.V. Rama for the Appellant.
c          Madhavi Divan, D. Bharat Kumar, T. Baskar Gowtham,
     Abhijit Sengupta for the Respondents
          The Judgment of the Court was delivered by
D       ABHAY MANOHAR SAPRE, J. 1. This appeal is filed
  by the plaintiff against the judgment and decree dated
  19.12.2008 passed by the High Court of Judicature, Andhra
  Pradesh at Hyderabad in Appeal Suit No. 1842of1996 which
  in turn arises out of judgment and decree dated 15.03.1996
E passed by the llnd Additional Subordinate Judge, Vijayawada,
  in O.S. No. 15of1985.
        2. By impugned judgment, the learned Single Judge of
  the High·Court allowed the first appeal filed by defendant no. 1
F (respondent no. 1 herein), reversed the judgment and decree
  of the trial court, which had decreed plaintiffs suit for ejectment
  against defendant no. 1 in relation to the suit house and in
  consequence dismissed the plaintiff's suit.
        3. So the question that arises for consideration in this
G appeal is whether the High Court was justified in allowing the
  first appeal filed by defendant no. 1 thereby justified in
  dismissing plaintiffs suit filed for ejectment against defendant
  no. 1 in relation to the suit house?
H
KAREDLA PARTHASARADHI v. GANGULARAMANAMMA                        77
  (D) THROUGH L.RS [ABHAY MANOHAR SAPRE, J.]

    4. In order to appreciate the controversy involved in this A
appeal, it is necessary to state the relevant facts in brief infra.
      5. The dispute relates to house bearing No. RS 233/1
situated in an area called "Gunadala" within the Municipal
Corporation limits of Vijayawada, bearing door No.2/172 (Old B
Assessment No.225), new No.37687 (described in detail in
the schedule attached to the plaint) (hereinafter referred to as
'1he suit house").
      6. One Karedla Satyanarayna purchased the suit house C
by registered sale deed dated 15.12.1975 from one Smt. Abdul ·
Amina Bee and her sister. At the time of purchase, there was
only a tiled house. Subsequently he reconstructed the suit
house. He died intestate on 19.12.1983. On his death, the
plaintiff (appellant herein), who is real brother of late Karedla
                                                                  0
Satyanarayna, claimed that the suit house has devolved upon
him along with his sister (defendant no. 2) in equal share being.
Class II (II) (3) (4) heirs as specified in the Schedule appended
to the Hindu Succession Act, 1956 (in short ''the Act"). However,
the plaintiff could not get possession of the suit house because E
he noticed that defendant no. 1 was claiming herself to be in
its possession and declined to vacate the same when
demanded by the plaintiff. The plaintiff also noticed that
defendant no. 1 had been asserting her ownership rights over
the suit house after the death of Satyanarayana as his wife. F
Therefore, on 20.10.1984, the plaintiff served a legal notice to
defendant no. 1 calling upon her to vacate the suit house and
handover its possession to the plaintiff.
      7. Since defendant no.1 did not vacate the suit house G
despite service of notice to her, the plaintiff filed a suit for
eviction against defendant no. 1 (respondent no. 1 herein) in
the Court of llnd Additional Subordinate Judge, Vijayawada.
The suit was founded on the allegations inter alia that on the
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         78         SUPREME COURT REPORTS                  [2014] 13 S.C.R.


         A death of K. Satyanarayana, the suit house devolved upon the
           plaintiff being his brother as provided under Section 8 read
           with Class II (II) (3) of the Act. It was alleged that defendant
           no.1 was employed by K. Satynarayana to cook his food. It
           was alleged that since K. Satyanarayana was a bachelor, he
         B had allowed defendant no. 1 to stay in the suit house as its
           caretaker and also because he used to be mostly on tour to
           various places being an active member of the Viswa Hindu
           Parishad. It was alleged that defendant no. 1 had neither any
           ownership nor any tenancy rights over the suit house. It was
         c further alleged that even as a servant, she had no right to remain
-,   _,.   in the occupation of the suit house and in any event, after K.
 '
           Satyanarayana's death, the so-called contract of employment
           between her and K. Satyanaryana having come to an end, her
           permissive possession in the suit house had become
         D
           unauthorized and was that of the trespasser qua its real owner
           - the plaintiff. The plaintiff, therefore, claimed a decree for
           possession of the suit house and damages at the rate of
           Rs.1000/- per month for its wrongful use from defendant no 1.
           The plaintiff also arrayed his sister as proforma defendant no.
         E
           2 without claiming any relief against her.
                  8. In answer to the plaint, defendant no. 1 filed her written
           statement. While denying the plaintiff's case, it was alleged
           that she was legally married wife of K. Satyanarayana and was
         F living with him since decades in the suit house. It was alleged
           that after Satynarayana's death, she became the sole owner
           of the suit house by virtue of law of inheritance being a class-I
           heir i.e., wife. It was alleged that she invested her own money
           in renovation of the suit house, got her name mutated in the
         G
           Municipal records as its owner and paid municipal taxes. It
           was thus contended that her possession over the suit house is
           on the strength of the ownership and hence cannot be
           disturbed.
         H
KAREDLA PARTHASARADHI v. GANGULA RAMANAMMA                       79
  (D) THROUGH L.RS [ABHAY MANOHAR SAPRE, J.]

      9. The trial court framed the following issues on the basis A
of aforesaid pleadings:

     "1. Whether defendant No.1 is legally married wife
        of Late Satyanaryana?
     2. Whether the plaintiff and 2"d defendant are entitled B
        for possession of suit schedule property?
      3. To what relief?
       Additional issue dated 4.2.1992.
                                                                 c
      1. Whether the plaintiff has preferred title by adverse
         possession?"
       10. The parties adduced evidence. By judgment and
decree dated 15. 03.1996, the trial court decreed the suit o
tiolding that the suit house belonged to K. Satyanaryana as its
sole owner; that K. Satyanarayana died intestate; that the
plaintiff was Satyanarayana's brother; that the plaintiff inherited
the suit house as its owner as provided under Section 8 read
with Clause (II) (II) (3) of the Schedule appended to the Act; E
that defendant no. 1 was working as cook for K. Satyanaryana
during his life time and being his servant, neither acquired nor ·
inherited any right, title and interest and nor did acquire any
possessory rights in the suit house after the death of K.
Satyanaryana. With these findings, the decree for eviction was . F
passed against defendant no. 1 in relation to the suit house.
     11. Feeling aggrieved by the said judgment, defendant
no. 1 filed first appeal before the High Court. During the
pendency of first appeal, on 09.06.2000, defendant no. 1. G
Gangula Ramanamma (appellant in first appeal), died. On
09.09.2000, K Sanjiva Rao (respondent no.1 herein) filed an
application being CMP No.17902 of 2000 under Order XXll
Rule 4 read with Section 151 of the Code of Civil Procedure,
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80        SUPREME COURT REPORTS                 [201~]13 S.C.R.


A 1908, (hereinafter referred to as 'the CPC' ) and prayed that
   his name be substituted in place of deceased <ippellant. It was
   alleged that he is the adopted son of the deceased defendant
   no. 1 (appellant) and secondly, defendant no. 1 has also
  executed one Will on 02.01.1984 in his favour bequeathing
B the suit house to him. He, therefore, claimed that he, being
  the legal representative of defendant no.1, either as her
  adopted son or/and as her legatee on the strength of the Will
  dated 02.01.1984, he has a right to prosecute the appeal and
  continue the tis on merits. The plaintiff (who was respondent
C in the appeal before the High Court) opposed the application.
  However, the High Court, by order dated 09.10.2000 allowed
  the application and permitted K Sanjiva Rao to become the
  appellant and prosecute the appeal on merits. The order dated
  09.10.2000 reads as under:
D
         "Petition under Order 22 Rule 4 r/w Section 151 of
         the CPC praying that in the circumstances stated
         in the affidavit filed herewith, the High Court will be
         pleased to bring the petitioner/proposed appellant
E        No.2 herein as the 2"d appellant in the above A.S.
         No. 1842/96 and all connected proceedings to
         represent the estate left by the deceased appellant
         Smt. Ramanamma.

F        This petition coming on for hearing upon perusing
         the petition and the affidavit filed in support thereof
         Sri V.S.R. Anjaneyulu, Advocate for the petitioner
         and Sri 0. Manohar Reddy for Sri G. Vivekananad,
         Advocate for the respondent.
G
         This Court made the following order:
         "Ordered"
       12. The appeal was accordingly heard on merits by the
H High Court.
KAREDLAPARTHASARADHI v. GANGULARAMANAMMA                            81
  (D) THROUGH L.RS [ABHAY MANOHAR SAPRE, J.]

        13. By impugned judgment, the learned Single Judge of A
the High Court allowed the first appeal filed by defendant no.1
which as stated above was being prosecuted by K. Sanjiva
Rao and while reversing the judgment and decree of the trial
court dismissed the plaintiff's suit. It was held that the plaintiff
was the brother of late K. Satyanarayana and that K. B
Satyanarayana died intestate. The High Court, however,
disagreed with the finding of the trial court on the issue of
defendant no.1 's (Ms. Gangula Ramanamma) status. The High
 Court reversed the finding on this issue and held that defendant
 no.1 was legally married wife of late K. Satyanarayana. As a C
 result of reversal of this finding, the High Court further held that
 defendant no.1, inherited the suit house after the death of K.
 Satyanarayana as class-I heir being his wife to the exclusion
 of plaintiff and defendant no. 2 because both were class II heirs.
                                                                      0
 being brother and sister of late K. Satyanarayana and thus
 had no right to succeed the estate of late K. Satyanarayana.
 With these findings, the High Court allowed the first appeal
 and in consequence dismissed the plaintiff's suit giving rise
 to filing of this appeal by the plaintiff.                           E
      14. Shri Pramod Swarup, learned senior counsel
appearing for the appellant (plaintiff) while assailing the legality
and correctness of the impugned judgment mainly raised five
contentions. In the first place, he contended that the High Court
erred in allowing defendant no.1 's appeal thereby erred in F
dismissing plaintiff's suit. According to him, there was neither
any basis and nor reason for such reversal. Secondly, he
contended that well reasoned finding recorded by the trial court
on the question as to whether defendant no.1 .was legally G
married wife of Late K. Satyanarayana or not, should not have
been reversed by the High Court for want of any cogent
evidence. According to him, a finding of trial court on this issue
holding that she was not his legally married wife, was just, legal
and proper and hence it should have been upheld.Thirdly, he H
82         SUPREME COURT REPORTS                  [2014] 13 S.C.R.


A contended that when admittedly plaintiff was the real brother
    of late K. Satyanarayana then he was entitled to inherit the suit
    house as per provisions of Section 8 read with class II (II) (3)
    of the Schedule appended to the Act on the death of late K.
    Satyanarayana. Fourthly, he contended that in any event, due
B to subsequent event which came into existence during
   pendency of the appeal viz. death of defendant no.1 on
   09.06.2000, the suit house devolved upon the plaintiff because
   there was no class-I heir in the family of K. Satyanarayana who
   could succeed to his estate after him except the plaintiff being
C the nearest class 11 heir as brother and hence he should have
   been held entitled to succeed the suit house as its owner and
   lastly, he urged that the High Court erred in allowing the
   application filed by K. Sanjiva Rao (respondent no.1 herein)
   under Order XXll Rule 4 of the CPC. According to him, the
0
  order allowing the application was passed without following
  the procedure prescribed in Order XXll Rule 5 proviso and
  more importantly without recording any finding as to whether
  K. Sanjiva Rao was the legal representative of defendant no.1
E and if so, in what capacity i.e., adopted son of defendant no.1
  or legatee on the strength of Will dated 02.01.1984 alleged to
  be executed by defendant no.1 in his favour. Learned counsel
  pointed out that it was necessary for the High Court to have
  remanded the case to the trial court as provided in proviso to
F Rule 5 of Order XXll for holding an inquiry to determine the
  status of K. Sanjiva Rao qua deceased defendant no.1 and
  then depending upon the finding, he should have been allowed
  to become the appellant and prosecute the appeal. Learned
  counsel, therefore, urged that in the absence of any finding on
G this material issue, the impugned judgment is also not legally
  sustainable and hence liable to be set aside.
       15. Learned counsel for respondent no.1 (K. Sanjiva Rao)
  supported the impugned judgment and contended that no case
H is made out to interfere in the impugned judgment, which
KAREDLA PARTHASARADHI v. GANG ULA RAMANAMMA                           83
  (D) THROUGH L.RS [ABHAY MANOHAR SAPRE, J.]

deserves to be upheld by dismissing the appeal.                       A
      16. Having heard the learned counsel for the parties and
on perusal of the record of the case, we are inclined to uphold
one finding of the High Court on merits and remand the case
for holding an inquiry on limited specific questions to enable        B
this Court to finally decide the appeal in the light of findings so
recorded on the questions framed infra for inquiry.

       17. Coming first to the main question as to whether the
High Court was justified in holding that defendant no.1 (Gangula C
Ramanamma )was legally married wife of late K.
Satyanarayana, we are of the considered opinion that the High
Court was justified in holding so. In other words, the reversal
of finding of the trial court by the High Court on this issue is
justified.
                                                                      D
     18. The question as to in which circumstances, the Court
can draw presumption as to the legality of marriage was
succinctly explained by Mulla in his book- Hindu Law, 171h
Edition in Article 438, page 664 under the heading -
"Presumption as to legality of marriage" - in following words:        E

     · "438. Presumption as to legality of marriage -
       Where it is proved that a marriage was performed
     · in fact, the court will presume that it is valid in law,
      ·and that the necessary ceremonies have been                    F
       performed. A Hindu marriage is recognized as a
       valid marriage in English law.

      Presumption as to marriage and legitimacy- There
      is an extremely strong presumption in favour of the G
      validity of a marriage and the legitimacy of its
      offspring if from the time of the alleged marriage·
      the parties are recognized by all persons concerned
      as man and wife and are so described in important
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84         SUPREME COURT REPORTS                 [2014] 13 S.C.R.


A         documents and on important occasions. The like
          presumption applies to the question whether the
          formal requisites of a valid marriage ceremony were
          satisfied. Similarly the fact that a woman was living
          under the control and protection of a man who
B         generally lived with her and acknowledged her ,
          children raises a strong presumption that she is the
          wife of that man. However, this presumption may
          be rebutted by proof of facts showing that no
          marriage could have taken place."
c
        19. The question arose before this Court in Thakur
  Gokal Chand vs. Parvin Kumari @ Usha Rani, AIR 1952
  SC 231, as to whether on facts/evidence, the Court could
  record a finding about the existence of lawful marriage between
D the parties and, if so, what should be the principle to be applied
  while deciding such question. Learned Judge - Fazal Ali J,
  speaking for the Bench examined this question in the context
  of Section 50 of the Indian Evidence Act, 1872 and other
  relevant provisions of law and laid down the following principle
E of law for determination of such question:

         "It seems to us that the question as to how far the
         evidence of those particular witnesses is relevant
         under section 50 is academic, because it is well·
F        settled that continuous cohabitation for a number
         of years may raise the presumption of marriage. In
         the present case, it seems clear that the plaintiff and
         Ram Piari lived and were treated as husband and
         wife for a number of years, and, in the absence of
G        any material pointing to the contrary conclusion, a
         presumption might have been drawn that they were
         lawfully married. But the presumption which may
         be drawn from long cohabitation is rebuttable, and
         if there are circumstances which weaken or destroy
H
· KAREDLA PARTHASARADHI v. GANG ULA RAMANAMMA                       85
    (D)THROUGH L.RS [ABHAYMANOHARSAPRE, J.]

     that presumption, the court cannot ignore them"                A
                                              ...
      20. In recent time, this Court in Madan Mohan Singh &
Ors. vs. Rajni Kant &Anr. (2010) 9 SCC 209, relying upon
the aforesaid principle of IC)W, reiterated the same principle in
following words:                                                    B

     "24. The courts have consistently held that the law
      presumes in favour of marriage and against
      concubinage, when a man and woman have
      cohabited continuously for a number of years.
      However, such presumption can be rebutted by C
      leading unimpeachable evidence. (Vide Mohabbat
      Ali Khan v. Mohd. Ibrahim Khan, AIR 1929 PC 135,
      Gokal Chand v. Parvin Kumari, AIR 1952 SC 231,
      S.P.S. Balasubramanyam v. Suruttayan, (1994) 1
                                                       0
      SCC 460, Ranganath Parmeshwar Panditrao Mali
    . v. Eknath Gajanan Kulkarni, (1996) 7 SCC 681 and
      Sabha Hymavathi Oeviv. Setti Ga[Jgadhara Swamy,
      (2005) 2 sec 244)"                        ·

     21 ~Coming now to the facts of this case, we consider it       E
apposite to reproduce the finding of the High Court on this
issue in verbatim, which is contained in paras 26 to 30 'in the
judgment:

     "26. When the first defendant asserted that she is F
     the legally wedded wife of late Satyanarayana, we
     have to examine the material placed by her to
     establish the said fact. It is an undisputed fact that
     the first defendant lived with late Satyanarayana.
     The first defendant claims that their marriage took G
     place at Rajahmundry about 30 years ago. They
     lived at Rajahmundry for about 10 years. During
     their wedlock, she became pregnant twice and
     those pregnancies were got abort at the instance
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86    SUPREME COURT REPORTS                (2014] 13 S.C.R.


A     of her husband. Ultimately, she got her sister's son
       adopted during the li(etime of late Satyanarayana.
       Later, they shifted to Rajahmundry, constructed the
       house and performed the house warming
       ceremony. Her name was included in the voters
B      list as the wife of late Satyanarayana. She also
       stated that the d~ceased being the Pracharak of
       Viswa Hindu Parishad, he took all care to see that
       no photographs are taken either for the marriage
       or house warming ceremony or any other occasion.
c      In support of her contention, DW-2, the neighbour
       at Vijayawada, was examined, who stated that the
     . deceased Satyanarayana was the husband of the
       first defendant. They resided in the said house to
       the knowledge of one and all as wife and husband.
D
       The deceased used to take the first defendant to
       some camps along with him. D-1 also looked after
       the construction work of the house. D-1 and late
       Satyanarayaria sat as wife and husband for
       performing pooja at the time of house warming
E
       ceremony. The plaintiff and the second defendant
        did not attend the said function. He finally said that
        D-1 is the wife of late Satyanarayana, but not his
       maidservant. In the cross-examination also, he
F       stated that he heard that Satyanarayana and D-1
        married at the temple near their house even prior
        to the shifting of their residence to his locality and
        as they have no issues, they brought up one boy
        by name Sanjeeva Rao. Though the pfaintiff cross-
G       examined DWs 1 and 2, he could not elicit any
        favourable information in support of his contention
        that the first defendant lived in the house of late
        Satyanarayana only as a cook, but not in any
        capacity. Ex. X-1 is a Kalpatharuvu deposit receipt
 H
KARE DLA PARTHASARADHI v. GANG ULA RAMANAMMA              87
  (D) THROUGH L.RS [ABHAY MANOHAR SAPRE, J.]

    of Andhra Bank, Vijayawada. DW-1, an officer of A
    the Andhra Bank, deposed that the deceased
    Satyanarayana and the first defendant kept an
    amount of Rs.42,650/· in Kalpatharuvu fixed
    deposit. Satyanarayana wrote letters to the bank
    informing that after maturity, the amount may be B
    paid either to him or to the first defendant. The
    application was signed by both of them at the time
    of depositing the amount. But, he does not know
    their relationship. In the fixed deposit receipt, the
    first defendant was described as K. Ramanamma, C
    but not as G. Ramanamma, which is her parents'
    surname. Had the first defendant lived in the house
   ·of late Satyanarayana as a cook, he would not have
    allowed her to join him in making the deposit and
     he would not have written letters to the bank asking D
    them to pay the amount to her after its maturity. This
     is also one of the strong circumstances to draw an
     inference that the first defendant was the wife of
     late Satyanarayana. After maturity, D-1 withdrew the E
     amount as per the authorization given by the
     deceased Satyanarayana. In the voters lists
     covered by Exs. B-42 and 44, the name of D-1 was
     shown as the wife of late Satyanarayana. Had she
     not been the wife of Satyanarayana, he would have F
     definitely raised an objection not to designate her
     as his wife, therefore, this is also one of the strong
     circumstances to establish that the first defendant
     is the wife of the deceased Satyanarayana. In 1983,
     the deceased was 53 years old and the first G
     defendant was 32 years old. Though there is
     difference of age of 20 years between them, on
     account of long association and continuous living
     in the same house, the deceased might have
                                                            H
88    SUPREME COURT REPORTS              [2014] 13 S.C.R.


A    developed affection towards the first defendant
     and married her as wife. For sake of society, he
     might have taken precautions to indicate that he
     remained as a bachelor. The postman of the locality
     was examined as DW-5, who stated that he saw the
B    first defendant in the house of the deceased from
     1980, but he does not know the relationship and
     the firs~ defendant used to receive letters in her
     name to the said address. Ex. B-46 is one of such
     letters addressed by late Satyanarayana, wherein
c    the address of the first defendant is described as
     K. Ramanamma indicating his surname. In the said
     letter, the deceased described the first defendant
     as Chiranjeevi Ramanamma and mentioned that
     she has to take care of the domestic needs and
D
     perform karthika Monday festival without caring for
     the expenditure and also advised to instruct
     Sanjeeva Rao (their foster son) to study well. The
     manner in which the letter was written is also
E    reflecting the affection of the deceased towards the
     first defendant. Had the first defendant was not his
     wife, the deceased would not have mentioned her
     name as K. Ramanamma instead of her parents'
     surname as Gangula Ramanamma.
F    27. In the letter addressed to the bank covered by
     Ex. X-2, the deceased described the first defendant
     as Smt. K. Ramanamma, which is also an indication
     that he is treating her as his wife for all practical
     purposes except describing her as his wife. DW-6,
G
     an ex-corporator of Vijaywada Municipality
     deposed that after the construction of house, the
     first defendant, her mother and a boy name
     Sanjeeva Rao resided there along with late
     Satyanarayana till his death. Late Satyanarayana
H
        \


KAREDLA PARTHASARADHI v. GANGULA RAMANAMMA 89
  (D)THROUGH L.RS [ABHAY MANOHAR SAPRE, J.]

    and the first defendant lived together. Their names     A
    find place in the voters list. Late Satyanarayana and
    the first defendant used to take treatment from him,
    as he was a Doctor and Satyanarayana himself
    used to bring D-1 for treatment. In the cross-
    examination, DW-6 stated that the first defendant       B
    was residing in the house of late Satyanarayana in
    the capacity of his wife. He knows the said fact as
   ·both of them performed Satyanarayana Vratham at
    the time of house warming ceremony. He asserted
    in the cross-examination that late Satyanarayana        C
    and the first defendant are the husband and wife
    and they brought up one Sanjeeva Rao, who is no
    other than the sister's son of the first defendant.
    DW-7, the fostered son of the defendant also, stated
    that the first defendant is his fostered mother and     D
    late Satyanarayana was his fostered father. He was
    brought up by both of them. No relatives of
    Satyanarayana attended the function when
    Satyanarayana Vratham was performed by late             E
    Satyanarayana and D-1 at the time of house
    warming ceremony. He also performed the
    obsequies of late Satyanarayana in the suit
    schedule premises.
     28; The above evidence is also lending support to F
     the contention of the first defendant that she is the
     wife of late Satyanarayana. A presumption can be
     drawn that a woman is the wife of a man with whom
     she lived for a very long period and on account of G
     their long association and she can be recognised
   . as his wife. Various circumstances placed by the
   ·first defendant by way of oral and documentary
     evidence also indicate that she was recognised as
     the wife of late Satyanarayana, therefore, she can H
90        SUPREME COURT REPORTS                   (2014] 13 S.C.R.


A        be treated as wife of late Satyanarayana.
         29. Though the plaintiff and the second defendant
         claimed that they are the brother and sister of the
         deceased, they severed connections with the
B        deceased about four decades prior to the filing of
         the suit and his whereabouts were also not known
         to those persons. There was no exchange of visits
         and they never helped and financed late
         Satyanarayana either for the construction of the
c        house or for any other purpose. Since there is
         house in the name of the deceased, they
         entertained an idea of claiming the same as legal
         heirs of the deceased Satyanarayana.
         30. On account of long association of the first
D
         defendant with the deceased for more than 33 years
         and on account of the conduct and affection shown
         by the deceased towards first defendant, it can be
         said that she was married by him surreptitiously
E        pretending to be a bachelor to the outside world
         and with a view to provide shelter to her, he
         constructed the house and fostered her sister's son
         to be the successor to D-1. The totality of the
         circumstances would indicate that D-1 was the
F        legally wedded wife of late Satyanarayana,
         therefore, she is entitled to the house property being
         Class-I heir."
         22. Mere perusal of the afore-quoted finding would go to
G show that it is based on proper appreciation of evidence and
  being just, legal and proper, it does not call for any interference
  by th is Court under Article 136 of the Constitution. That apart,
  the High Court while exercising its first appellate jurisdiction
  under Section 96 of the CPC had ample jurisdiction to
H
KAREDLA PARTHASARADHI v. GANG ULA RAMANAMMA                      91
  (D) THROUGH L.RS [ABHAY MANOHAR SAPRE, J.]

appreciate the evidence independent to that of the appreciation A
done by the trial court and come to its own conclusion. Indeed,
this being the well-settled principle of law laid down by this
Court in several decisions, no elaborate discussion is
necessary on this question.
                                                                B
      23. We, therefore, find no good ground to reverse the
finding though assailed by the appellant and uphold the same
and accordingly" hold that defendant no.1 (late Gangula
Ramanamma) was legally married wife of late K.
Satyanarayana.                                                  C
        24. This takes us to the next question which is equally
material in the facts of this case as to whether the High Court
was justified in allowing the application filed by K. Sanjiva Rao
(respondent no.1) under Order XXll Rule 4 of the CPC thereby
                                                                  0
justified in permitting him to become the appellant to prosecute
the appeal as defendant no.1 's legal representative?
      25. The question as to whether a particular person is a
legal representative of a deceased plaintiff or defendant is
required to be decided by the Court as per procedure E
prescribed in Order XXll Rule 5 of the CPC which reads as
under:
     "Order XXll Rule 5 - Determination of question as
     to legal representative - Where a question arises           F
     as to whether- any person is or is not the legal
     representative of a deceased plaintiff or a deceased
     defendant, such question shall be determined by
     the Court:
                                                                 G
     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
                                                                 H
92'      SUPREME COURT REPORTS               [2014] 13 S.C.R.


A        together with evidence, if any recorded at such trial,
         its findings and reasons therefor, and the Appellate
         Court may take the same into consideration in
         determining the question."

B       26. This Court in Jaladi Suguna (deceased) through
  LRs. Vs. Satya Sai Central Trust & Ors. , (2008) 8 SCC
  521, had the occasion to interpret Order XXll Rules 4 and 5
  ibid, Justice R.V. Raveendran speaking for the Bench after
  examining the object underlying in Order XXll Rules 4 and 5, ·
C held as under:
         "15. Filing an application to bring the legal
         representatives on record, does not amount to
         bringing the legal representatives on record. When
         an LR application is filed, the court should consider
D
         it and decide whether the persons named therein
         as the legal representatives, should be brought on
         record to represent the estate of the deceased. Until
         such decision by the court, the persons claiming
E        to be the legal representatives have no right to
         represent the estate of the deceased, nor prosecute
         or defend the case. If there is a dispute as to who is
         the legal representative, a decision should be
         rendered on such dispute. Only when the question
F        of legal representative is determined by the court
         and such legal representative. is brought on record,
         can it be said that the estate of the deceased is
         represented. The determination as to who is the
         legal representative under Order 22 Rule 5 will of
G        course be for the limited purpose of representation
         of the estate of the deceased, for adjudication of
         that case. Such determination for such limited
         purpose will not confer on the person held to be
         the legal representative, any right to the property
H
KAREDLA PARTHASARADHI v. GAN GULA RAMANAMMA                    93
  (D) THROUGH L.RS [ABHAY MANOHAR SAPRE, J.]

     which is the subject-matter of the suit, vis-a-vis A
     other rival claimants to the estate of the deceased .
     .16. The provisions of Rules 4 and 5 of Order 22 are
     mandatory. When a respondent in an appeal dies,
     the court cannot simply say that it will hear all rival B
      claimants to the estate of the deceased respondent
      and proceed to dispose of the appeal. Nor can it .
     implead all persons claiming to be legal
      representatives, as parties to the appeal without
     deciding who will represent the estate of the c
      deceased, and proceed to hear the appeal on merits.
     The court cannot also postpone the decision as to
     who is the legal representative of the deceased
      respondent, for being decided along with the
      appeal on merits. The Code clearly provides that D
     where a question arises as to whether any person
    ·is or 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 E
      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 F
     provide that determination of legal representative
      should precede the hearing of the appeal on merits,
      Rule 4 read with Rule 11 makes it clear that the
      appeal can be heard only after the legal G
      representatives are b~ought on record."
     27. Keeping in view the abovesaid principle of law and
applying the same to the facts of this case, we are of the
considered opinion, the High Court committed an error of law
                                                               H
94        SUPREME COURT REPORTS                  [2014] 13 S.C.R.


A when it proceeded to allow the application filed by K. Sanjiva
  Rao (respondent no.1) under Order XXll Rule 4 ibid by its
  order dated 19.12.2008, for more than one reason mentioned
  herein below.

B       28. In the first place, the High Court should have
  remanded the case to the trial court by taking recourse to the
  provision of Order XXll Rule 5 proviso for deciding the question
  as to whether K. Sanjiva Rao (respondent no.1 herein) was
  the legal representative of deceased defendant no.1 (Gangula
c Ramanamma) and if so, in what capacity - adopted son or
  legatee on the strength of Will dated 02.01.1984. Secondly,
  without first deciding this material question, the High Court
  could not have either allowed the application and nor it could
  have proceeded to decide the appeal on merits. Thirdly, the
D High Court simply allowed the application without recording a
  finding as to whether any right in the suit property was devolved
  in favour of K. Sanjiva Rao (respondent no.1) after the death
  of defendant no. 1 and if so, in what capacity. This finding alone
  would have enabled K. Sanjiva Rao to bi:icome the appellant
E and prosecute the appeal on merits and lastly, this was a case
   where inquiry into the question was necessary and it could be
   done only by the trial court.
         29. Indeed, this question, in our opinion, has assumed
F significance for three reasons. Firstly, because K. Sanjiva Rao
  is not the natural son born out of wedlock of defendant no.1
  and late K. Satyanarayana and nor he had any blood relations
  with late K. Satyanarayana. Secondly, due to death of
  defendant no.1 during pendency of appeal, the question has
G arisen as to who should succeed to her interest and thirdly,
  this Court having upheld the finding of the High Court that
  defendant no.1 was the legally married wife of late K.
  Satyanarayana Rao, it is now necessary to give effect to this
  finding and the same is possible only when it is decided as to
H who is her legal representative.
KAREDLA PARTHASARADHI v. GANG ULA RAMANAMMA                    95
  (D) THROUGH L.RS [ABHAY MANOHAR SAPRE, J.]

     30. In the light of foregoing discussion and as rightly A
argued by the learned senior counsel forthe appellant, the order
dated 09.10.2000 allowing the application filed by K. Sanjiva
Rao under order XXll Rule 4 of the CPC is not legally
sustainable and hence deserves to be set aside.
                                                               B
       31. Now in such situation arising in a case, we have two
options. First, to remand the case to the High Court which in
turn will remand the case to the trial court to decide the
application filed by K. Sanjiva Rao under Order XXI I Rule 4 as
provided in proviso to Order XXll Rule 5 of the CPC and c
depending upon the inquiry report, will decide the appeal and
second, this Court should retain the session of this appeal to
itself and remand the case to the trial court as provided under
Order XU Rule 25 read with Order XXll Rule 5 proviso for
holding an inquiry and on receipt of the finding, finally decide D
the.appeal in the light of finding so recorded by the trial court.
       32. Having given our anxious consideration to this
question, we are of the considered view that second course
suggested above seems to be more appropriate. It is for the E
reason that firstly, reti:lining the session of the appeal and
inviting finding from the trial court would save time, avoid
incurring cost and curtail stages of litigation and secondly, the
litigation which is pending since 1985 would come to an end
early and lastly by taking such recourse, no prejudice of any F
nature would cause to any parties because so far as other
issues on merits are concerned, we have already decided and
lastly, the expression "Appellate Court" occurring in Order XU
Rule 25 read with Order XXll Rule 5 proviso would not only
include the first Appellate Court, but also include second G
Appellate Court and this Court once this Court grant the leave
to file appeano the appellant. In such event, this Court being
the last Appellate Court, can always exercise the powers

                                                                H
96         SUPREME COURT REPORTS                    [2014] 13 S.C.R.


A available under Order XU Rule 25 read with Order XXll Rule 5
  proviso and specially when the High Court as first Appellate
  Court failed to exercise such powers for proper determination
  of rights of the parties.

B       33. In the light of foregoing discussion, though we have·
  decided the appeal on merits on some issues arising in the
  case but having regard to the nature of controversy involved
  and now keeping in view the subsequent event which have
  come into existence pending appeal and having a material
c bearing over the rights of the parties in relation to the suit house,
  we retain the session of this appeal and remand the case to
  the concerned trial court i.e.,(Second Additional Subordinate
  Judge Vijayawada) for holding an inquiry to enable this Court
  to pass appropriate orders on the application filed by
D respondent no.1, K. Sanjiva Rao under Order XXll Rule 4 of
  the CPC (CMP No.17902 of 2000 in A.S. No.1842of1996).
        34. The trial court will decide the question keeping in
  view the provisions of OrderXXll Rule4 and 5 ibid and record
E a finding on the questions (1) whether K. Sanjiva Rao is the
  adopted son of defendant no.1 and if so, how and on what
  basis, (2) whether defendant no.1 executed Will dated
  01.02.1984 in favour of K. Sanjiva Rao and if so, whether it is
  a genuine Will as per law and (3) if Will dated 01.02.1984 is
F held as genuine, whether bequeath of the suit property is made
  by such Will in favour of K. Sanjiva Rao?
         35. Let the inquiry be held by the trial court after affording
  an opportunity to all parties concerned to file reply to
G application and adduce evidence in addition to evidence
  already led in suit and reasoned findings be returned to this
  Court within three months along with documents and evidence
  led in the inquiry proceedings.

H
KARE DLA PARTHASARADHI v. GANG ULA RAMANAMMA                              97
  (D) THROUGH L.RS [ABHAY MANOHAR SAPRE, J.]

       36. The Registry to remit the record of the trial court and A
that of the High Court in relation to this case to the concerned
trial court forthwith to enable the trial court to hold the inquiry
and submitthe report as directed within the time fixed.
      37. Let the (;!ppeal be listed for hearing on receipt of B
finding from the trial court.

Devika Gujral                         Directions issued to trial court.