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Kailash Kapoor and anr. Vs. Naresh Chandra Misra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revn. No. 260 of 1970, against order of Suresh Chand Jain, Sub-J., 1st Class, Delhi, D/- 2-3-1
Judge
Reported inAIR1972Delhi253; 9(1973)DLT279
ActsLimitation Act, 1963 - Schedule - Articles 120 and 137; Code of Civil Procedure (CPC), 1908 - Order 22, Rule 4
AppellantKailash Kapoor and anr.
RespondentNaresh Chandra Misra
Appellant Advocate M.L. Oberoi, Adv
Respondent Advocate R.K.Malik, Adv.
Cases ReferredRambhau Vithal Rao v. Nagarmal Jitmal Air
Excerpt:
.....act (1963) article 137.; where after a diligent and bona fide enquiry regarding the legal representatives of a deceased party to a suit or appeal, all the known legal representatives have been brought on record within the prescribed period of limitation, the action cannot be said to abate if subsequently it comes to be known that there were some more legal representatives who were not brought on record for want of knowledge about them. in such a case, it is article 137 of the limitation act, 1963, that applies to the case, and under the said article the period of limitation is three years form the date when the existence of other legal heirs came to be known.; that if in spite of due diligence exercised in bringing the legal representatives of a deceased party on the..........been filed by shrimati kailash kapoor and ravi (ruby) kapoor, who are the wife and the son of shri nand gopal, against the order of shri suresh chand jain, sub-ordinate judge, 1st class, delhi, dated 2nd march, 1970, on certain applications filed in suit no.107 of 1966 on his file.2. the respondent herein, naresh chandra misra, filed the suit no.107 of 1966, for recovery of rs.5600/- against one nand gopal alleging that he had advanced rs.5,500/- on a cheque that the same was not paid back, and that he, thereforee filed the suit for the recovery of the amount. during the pendency of the suit, the defendant nand gopal died on 2nd february, 1967. the respondent (plaintiff) filed an application on 26th april, 1967, praying that mrs. nand gopal, kailash kapoor, vikram kapoor, g.k.kapoor,.....
Judgment:
ORDER

1. This Civil Revision has been filed by Shrimati Kailash Kapoor and Ravi (Ruby) Kapoor, who are the wife and the son of Shri Nand Gopal, against the order of Shri Suresh Chand Jain, Sub-ordinate Judge, 1st Class, Delhi, dated 2nd March, 1970, on certain applications filed in Suit No.107 of 1966 on his file.

2. The respondent herein, Naresh Chandra Misra, filed the suit No.107 of 1966, for recovery of Rs.5600/- against one Nand Gopal alleging that he had advanced Rs.5,500/- on a cheque that the same was not paid back, and that he, thereforee filed the suit for the recovery of the amount. During the pendency of the suit, the defendant Nand gopal died on 2nd February, 1967. The respondent (plaintiff) filed an application on 26th April, 1967, praying that Mrs. Nand Gopal, Kailash Kapoor, Vikram Kapoor, G.K.Kapoor, Smt. Rani and Shrimati Nami be imp leaded as the legal representatives of the deceased Kailash Kapoor, Vikram Kapoor and G.K.Kapoor were alleged to be the sons of the deceased, while Shrimati Rani and Shrimati Nami were alleged to be the daughters of the deceased. The application was opposed by Mrs.Nand Gopal who filed a reply, dated 4th August, 1967, standing that the four persons named by the respondent (plaintiff) in his application viz., Kailash Kapoor, G.K.Kapoor, Smt. Rani and Smt. Nami, were not the children of the deceased. She, however, did not state whether there were any other children of Nand Gopal, nor did she point out that he own name was Kailash Kapoor.

On 5th September, 1967, the respondent (plaintiff) filed a replication stating, inter alia, that he made all possible efforts to find out the names of the legal representatives of the deceased and the only source from which he could collect the names of the legal representatives was the Ration Card of the family of the deceased wherein the names mentioned by him in his application, dated 26th April, 1967, were stated, and that in the circumstances, the widow of Nand Gopal may be directed to disclose the correct names of all the legal representatives of the deceased. No order appears to have been passed on this application and the same is stated by the counsel to be still pending.

3. Then, on 24th February, 1968, the counsel for the respondent (plaintiff) made statement that he gave up the claim against other legal heirs as their names and addresses were not known to him in spite of his best efforts to find them. After recording the said statement, the Court adjourned the case to 7th March, 1968. In the mean time, on 4th March, 1968, the widow of Nand Gopal and Vikram Kapoor filed a further reply stating that the deceased Nand Gopal left behind him his widow Smt. Kailash Kapoor, two sons and two daughters, that the respondent (plaintiff) sought to bring on record only the widow Shrimati Kailash Kapoor and Vikram Kapoor as legal representatives, that the other legal heirs, a son and two married daughters, could not be dispensed with as the suit could not proceed in their absence, and that the suit should, thereforee, be dismissed as having abated. It was also stated that G.K.Kapoor, who was described as a son of the deceased, the was in reality the brother of the deceased. The respondent (plaintiff) then filed a replication on 23rd April, 1968, stating that though it was stated in the reply that the deceased left behind him two sons and two daughters, their names were not disclosed, that he was not able to get the correct names and particulars of all the legal representatives in spite of his best efforts, and that in the circumstances the suit could not be said to have abated.

4. On 15th March, 1969, Vikram Kapoor mentioned the names of his brother and two sisters in the course of his statement as D.W. 2 Thereupon, on 12th August, 1969, the respondent (plaintiff) filed an application under Order 22, Rule 4 read with Section 151 of the Code of Civil Procedure for brings the remaining legal heirs of the decreased Nand Gopal on record. He stated in that application that on 15th March, 1969, Vikram Kapoor disclosed the names of the other legal heirs as (1) Ruby Kapoor, (2) Rekha Kapoor and (3) Neena Kapoor, that he (respondent -plaintiff) came to know of the said legal heirs for the first time in the Court on 15th March, 1969, and that in the circumstances and said three legal heirs may also be brought on record as legal representatives of deceased Nand Gopal. Shrimati Kailash Kapoor and Vikram Kapoor filed a reply on 16th September, 1969, contending that the respondent-plaintiff had previously filed an application for bringing the legal representatives of deceased Nand Gopal on record and the same was pending decision, that the plaintiff's counsel had already made a statement that he did no wish to implead or bring on record any other legal representatives of the deceased, and that in the circumstances the respondent-plaintiff was barred by principles of estoppel, rest judicata and waiver fro making the present application. It was further stated in the reply that the deceased and his children were very well known to the plaintiff even during the lifetime of the deceased, and that neither a direction was made nor such a direction could be made to the widow of the deceased to disclose the names of the legal heirs of the deceased.

By the impugned order, dated 2nd March, 1970, the learned Subordinate Judge purported to dispose of the application, dated 12th August, 1969, filed by the respondent (plaintiff) and another application stated to have been filed by the widow and Nand Gopal an Vikram Kapoor. It is not clear from the order which exactly was the application filed by the widow and Vikram Kapoor. The reply, dated 4th March, 1968, filed by them seems to have been treated as an application filed by them for dismissal of the suit as having abated for the reason that one son and two daughters of the deceased have not been imp leaded as legal representatives.

5. On the respective pleadings of the parties, the following issues were framed by the learned Subordinate Judge:-

'1. Whether defendant Nand Gopal left behind any legal representative besides his wife and Vikram Kapoor? If so, its effect?

2. Whether the names and addresses of other legal heirs were not known to plaintiff?

3. Whether the suit has abated due to statement, dated 24-2-1968 of plaintiff's counsel?

4. Relief.'

6. By his aforesaid order, dated 2nd March, 1970, the learned Subordinate Judge held on issue No.1, that Nand Gopal was survived by Ruby Kapoor, Rekha Kapoor and Neena Kapoor besides his wife and Vikram Kapoor. On issue No.2, he held that the names and addresses of the three legal heirs other than the widow and Vikram Kapoor were not known to the respondent (plaintiff). On issue No.3, the held that the suit had not abated. In the result, the learned Subordinate Judge dismissed the application stated to have been filed by the widow and Vikram Kapoor praying for the dismissal of the suit on the ground of its having abated. As regards the application by the respondent-plaintiff for impleading Ruby Kapoor, Rekha Kapoor and Nenna Kapoor, the learned Subordinate Judge took the view that since the plaintiff's counsel, by his statement, dated 24th February, 1968, had given up his claim against the remaining legal representatives of the deceased, he was estopped from filing the application for the impleading of the said three legal heirs. In that view, he dismissed that application also. It is against the said order that the present Civil Revision has been filed by Smt. Kailash Kapoor, widow of Nand gopal, and Ravi Kapoor.

7. Shri M.L.Oberoi, learned counsel for the petitioner, contended that the trial Court, having refused to implead the son and the two daughters, Ruby Kapoor, Rekha Kapoor and Neena Kapoor respectively, should have held that the suit had abated for the reason that all the legal heirs of the deceased Nand Gopal have not been brought on record within the prescribed time, but only two of them viz., the widow and Vikram Kapoor were sought to be brought on record within the prescribed time. The argument of the learned counsel was that on the death of Nand Gopal, the right to sue survived to all his legal heirs, namely, the widow Kailash Kapoor, Vikram Kapoor, Ruby Kapoor, Rekha Kapoor and Neena Kapoor, that all the said legal heirs together represented the estate of the deceased, that since the lower Court refused to implead Ruby Kapoor, Rekha Kapoor and Neena Kapoor, the remaining two legal heirs, the widow and Vikram Kapoor, did not represent the entire estate of the deceased, and that the suit must, thereforee, be held to have abated.

8. It is clear from the various statements of the parties that Nand Gopal died leaving behind him, his widow Kailash Kapoor, two sons, Vikram Kapoor and Ruby Kapoor, and two daughters Rekha Kapoor and Neena Kapoor. Since the trial Court rejected the application of the respondent (plaintiff) for the impleading of Ruby Kapoor, Rekha Kapoor and Neena Kapoor, the position is that out of the five legal heirs of the deceased, only two have been sought to be brought on record within the prescribed time. The contention on behalf of the petitioners is that where a sole defendant died and only some of his legal heirs have been brought on record as legal representatives of the deceased, the suit should be held to have abated in its entirely. Shri Oberoi referred to the following decisions in support of his contention.

9. In Chuni Lal v. Amichand Air 1933 Lah 356 it was held by Addison and Aga Haidar, JJ., that the expression 'legal representative' means and includes one person as well as several persons according as they represent the whole interest of the deceased person. In the appeal before the learned Judges, there were two respondents, one of them died during him the other respondent and some others as his legal representatives. The time for bringing the other legal representatives had expired, and thus the other respondent was the sole legal representative on record. The learned Judges held that the said legal representative who was already on record did not represent the whole interest of the deceased person in the subject-matter of the appeal, that if was necessary to bring on record all the legal representatives representing that interest, and that since they were not so brought on record, the appeal abated against the deceased respondent. The learned Judges further held that since the decree appealed against was a joint and indivisible decree in favor of the two respondents, the appeal must be held to have abated in toto.

10. In Gauri Shankar Singh v. Jwala Mukhi Devi, : AIR1962Pat392 , Kanhaiya Singh and Ramratna Singh, JJ., held that there was nothing in the language of Order 22, Rule 4 of the Code of Civil Procedure to indicate that if would be sufficient to substitute in time only some of the several known legal representatives of the deceased who were the heirs of the deceased under the Hindu Succession Act, 1956.

11. In Raghunandan Singh v. Rambalak Singh, : AIR1964Pat206 , H. Mohapatra and Tarkeshwar Nath, JJ., held that where a Hindu dies intestate leaving a son and a daughter as heirs, the daughter gets under the Hindu Succession Act an interest in present in the property left by the deceased and that the non-impleading of the daughter as a legal representative in an appeal respecting that property with in the prescribed time would abate the entire appeal.

12. In the present case, three of the legal heirs left by decreased Nand Gopal were not brought on record within the prescribed time, and only two of them, namely the widow and one son, Vikram Kapoor, were sought to be brought on record within time. Shri Oberoi argued that according to the ratio of each of the aforesaid decisions, it has to be held that the widow and the son, Vikram Kapoor did not represent the whole interest of deceased Nand Gopal, and that the suit abated in toto.

13. On the other hand, Shri R.K.Malik, learned counsel for the respondents, contended that an exception to the principle enunciated in the aforesaid decisions has been recognised in another line of decisions, and the said exception is that where after a diligent and bona fide enquiry regarding the legal representatives of a deceased party to a suit or appeal, all the known legal representatives have been brought on record within the prescribed period of limitation, the action cannot be said to abate if subsequently it comes to be known that there were some more legal representatives who were not brought on record for want of knowledge about them. The learned counsel also contended that in such a case it is Article 137 of the Limitation Act, 1963, that applied to the case, and that under the said Article the period of limitation is three years from the date when the existence of other legal heirs came to be known. The learned counsel referred to the decisions in Abdul Ghaffar Khan v. Mohammad Haroon, Air 1935 Lah 172, Daya Ram v. Shyam Sundari, : [1965]1SCR231 , Mohd. Suleman v. Mohd. Ismail, : [1966]1SCR937 and Manem Venkataramayya v. Manem Munnemma, : AIR1963AP406 , in support of his contentions. In the first of the cases. Addison and din Mohammad, JJ., replying on the decision in Mst, Begum Jan v. Mt.Jannat Bibi Air 1927 Lah 6 and Mt. Karam Kaur v. MatWal Chand Air 1933 Lah 380 held that if in spite of due diligence exercised in bringing the legal representatives of a deceased party on the record any legal representatives is omitted, the omission is venial, and that requirements of the law (O.22, R.4, C.P.C.) are sufficiently complied with if all the representatives known to the applicant at the time of making his application after the exercise of due care and industry are brought upon the record and the application is bona fide. In Daya Ram's case the Supreme Court observed at page 1054 as follows:-

'The almost universal consensus of opinion of all the High Courts is that where a Plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that they imp leaded legal representatives sufficiently represent the estate of the deceased, and that a decision obtained with them on record will bind not merely those imp leaded but the entire estate including those not brought on record.'

In Mohd. Suleman's case the supreme Court, while reiterating the above observations pointed out at page 794 that although Daya Ram's case did not relate to the estate of a deceased Muslim, the rule enunciated is of the domain of procedural law and applies to all communicates irrespective of their religious persuasion on personal law. In Manem Venkataramayya's case, Gopalrao Ekbote, J., relying on the decision in Rambhau Vithal Rao v. Nagarmal Jitmal Air 1945 Nag 52, held that where there are several legal representatives of a deceased defendant, it is sufficient if all the legal representatives known after due diligent enquiry are joined within the period of limitation, and that where some of the legal representatives have been brought on record on an application made within limitation, a subsequent application for bringing the other persons on record as legal representatives is not governed by the 90 days' rule, but is governed by the limitation of three years, as provided for under Article 181 of the Limitation Act, 1908 (which corresponds to Article 137 of the Limitation Act, 1963). On the ratio of the aforesaid decisions it cannot but be held that the suit filed by the respondent did not abate by reason of the fact that one son and two daughters of deceased Nand Gopal were not sought to be brought on record as legal representatives within 90 days of the date of death of Nand Gopal.

14. Further, in the present case, the facts narrated earlier show that on the death of Nand Gopal, the respondent Naresh Chandra Mistra filed an application within the period of 90 days for bringing on record the legal representatives of the deceased. But the petitioners, while denying that some of the persons sought to be brought on record were the children of the deceased, did not disclose the names and other particulars of the children of the deceased till a late stage. As soon as Virendra Kapoor disclosed the names in his statement as D.W. 2, the respondent moved the court for bringing on record the children so disclosed as legal representatives. It is true that in the mean time, the counsel for the respondent made a statement that he gave up the claim as against the heirs other than the widow and Virendra Kapoor. But, it has to be noted that he also gave the reason for the same by saying that he was giving up the claim against the other legal heirs as he was not able to know their names and addresses in spite of his best efforts. That clearly shows that his statement was the result of his helplessness. The statement made in such a situation cannot, in my opinion, be a bar against the respondent moving for the impleading of the other legal heirs as soon as their names were disclosed by Vikram Kapoor. The learned Subordinate Judge committed a material irregularity in the exercise of his jurisdiction under Order 22, Rule 4 of the Code of Civil Procedure in dismissing the application of the respondent dated 12-8-1969 without considering the above legal aspects. But, the respondent has not filed a revision against the order of the learned Subordinate Judge. No relief can, thereforee, be given to him so far as the dismissal of his application dated 12th August, 1969 is concerned.

15. For the above reason, the Civil Revision fails and is dismissed, but in the circumstances without costs.

16. Revision dismissed.


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