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Abdul Samad and ors. Vs. Wasal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 142 of 1952
Judge
Reported inAIR1957Raj302
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10 - Order 22, Rule 3 and 3(1)
AppellantAbdul Samad and ors.
RespondentWasal and ors.
Appellant Advocate S.B.L. Saxena, Adv.
Respondent Advocate S.M. Mehta, Adv.
Cases ReferredMusala Reddi v. Ram
Excerpt:
.....rule, 2007 - as such, accused has to be treated as juvenile under the said act. - notice was served on the two adult sons bat they failed to apply within sixty days. ' the facts of the above case clearly show that it had been brought to the notice of the court that the deceased bhikaji ramchander had three sons who were the legal representatives. inayat hussain air 1927 lah 94 (d)' wherein it was observed as follows :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. kuber mohan, air 1943 bom 457 (p) treated the decision in the case or i l r 10 bom 220 (a) as good law......the filing of the suit. they, therefore, claimed possession of it. during the pendency of the suit abdul karim died on the 1st february 1951. on the 18th april 1951, the two appellants abdul samad and chand mohammad who were already plaintiffs on record, applied that they were the legal representatives of their father abdul karim. and that their names be substituted in place of the name of their father. on notice to the defendants respondents, they replied that abdul karim had left other heirs also namely another son abdul rahman, one daughter mt. asmat nuri and the widow mt. kallu. the appellants chand mohammad and abdul samad, thereupon, made an application on the 3cth july 1951, i hat their mother mt. kallu had died sometime in october 1950 before the death of abdul karim and.....
Judgment:

Bhandari, J.

1. This is a civil second appeal on behalf of Abdul Samad Chand Mohammad and Mt. Asmat Nuri in a suit for possession of a room. Abdul Karim, father of. appellants and the appellants Abdul Sarnad and Chand Mohammad filed a suit against the defendant respondents for possession ot' a room in the Court of the Munsif, Bundi, on the 6th of May 1949. The plaintiffs alleged that they were the owners of the disputed room and one Khudabux was in possession of it on their behalf and the defendants had illegally dispossessed him so'ne two months before the filing of the suit. They, therefore, claimed possession of it. During the pendency of the suit Abdul Karim died on the 1st February 1951. On the 18th April 1951, the two appellants Abdul Samad and Chand Mohammad who were already plaintiffs on record, applied that they were the legal representatives of their father Abdul Karim. and that their names be substituted in place of the name of their father. On notice to the defendants respondents, they replied that Abdul Karim had left other heirs also namely another son Abdul Rahman, one daughter Mt. Asmat Nuri and the widow Mt. Kallu. The appellants Chand Mohammad and Abdul Samad, thereupon, made an application on the 3Cth July 1951, i hat their mother Mt. Kallu had died sometime in October 1950 before the death of Abdul Karim and thtt Aodul Rehtnali and Mt. Asmat Nuri be made the leged representa-tives of Abdul Karim. On the same date, two other applications were made one on behalf of Abdul Rehman and another on behalf of Mt. Asmat Nuri with the prayer that they might be made the legal representatives of Abdul Karim along with Abdul Samad and Chand Moharamad. The learned Munsif held that the application dated the 18th April 1951, was not made by all the legal representatives of Abdul Karim and that the application dated the 30th July 1951, was made after the time prescribed under Article 176 of the Limitation Act, as such the suit abated as a whole. The appellants went in appeal to the Court of the Civil Judge, Bundi making Abdul Rehman as one of the respondents along with the defendants. The learned Civil Judge dismissed the appeal on the 3rd December 1951, agreeing with the learned Munsif. The learned Civil Judge further held that Abdul Samad and Chand Mohammad had no interest in the room in dispute during the life time of Abdul Karim and they could not prosecute the suit in their own right. Hence this second appeal on behalf of the defendants.

2. It has been urged on behalf of the appellants that an application had been made by two of the legal representatives of the deceased plaintiff to be made party within the prescribed time and as such.the suit could not be dismissed as it did not abate under Order 22 Rule 3 of the Code of Civil Procedure and the other legal representatives of the deceased plaintiff could be made party even after the expiry of the period ot limitation prescribed under Article 176, It is further urged that the suit being a suit for possession against the trespassers, the appellants Abdul Samad and Chand Mohammad who became tenants-in-common with Abdul Rehman and Mt. Asmat Nuri, alter the death of Abdul Karim, could prosecute the suit instituted by Abdul Karim, who, it is conceded, was the sole owner of the room during his life time.

3. On behalf of the appellants reliance is placed on the words 'legal representatives' occurring in Order 22 Rule 3(1) of the Civil Procedure Code which runs as follows :

'Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plainttiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.'

It is urged that the words 'legal representative' do not mean all the legal representatives and that it is not necessary that an application for bringing all the legal representatives on record should be made. Reliance is pluced on the case of 'Bhikaji Ram-chandra v. Purshotam' I L.R 10 Bom 220 (A). In that case one Bhikaji Ramchandra died during the pendency of appeal filed by him. Bhikaji had left three sons, two adults and one minor. Notice was served on the two adult sons bat they failed to apply within sixty days. The minor son applied within the time prescribed by law to be made a party. This application was rejected by the Court hearing the appeal on the ground that in consequence of the omission on the part of the two adult brothers to apply, the appeal abated. On appeal to the High Court by the minor son, the following observations were made by Sargent C. J. :

'It is true that the complete legal representation as a fact is vested in him and his two brothers, but Section 366 only requires an application to be made by a person claiming to be the legal representative, to prevent the order of abatement being made.'

The only question which arises, therefore is, how the appeal is to proceed, on the supposition that neither of the other brothers, as we assume to be the case, is willing to have his name placed on the record Under these circumstances, the respondent is entitled to have them made defendants, so that they may be bound by the decree. The minor son can then proceed with the appeal alone.'

The facts of the above case clearly show that it had been brought to the notice of the Court that the deceased Bhikaji Ramchander had three sons who were the legal representatives. Under Order 22 Rule 3 (1) if an application is made disclosing all the legal representatives ot the deceased, the Ccurt may make an order that they may be made parties either as plaintiffs or as defendants.

4. It has been held by the Allahabad High Court in the case of 'Ghamandi Lal v. Amir Begara, ILR 16 All 211 (B)' the words 'the legal representa-tive' in Section 365 of. the Code of Civil Procedure (now Order 22 Rule 3) must, where there are more than one legal representative, be read in the plural. ILR 16All 211 (B) was followed by the Allahabad HighCourt in the case of 'Haidar Husain v. Abdul Ahad, ILR 30 All 117 (C)'. The same view was taken by a Division Bench of Lahore High Court in the case of 'Muhammad Hassan v. Inayat Hussain AIR 1927 Lah 94 (D)' wherein it was observed as follows :

'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.'

The same view is taken by the Calcutta High Court in the case of Patar Banco v. Rahim Bux, AIR 1929 Cal 26 (E). The Bombay High Court in the case of Ishwarlal Laxmichand Patel v. Kuber Mohan, AIR 1943 Bom 457 (P) treated the decision in the case or I L R 10 Bom 220 (A) as good law. In that case the plaintiff brought a suit for an injunction against the defendant to secure certain easement rights and various other amenities for his house. The suit was dismissed by the trial court and the plaintiff appealed. During the pendency of the appeal, the plaintiff died, and the son of the deceased appellant made an application to be brought on record as legal representative. His application was granted but later on an objection was taken by the respondent in that case that the widow of the deceased appellant was also one of the heirs under the Hindu Women's Rights to Property Act and that as she was not brought on record, the appeal had abated. It was held that the appeal did not abate. This is one aspect ot the controversy. It becomes deeper under Order 22, Rule 3 rule of the Code of Civil Procedure. In my humble opinion the true principles are con-tained the following observations of Vardachariar J. in the case of Muthuraman Chettiar v. Adaikappa-Chetty, AIR 1934 Mad 730 (2) (G) :

'Some decisions put a very strict construction upon the rules of Order 22 and go the length o. 'holding, that unless all the legal representatives are actually on record, there can be no representation at all and the whole decree is void : see for instance Chuni Lal v. Aminchand, AIR 1933 Lah 356 (2) (H); ILR 30 All 117 (C) and AIR 1927 Lah 94 (D). The preponderance of authority is, however, in favour of the view that there will be no abatement if at least some representatives are on record : see for instance Shib Dutta Singh v. Karim Baksh, AIR 1925 Pat 551 (I); and Mr.. Begam Jan v. Mt. Jannat Bibi, AIR 1927 Lah 6 (J) see also Rimanathan Chettiar v. Ramana-than Chettiar, AIR 1929 Mad 275 (K). Apart from the provisions of Order 22, the question whether in any suit, an estate can in the first instance be represented by some of the' heirs entitled thereto in the. absence of other heirs, has often come up for consideration and the preponderance of authority is in favour of the view that, in the absence of fraud or collusion, the representation by some of the heirs-will be sufficient representation: see Kadir Mohideen v. Muthukrishna Ayyar I L R 26 Mad 230 (L) ; Govindaswami v. Annamalai, AIR 1927 Mad 1071 (M); Abdulla Sahib v. Vajeer Beevi Ammal, A I R 1928 Mad 1199 (N) and Jahrabi v. Bismlllabi, AIR 1924 Bom 420 (O). Much the same reasoning has been imported even in the construction of the provisions of the old Code corresponding to Order 22, in the judgment of this Court in Musala Reddi v. Ram-ayya, I L R 23 Mad 125 (P).

5. The spirit of Order 22 of the Civil Procedure Code may be taken to be to determine the rights and liabilities of the parties finally and conclusively if it is possible to do so in cases in which any one of the parties dies. A case should not be left undecided. It is not meant to be left at an intermediate stage ifit is possible to have it finally determined. In caseof the death of a plaintiff when the court comes to know of his death and of the persons who are competent to represent the deceased plaintiff after his death, it is competent for the court to take suitable action. Viewed in this light, in my humble opinion the words 'legal representative' must be construed as including those persons who are in opposition to carry on further proceedings in the suit. Normally such persons are all the heirs of the deceased plaintiff. There may be cases where even some of the heirs may represent the deceased plaintiff. In all the cases, such persons may be the legal representatives of the deceased within the meaning of Order 22, Rule 3 of the Civil Procedure Code.

6. An application must be made for bringing on record those persons who had the right in law to continue the suit filed by the deceased plaintiff, that is who represent him for the purpose of prosecuting the suit. If their names have been brought to the notice of the court, it becomes the duty of the court to array them as party whether as plaintiffs or defendants. Order 22 rule 3 (1) is purposely worded in sufficiently wide language. Once the court is made aware oC the persons who are in the position to prosecute the suit, it is left to it to make them a party.

7. In the case before me, the two plaintiffs Abdul Samad and Chand Mohammad became tenants-in-common with Mst. Asmat Nuri and Abdul Rahman in the room in dispute left by deceased Abdul Karim, even on the assumption that they had no interest in the life time of - Abdul Karim. It is settled law that one of the co-sharers has a right to eject a trespasser without joining the other co-sharers. After the death of Abdul Karim, the two appellants Abdul Samad and Chand Mohammad, could, therefore, carry on the suit filed by their father Abdul Karim to eject the defendants who were alleged to be trespassers. They would, therefore continue the suit filed by their father. If the other co-sharers Mst. Asmat Nuri and Abdul Reh-man wanted to join with them in that litigation, the court had ample powers under Order 1, Rule 10 to im-plead them though their application under Order 22, Rule 3 dated the 30-7-1951 was dismissed. One of the reasons why the son was held to continue the appeal filed by his father in Ishwarlal's case (F) was that if the son of the deceased-appellant wanted the injunction and the mother was indifferent about it, the appeal could proceed with. In the case before me, the two appellants Abdul Samad and Chand Mohammad had the right to eject the trespassers from the disputed room and I do not find any reason why such right should be denied to them when they had within limitation applied to the court of the Munsif on the 18-4-1951, that the suit filed by their father may, henceforward, continue in their names.

8. In this view of the matter, I allow the appeal and set aside the judgments of the courts below. I grant the application of Abdul Samad and Chand Mohammad dated the 18-4-1951. As they are already on record as plaintiff's it is only necessary that the name of Abdul Karim be struck off. I order that his name be struck off. I further treat the applications dated the 30-7-1951 made on behalf of Mst. Asmat Nuri and Abdul Reman to be u:^der Order 1, Rule 10, Civil P. C., and order that they should be made plaintiffs in this case. I remand the case to the trial court for decision in accordance with law after carrying out the directions contained above. The costs in this appeal and in the lower appellate court shall abide by the result.


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