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Mst. Pemi Bai Vs. Smt. Sankalibai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Regular Second Appeals Nos. 203 and 205 of 1969
Judge
Reported in1981WLN553
AppellantMst. Pemi Bai
RespondentSmt. Sankalibai and ors.
Cases ReferredMahabir Prasad v. Jaga Ram
Excerpt:
.....record, even though in another capacity, the proceedings will not abate simply because the other legal representatives are there and an application has not been made in time to bring them on the record, appear to be contrary to what was observed by a learned single judge of this court in bhanwarlal v. it was also stated that it is well settled that if even one of the legal representatives of a deceased plaintiff/defendant/appellant/respondent is already on record in any other capacity, there is no necessity to apply for bringing his other legal representatives on record and further that there is no time limit for bringing on record any of the other legal representatives and that the suit or the appeal as the case may be does not abate. vyas, learned counsel for the appellant that for..........record, even though in another capacity, the proceedings will not abate simply because the other legal representatives are there and an application has not been made in time to bring them on the record, appear to be contrary to what was observed by a learned single judge of this court in bhanwarlal v. bhuli air 1972 raj 205. he has, therefore, referred the following question for determination:whether in the facts and circumstances of the case, the appeals abate as against the deceased-respondent phooli bai and if so, whether the appeals can be proceeded in the absence of smt. lehri bai, daughter of the deceased phooli bai?these two appeals are before us for answering the above question.2. it may be stated here that s.b. civil second appeals no. 203 of 1969 and 205 of 1969 arise out of.....
Judgment:

N.R. Mal Lodha, J.

1. A learned Single Judge of this Court was of the view that the observations made by a Division Bench of this Court in Fakira v. Board of Revenue to the effect that it is well settled that in a case whereone of the legal representation of the deceased appellant or respondent is already on record, even though in another capacity, the proceedings will not abate simply because the other legal representatives are there and an application has not been made in time to bring them on the record, appear to be contrary to what was observed by a learned Single Judge of this Court in Bhanwarlal v. Bhuli AIR 1972 Raj 205. He has, therefore, referred the following question for determination:

whether in the facts and circumstances of the case, the appeals abate as against the deceased-respondent Phooli Bai and if so, whether the appeals can be proceeded in the absence of Smt. Lehri Bai, daughter of the deceased Phooli Bai?

These two appeals are before us for answering the above question.

2. It may be stated here that S.B. Civil Second Appeals No. 203 of 1969 and 205 of 1969 arise out of Civil Original Suits No. 41 of 1964 and 45 of 1964. Civil Original Suit No. 44 of 1964 was instituted by the plaintiff Smt. Pemi Bai against the defendants Jethmal and Moolchand Sons of Phool Chand for the recovery of Rs. 2547/- on the basis of a Khata dated April 1, 1964 alleged to have been executed by the defendants Jethmal and Moolchand and Chenmal son of Visaji, who had died on June 24, 1964 and his heirs were the aforesaid two defendants. Civil Original Suit No. 45 of 1964 was instituted by the plaintiff Smt. Pemi Bai on the basis of a khati dated March 21, 1964 alleged to have been executed by one Chenmal Son of Visaji against the defendants Jethmal and Moolchand as they were legal representatives of deceased Chenmal being in possession of Chenmal's property as also being legatees under a will executed by Chenmal in their favour, for the recovery of Rs. 2977.50 P. During the pendency of the aforesaid suits, defendant Jethmal died and his heirs were brought on record, who are respondents No. 1/1 to 1/6 in these appeals. After trial, the suits of the plaintiff were dismissed. Feeling aggrieved, the plaintiff has preferred these appeals under Section 100 of the Code of Civil Procedure.

3. During the pendency of these appeals, an application dated June 3, 1975 was submitted on behalf of the appellant for striking off the names of respondents No. 1/5 Smt, Lehribai and respondent No. 1/6 Phoolibai. This application was supported by the affidavit of Lalchand. In the affidavit, it was stated that Smt. Phoolibai (respondent No. 1/6), mother of defendant Jethmal had died but date of her death could not be asertained and that her Son Moolchand is her only heir and is already on record a; respondent No.2. The copy of this application was delivered to the Counsel for the respondents. On July 21, 1975, learned Single Judge of this Court allowed the application dated June 3, 1975 filed on behalf of the appellant, by which, he prayed that the names of respondents No. 1/5 and 1/6, who have died leaving only these legal representatives who are already on record, be deleted. The amended cause title was submitted on October 6, 1975. On July 6, 1979, an application was moved on behalf of the respondents that Smt. Phoolibai (respondent No. 1/6) died on Asoj Sud 5 Samvat 2027 leaving behind her daughter Smt. Lehribai wife of Mohanlal resident of Bisalpur and that as no application has been made for substituting the legal representatives of the deceased Smt Phoolibai in time, the appeal may 'be dismissed as abated.' In support of the aforesaid application dated July 6, 1979, affidavit of Moolchand (respondent No.2) was filed. On March 26, 1980, reply to the said application was filed on behalf of the appellant contesting it on various grounds. It was stated that Smt. Phoolibai (respondent No. 1/6) had left behind her one son Moolchand (respondent No. 2) and one doughter Smt. Lehribai and that Lalchand Umedmal, who gave affidavit in support of the application for deletion of the name of respondents No. 1/5 and 1/6, had no knowledge about this fact. It was submitted that Moolchand, who is the son of Smt. Phoolibai and who is in possession of the property of his late father Phoolchand and being one of the legatees of late Chenmal sufficiently represents the estate of Smt. Phoolibai and it is not necessary to bring on record Smt. Lehribai daughter of the deceased Smt. Phoolibai. It was also stated that it is well settled that if even one of the legal representatives of a deceased plaintiff/defendant/appellant/respondent is already on record in any other capacity, there is no necessity to apply for bringing his other legal representatives on record and further that there is no time limit for bringing on record any of the other legal representatives and that the suit or the appeal as the case may be does not abate. In other words, it was contended that the appeals do not abate. It was also submitted that the appellant will have no objection in sending notice to Smt. Lehribai, if the respondents supply correct address showing where town or village of Bisalpur is situated. The learned Single Judge heard the arguments on the question of abatment of the appeals and according to him, the question that emerged for consideration in the light of the arguments advanced before him was as to what is the effect of not submitting an application for bringing the legal representative on record in time, although Moolchand one of the heirs of the deceased Smt. Phoolibai was already on record and that she Was survived by her daughter Smt. Lehribai besides her son Moolchand. According to the learned Judge, the observations made in Fakira's case referred to in the order of reference were contrary to what was observed in Bhanwarlal's case AIR 1972 Raj 205, and, therefore, he has referred to aforesaid question for answer.

4. We have heared Mr. M.M. Vyas, learned Counsel for the appellant and Mr. H.M. Parekh, learned Counsel for respondent No. 2.

5. It was contended by Mr. Vyas, learned Counsel for the appellant that for failure to make an application for bringing on record Smt. Lehribai, who is one of the legal representatives of the deceased Smt. Phoolibai in time, the appeals do not abate as (i) Moolchand respondent No. 2) who is one of the legal representatives of Smt. Phoolibai although in another capacity is on record and he sufficiently represents the entire estate of the deceased Shit. Phoolibai; (ii) the legal representatives of one of the legal representatives are not necessary parties; and (iii) the objection that Smt. Lehribai who is one of the legal representatives of Smt, Phoolibai was not brought on record was raised at a very late stage in as much as the proceedings which were taken in the appeals from time to time amply show that the respondents have abandoned the objection regarding effect of non-impleading Smt. Lehri Bai as one of the legal representatives of Mst. Phoolibai (respondent No. 1/6). In support of his submissions, Mr. Vyas, learned Counsel for the appellant relied in Dayaram v. Shyama Sundri : [1965]1SCR231 , Mohd. Sulaiman v. Mohd. Ismail : [1966]1SCR937 , Dalai Malika v. Krissna Chandra : AIR1967SC49 , Mahabir Prasad v. Jagaram : [1971]3SCR301 , Fakira's case and Harihar Prasad v. Balmiki Prasad : [1975]2SCR932 .

6. On the other hand, Mr. Parekh, learned Counsel for respondent No. 2 strenuously argued that for failure to implead Smt. Lehribai, who is one of the legal representatives of Smt. Phoolibai (respondent No. 1/6), the appeals should be dismissed as having abated because of the decree of the dismissal of the suit against one of legal representatives of Smt. Phoolibai, if the appeals succeed, would be ineffective. He invited our attention to Roop Chand v. Mithalal , Jawarimal v. Mangilal 1961 RLW 213, Bhanwarlal's case AIR 1972 Raj 205, R.R. Gupta v. Murli Prasad : [1973]1SCR63 , B.S. Singh v. R.D. Singh AIR 1973 SC 204, Nathu v. Laxmi Harayan AIR 1974 Raj 153 and Teju v. Board of Revenue 1977 RLW 124.

7. Before we proceed to answer the question referred to us, we may state that the facts stated here in are not in dispute. At the risk of repetition, we may state that deceased Jethmal, who was the defendant in the trial court died during the pendency of the suits and alongwith others, Smt. Phoolibai (respondent No. 1/6) was substituted as his legal representative. The legal representatives of Smt. Phoolibai respondent No. 1/6) are her son Moolchand (respondent No. 2) and her daughter Smt. Lehribai. Moolchand (respondent No. 2) is already on record in another capacity and he is also one of the legal representatives of Smt. Phoolibai, who was substituted as one of the legal representatives of the deceased Jethmal in the trial court and that no application to bring Smt. Lehribii on record as the other legal representative of the deceased Smt. Phoolibai (respondent No. 1/6) was moved in time. It may also be mentioned here that Moolchand (respondent No. 2) who is already on record in another capacity and is one of the legal representatives of Smt. Phoolibai is contesting the appeal and it is on his behalf that the objection has been raised that the appeals have abated as Smt. Lehribai had not been brought on record as one of the legal representatives of Smt. Phoolibai (respondent No 1/6) within time allowed bylaw. No allegation, however, has been made either suggesting that the appellant had not made diligent and bonafide enquiries regarding who the, legal representatives of deceased Smt. Phoolibai (respondent No. 1/6) were or that they had any motive fraudulent or otherwise in not adding Smt Lehribai as legal representative. On these facts, we are called upon to determine the question that in a case where one of the legal representatives of the deceased-respondent is already on record, even though in another capacity, whether appeal will abate simply because the other legal representative is there and an application has not been made in time to bring him/her on the record?

8. The relevant portion of Order XXII Rule 4 C.P.C. is as follows:

Order XXII Rule 4 Procedure in case of death of one of several defendants or of sole defendant: (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole-surviving defendant dies and the right to sue survives* the Court, on ad application made in that behalf, shall cause the legal representatives of the deceased defendant to be made a party and shall proceed with the suit.

(2) .....

(3) Where within the time limited by law no application is made under Sub-rule (1), the suit shall abate as against the deceased defendant.

The aforesaid provisions of Order XXII Rule 4 C.P.C. came up for interpretation before their Lordships of the Supreme Court in Dayaram's case : [1965]1SCR231 and it was observed as under:

The almost Universal consensus of opinion of all the High Courts is that where a plaintiff or i an appellant after diligent and bonafide enquiry ascertains who the legal representatitives 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 the impleaded legal representatives sufficiently represent the estate of the deceased and that a decision obtained with them on record wilt bind not merely these impleaded but the entire estate including those not brought on record.

(Emphasis added)

It was also held that in a case where the person brought on record is a legal representative, it would be consonant with justice and principle, that in the absence of fraud or collusion the bringing on record of such a legal, representative is sufficient to prevent the suit or the appeal from abating. It will be useful to excerpt the following occurring in para 12 of the: report:... that though the appeal has not abated, when once it is brought to the notice of the Court hearing the appeal that some of the legal representatives of the deceased respondent have not been brought on record, and the appellant is thus made aware of this default on his part, it would be his duty, to bring those others on record, so that the appeal could be properly constituted.

(Italics is ours)

Dayaram's case : [1965]1SCR231 was relied on in Mohd. Sulaiman's case : [1966]1SCR937 . In Mohd. Sulaiman's case : [1966]1SCR937 , it was observed as under:

In a suit instituted against the heirs of a deceased, debtor, it is. the creditor who takes upon himself the responsibility to bring certain persons as heirs and legal representatives of the deceased on the record. If he has proceeded bonafide and after due enquiry and under a belief that the persons who are brought on the record are the only legal representatives, it would make no difference in principle that In the former case the heirs have been brought on the record during the pendency of the suit, the creditor having died since the institution of the suit and in the other instance of the plaintiff certain persons are impleaded as legal representatives of the deceased person. In either case, where after due enquiry certain persons are impleaded after diligent and bonafide enquiry in the genuine belief that they are the only interested in the estate, the whole estate of the deceased will be duly represented by those persons who are brought on the record or impleaded and the decree will be binding upon the entire estate. This rule will of course not apply to cases where there-has been, fraud or collusion between the creditor and the heir impleaded or where there are other circumstances which indicate that there has not been a fair or real trial; or that the absent heir had a special defence which was not and could not be tried in the earlier proceeding.

In Dalal Malika's case : AIR1967SC49 , their Lordships of the Supreme Court after considering Dayaram's case : [1965]1SCR231 and Mohd. Sulaiman's case : [1966]1SCR937 ruled that unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceeding, there is no reason why the heir who have applied for being brought on record should not be held to represent the entire estate including the interests of the heirs not brought on record. The principle of representation of the entire estate of the deceased party by some of its heirs was reiterated.

9. The provisions of Order XXII Rule 4 CPC read with Order XXII Rule 11 C.P.C. again carte up for consideration before their Lordships of the Supreme Court in Mahabir Prasad's case : [1971]3SCR301 . In that case, it was held that where in a proceeding, a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative and that even if there are other heirs and other legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act, the proceeding will not abate. In Harihar Prasad's case : [1975]2SCR932 , their Lordships of the Supreme Court after relying the aforesaid four Supreme Court decisions observed as follows:

Where a plaintiff or an appellant after diligent and bonafide enquiry ascertains who the lagal 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: the impleaded legal representatives sufficiently represent the estate of the deceased and the decision obtained with them on record binds not merely those impleaded but the entire estate including the interest of those not brought on record.

(Emphasis supplied).

In that case, the State of Punjab v. Nathuram AIR 1962 SC 39, Ram Sarup v. Munshi : [1963]3SCR858 and Rameshwar Prasad v. Shyam Beharilal : [1963]2SCR534 were distinguished and explained.

10. Before a Division Bench of this Court in Fakira's case , a some what similar question with which we are concerned in this appeal arose. The Division Bench after relying on Kodir Mchideen v. Muthukrishna Ayyar 1903 ILR 26 Mad 230, Dayaram's case : [1965]1SCR231 , Poonamchand v. Motilal AIR 1954 Raj 237, Dalai Malika's case : AIR1967SC49 and Mahabir Prasad's case : [1971]3SCR301 held that the question of abatement for failure to bring one of the legal representatives on the record within the prescribed time limit, has to be examined with reference to the question of sufficiency of the representation of deceased and an appeal will not, therefore, abate for the omission to bring the remaining legal representatives on the record in time, and that where some of the legal representatives have not been brought on the record, it would of course be the duty of the appellant to bring them also on the record to complete the array of the parties. It was laid down as under;

In a case where one of the legal representatives, of the deceased appellant or respondent is already on the record, even though in another capacity, the appeal will not abate simply because the other legal representatives are there and an application has not been made in time to bring them on the record.

From the aforesaid decisions of the Supreme Court and this Court, the following principles can be deduced:

(1) Where a plaintiff or an appellant after diligent and bonafide 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 abatment of the suit or appeal;

(2) the impleaded legal representatives sufficiently represent the estate of the deceased and the decision obtained with them on record binds not merely those impleaded but the entire estate including the interest of those not brought on record provided there is no fraud or collusion;

(3) where in an appeal, a party dies and one of the legal representatives is already on the record in another capacity, the appeal does not abate even though no application is made to bring its other legal representatives on record; and

(4) when once it is brought to the notice of the Court hearing the appeal that some of the legal representatives of the deceased respondent have not been brought on record, and the appellant is thus made aware of this default on his part, it would be his duty to bring the others on record, so that the appeal could be properly constituted.

Keepting the above principles in view, we are of opinion that the appeals do not abate on account of failure of the appellant to move an application for bringing Smt. Lehribai who is one of the legal representatives of Smt. Phoolibai (respondent No. 1/6) on record within the time allowed by law, for, Moolchand (respondent No. 2), the other legal representative of Smt. Phoolibai (respondent No. 1/6) is already on record is another capacity, who has raised the objection regarding abatement of the appeals.

11. Now we may notice the authorities on which Mr. Parekh, learned Counsel for respondent No. 2 has placed reliance.

12. In Bhanworlal's case AIR 1972 Raj 205, a learned Single fudge of this Court found that the appeal has abated in respect of the interest of the widow, daughter and son of the deceased and that if the appeal is allowed only against the surviving respondents who are on the record, the result would be that there would be the two inconsistent decrees-one decree in favour of the auction-purchaser-appellant against the respondents on the record in respect of the interest of Mst. B and the other decree of the lower appellate court against the appellant in respect of the interest of M's widow, daughter and son and as such the appeal has abated as a whole and must be dismissed. The argument that B being Karta of the family represented heirs and legal representatives of deceased M was not acceded to. The learned, Judge also examined the alternative submissions viz. that one of the heirs of namely Mst. B being already on the record in another capacity, it is not necessary to bring his other heirs and legal representatives of M by making an application within the period of limitation prescribed for the purpose and the appeal will not abate. In that connection, the learned Judge after noticing the observations made in Dayaram's case : [1965]1SCR231 cams to the conclusion that they do not help the appellant, for, it is not his case that after diligent and bonafide inquiry he could not ascertain who the legal representatives of the deased respondent are, and on the other hand made an application for bringing on record all the legal representatives of IVI and then withdrew it. The learned Judge observed as under:

It is remarkable that inspite of the whole position of law having been argued out thread bare, the appellant still insisted on not making a fresh application for bringing on record the other legal representatives of deceased Mohanlal viz. his widow, daughter and son and insisted that no such application was required. It is indeed unfortunate that the application dated 24th Feb. 1969, for substituting the legal representatives of Mohanlal was withdrawn and no such application was made subsequently.

The learned Judge explained the observations made in Mahabir Prasad v. Jaga Ram : [1971]3SCR301 . Having read the decision rendered in Bhanwarlal's case AIR 1972 Raj 205, we are firmly of the opinion that it is of little assistance and from this decision we are unable to infer that it lays down that where one of the legal representatives of a deceased is already en record in another capacity, the appeal will abate if there are other heirs and legal representatives and no application for impleading them has been made within the time of limitation prescribed by the Limitation Act. So far as the decision rendered in Roopchand's case , Jawarimal's case 1961 RLW 213 and Nathu's case AIR 1974 Raj 153 are concerned, suffice it to state that the Division Bench of this Court in Fakira's case found that these decisions were rendered in their peculiar facts and they need not be examined in detail.

13. Learned Counsel for the respondents placed strong reliance on R.R. Gupta's case : [1973]1SCR63 . In that case, one of the respondent bad died during the pendency of the appeal and none of his legal representatives were brought on record within the time of limitation prescribed for the purpose. This is clearly distinguishable, The following three tests are mentioned in it.

The Courts will not proceed with an appeal:

(a) When the success of the appeal may lead to the Court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent, and, therefore, it would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent;

(b) When the appellant could not have brought the action for the necessary relief against these respondents alone who are still before the Court;

(c) When the decree against the surviving respondents if the appeal succeeds be ineffective that is to say it would not be successfully executed. These three tests are not cumulative tests. Even if one of them is satisfied, the Court may dismiss the appeal.

14. Mr. Parekh, learned Counsel for respondent No. 2, submitted that the last test namely when the decree against the surviving respondents, if the appeal succeeds be ineffective that is to say, it could not be successfully executed applies to the appeals in hand. We are unable to agree as Moolchand, who is one of the legal representatives of Smt. Phoolibai is already on record in another capacity and he sufficiently represents the estate of the deceased. Learned Counsel cannot take any advantage of R.R. Gupta's case : [1973]1SCR63 and it is not applicable.

15. So far as Teju's case 1977 RLW 124 is concerned, we may point out that m that case, the decree was joint and indivisible one against all the defendants and not against each of them seperately and, therefore, it was held that the death of some of the defendant would result not only in the appeal having abated with regard to the deceased-appellant but will have life inevitable consequence that the appeal by the other appellants could not be proceeded with. This decision is also of no avail.

16. For the reasons mentioned above, the answer to the question referred to us is that in the facts and circumstances of these cases, the appeals do not abate against the deceased respondent Smt. Phoolibai (respondent No. 1/6) as one of her legal representative Moolchand (respondent No. 2) is already on record in another capacity and he sufficiently represents the estate of the deceased Smt. Phoolibai and there is no allegation of fraud or collusion for not impleading Smt. Lehribai, daughter of Smt. Phoolibai in time. However, the appeals shall be decided on the merits after bringing Smt. Lehribai, the other legal representative of Smt. Phoolibai on record so as to complete the array of the parties.

17. Let the answer be returned to the Bench concerned for taking further proceedings in the appeals.


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