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Khatija Bi and ors. Vs. Babu Sahib and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in14Ind.Cas.544
AppellantKhatija Bi and ors.
RespondentBabu Sahib and ors.
Cases Referred and Dean v. MacDowell
Excerpt:
.....were acceded to, the result would be either that the shares which they claim in their own right as heirs of amir sahib would remain unrepresented or they must figure both as plaintiffs and defendants in the same suit, which is clearly opposed to well established principles of procedure. we fail to see how, by adding the present cause of action to the cause of action for their own shares, the petitioners could be permitted to say that the present cause of action becomes transmuted into a fresh one. assuming that the same person cannot be plaintiff and defendant at the same time, the procedure code vests ample power in the courts to transpose a defendant as plaintiff and to strike out the name of any defendant when there are good reasons for doing so. similarly, we think the fact that..........held that, on the death of pattuma bi, the original plaintiff, the cause of action survived to her heirs, defendants nos. 4 to 7, and yet he refused to allow them to be substituted in the place of the deceased pattuma bi. there is no provision in the code permitting this to be done, and the petitioners are entitled to argue that in dismissing the petition on. the ground that under the code he had no power to allow them to come on the record as plaintiffs representatives, the munsif jailed to exercise the jurisdiction vested in from of bringing on record the heirs of the deceased plaintiff. in. this view the district judge's order should be held to be open to the same objection. we must hold that, if the munsif was bound to allow the defendants nos. 4 to 7 to prosecute the suit in the.....
Judgment:

1. This is an appeal against the judgment of Abdur Rahim, J. Reported in 8 Ind. Cas. 859 in a petition to this Court for revising the order of the District Judge of North Arcot. A suit was instituted in the District Munsif's Court of Ami by a Muhammadan female, the daughter of one Amir Sahib, for the recovery of her share of the property of Amir Sahib. Defendants Nos. 1 to 15 were Amir Sahib's other heirs. The 7th defendant was his second wife and the plaintiff and defendants Nos. 4 to 6 her children. Defendants Nos. 1 to 3 are Amir Sahib's children by his first wife, deceased. It is unnecessary to set out the exact relationship of the other heirs to Amir Sahib. Defendants Nos. 4 to 7 applied to the Munsif to be brought on the record as the representatives of the plaintiff, her share in the estate of Amir Sahib having vested in them as heirs under the Muhammadan Law. The District Munsif dismissed the application on the ground that the result of granting it would be that the defendants Nos. 4 to 7 would lose their position as defendants and the suit would became defective in form. He added-'If their position as defendants is changed into that of plaintiffs they must sue for a greater share than was claimed by the late plaintiff to avoid the aforesaid defect.' The District Judge confirmed the Munsif's order on appeal. He was of opinion that Chapter XXXI of the old Procedure-Code and the corresponding provisions of the present Code were 'limited to cases in which the party applying to be brought on the record is either not on record at all, or if he or she is already on record, he or she appears on record on the side of the party who has died and as whose legal representative he or she claims to be made a party.' Our learned brother, Abdur Rahim, J., took the same view. He observed: 'If the prayer of the petitioners were acceded to, the result would be either that the shares which they claim in their own right as heirs of Amir Sahib would remain unrepresented or they must figure both as plaintiffs and defendants in the same suit, which is clearly opposed to well established principles of procedure.' In answer to the petitioner's contention that Section 371 of the old Code would be a bar to defendants Nos. 4 to 7 instituting a fresh suit for recovery of the plaintiff's share of Amir Sahib's estate, the learned Judge observed that a suit brought by the defendants, Nos. 4 to 7 for the recovery both of the shares to which they were originally entitled as Amir Sahib's heirs and the share to which they subsequently became entitled as the plaintiff's heirs would not be based on the same cause of action as the present suit. He was also of opinion that the decisions in Rustomji v. Seth Purshotamdas 25 B.k 606 and Umrao Begum v. Irshad Husain 21 I.A. 163 were opposed to the petitioner's contention, and he consequently dismissed the revision-petition. The learned Judge based his order of dismissal also on another ground, namely, that, assuming the District Judge's order was wrong, there was no question for the consideration of this Court in revision under Section 115 of the Code as the objection to the judgment of the lower Court could only be regarded as an erroneous decision on a question of law. In this appeal, the respondent repeated his contention that this Court could not interfere in revision with the District Judge's order. It is desirable to dispose of this contention first inasmuch as, in case we uphold it, it would be unnecessary to consider the appeal on the merits.

2. The case was decided by the lower Courts according to the provisions of the repealed Code of Civil Procedure. Under that Code, if the cause of action survived to the heirs of a deceased plaintiff, his legal representatives were entitled to be brought on the record to prosecute the suit. The District Judge held that, on the death of Pattuma Bi, the original plaintiff, the cause of action survived to her heirs, defendants Nos. 4 to 7, and yet he refused to allow them to be substituted in the place of the deceased Pattuma Bi. There is no provision in the Code permitting this to be done, and the petitioners are entitled to argue that in dismissing the petition on. the ground that under the Code he had no power to allow them to come on the record as plaintiffs representatives, the Munsif Jailed to exercise the jurisdiction vested in from of bringing on record the heirs of the deceased plaintiff. In. this view the District Judge's order should be held to be open to the same objection. We must hold that, if the Munsif was bound to allow the defendants Nos. 4 to 7 to prosecute the suit in the place of the deceased plaintiff, the matter is one which this Court is competent to take notice of in revision. We have, therefore, to consider the main question raised in the case whether the defendants Nos. 4 to 7 were, in consequence of their being originally ranged as defendants in the suit which was instituted by the deceased Pattuma Bi, as plaintiff, disentitled to apply to be made plaintiffs in the suit in the place of Pattuma Bi.

3. It may be observed that the petitioners did not contest the original plaintiff's right to recover her share of Amir Sahib's property and Pattuma Bi claimed no relief against them hostilely, but they were necessary parties to the suit as co-sharers with Pattuma Bi and the other defendants. It is strongly urged that the law does not allow the defendant in a suit to be made a plaintiff as the representative of the original plaintiff, as the result would be to make the same party both plaintiff and defendant. Now, there is no section in the Procedure Code expressly providing for such a case. We have, therefore, to decide the question on general principles. At common law, the general rule was stated to be that the same person cannot be both plaintiff and defendant. See Dicey on Parties to an Action, page 65. The principle of the rule, no doubt, was, as stated by the learned author, that it was impossible for a man to infringe on his own rights or do himself an injury in the legal sense of the term. The author says: 'But as a rule of law, it has the further application that where two or more persons must join as plaintiffs in an action, they cannot bring any action in which it would be necessary to make one of them defendants.' This application of the rule must have as its basis the principle that a relief cannot be granted to a person against himself. The rule was applied to cases of action by one partner against other partners and to cases of suits by a partnership against another partnernship in which the same person was a member of both partnerships. It was not applicable to incorporated compaines for the company, in the eye of the law, is a legal person apart from its share-holders, even taking them all together. A shareholder could, therefore, sue the company which could sue him. Now, there can be no doubt that we must accept the principle that no Court can grant a relief to a person against himself. The point that we have to decide is the scope and operation of the Rule in cases where the rights of a deceased plaintiff or defendant devolve by succession on a person originally ranged against him in the suit. It is important to bear in mind Section 371, corresponding to Order XXII, Rule 9 of the present Code, according to which, when a suit is dismissed on the ground that the cause dogs not survive, a fresh suit cannot be instituted on the same cause of action. What would be the result of holding that, although the cause of action survives, the-suit abates and must be dismissed? In our opinion, the result would be that the representatives to whom it survives could not sue again on that cause of action. In this case, supposing the defendants Nos. 4 to 7 instituted a fresh suit for the aggregate share claimed by them as the heirs of Amir Sahib and of Pattuma Bi, would not the other defendants be entitled to Say that the cause of action in the suit, in so far as the suit relating to the share inherited by the petitioners as Pattuma Bi's heirs is concerned, is identical with that in the present suit. Abdur Rahim, J., is of opinion that such a plea would not be successful, for, he says, the new suit would not be based on the same cause of action as the present one. With all deference, we are unable to concur in his opinion. We fail to see how, by adding the present cause of action to the cause of action for their own shares, the petitioners could be permitted to say that the present cause of action becomes transmuted into a fresh one. In our opinion, the petitioners would find it impossible to institute another suit for Pattuma Bi's share for which Pattuma Bi herself had commenced an action. It being clear, then, that the cause of action survived on Pattuma Bi's death to her heirs and that the petitioners could not institute another suit for her share of the property, is there any principle of law which would drive us to hold that it is impossible to substitute the petitioners for Pattuma Bi as plaintiffs?

4. If there were any contentious questions between Pattuma Bi and the petitioner in the persent suit, the question would indeed then be more difficult than it actually is, in our opinion, in this case. The case is not one in which Pattuma Bi alleged any infringement of her rights by defendants Nos. 4 to 7 which would necessitate the petitioners, if they come in as her heirs, to urge any contentions against themselves. Assuming that the same person cannot be plaintiff and defendant at the same time, the Procedure Code vests ample power in the Courts to transpose a defendant as plaintiff and to strike out the name of any defendant when there are good reasons for doing so. We see no difficulty in directing that the petitioners' names as defendants should be struck out and that they should be substituted in Pattuma. Bi's place as plaintiffs. As the representatives of the deceased plaintiff, the petitioners can only claim her share in Amir Sahib's property and could only urge contentions consistent with the case put before the Court by plaintiff. It does not appear from the records in the suit that the petitioners expressed a wish to have their own shares as Amir Sahib's heirs allotted to them. It may be that it would have been open to them to do so later on before the conclusion of the trial. Assuming such to be the case, we find no serious dfficulty in holding that the petitioners might claim Pattuma Bi's share as her representatives and their own shares in addition. It must be noted that as representatives of Pattuma Bi, the claim to her share would not be made by the petitioners in a different character such as would be the case if the claim was made on behalf of a trust. Their claim to Pattuma Bi's share would, as such, be made in their own personal right, as their own share though Pattuma Bi's share comes to them by inheritance from her and not from Amir Sthib directly, both shares would belong to the petitioners in their own personal right. No doubt, when they come in as representatives of Pattuma Bi, they cannot urge any contentions inconsistent with those previously urged by, her; but, that is only because they are bound, to carry on the suit from the point at which Pattuma Bi left it so far as her share is concerned* This fact does not alter the character of the claim to the two shares that the petitioners would take in Amir Sahib's property. We think the position is the same really as it would have been if Pattuma Bi had died without having instituted any suit, in which case, there would be no doubt that the petitioners would be entitled to claim both their own shares in Amir Sahib's estate, and another share of it as the heirs of Pattuma Bi; in both cases equally the claim to the latter share must be regarded as made by the petitioners as Pattuma Bi's heirs. It is, however, unnecessary for us to consider this question further inasmuch as no claim has yet been made by the petitioners to have their own shares of Amir Sahib's property allotted to them. It is sufficient to observe that there would be no insuperable difficulty in dealing with such claim if they should make it after they are substituted in the place of Pattuma Bi as plaintiffs and are removed from the position they at present occupy a3 defendants. It is for the petitioners to decide whether they should or should not claim their own shares also as Amir Sahib's heirs in this suit, having regard to the possibility of an objection that may be raised by the defendants under Order II, Rule 2, in bar of a fresh suit.

5. We have considered carefully Rustomji v. Seth Purushotamdas 25 B.k 606 and Umrao Begam v. Irshad Husain 21 I.A. 163. Both the decisions seem to us to be authorities in favour of the petitioners.

6. In Rustomji v. Seth Purushotamdas 25 B.j 606 a suit was instituted by one Purushotamdas against a firm of which his son, Nagindas, was a partner. Nagindas was also a co-sharer with Purushotamdas in the subject-matter of the suit as the business, in respect of which the latter made his claim in the suit, belonged to the joint family of which he and his son, Nagindas, were the members. After Purushotamdas had obtained a decree in the Court of first instance, two of the defendants, one of whom was a surety for the debts sought to be recovered, preferred an appeal. The question arose, whether Nagindas, though a partner of the defendant's firm, could be substituted for Purushotamdas as respondent. Jenkins, C.J., and Chandavarkar, J., held that he could. They were of opinion that though a decree for money could not be passed against the defendant's firm in favour of Nagindas, as he himself was one of the partners of that firm and the decree would, therefore, be partly against him, the rights of Nagindas and the other members of the partnership could be adjusted and determined. The learned Judges observed:

While at common law, the rule that the same person cannot be both plaintiff and defendant often led to the dismissal of a suit or appeal, the Courts of equity surmounted this difficulty. Though they observed strictly the rule that a man cannot be both plaintiff and defendant, they did not allow it to stand in the way of doing justice between the parties; for provided all interested were before the Court either as plaintiffs or as defendants, they adjusted and determined their rights. Similarly, we think the fact that Nagindas was interested both as creditor and debtor cannot stand in the way of our adjusting the rights of the parties in accordance with the enjoined rule of justice, equity and good conscience. To learn the goal to which that guiding principle should direct our steps, it will be well to consider separately what the rights of Purushotamdas and then of Nagindas would have been had the money advanced been in each case his alone. Now, if Purushotamdas had been the sole creditor, he clearly could have recovered the amount in a suit properly framed for that purpose; had the advance been out of Nagindas's separate moneys, a suit to recover that money would not have lain; for one partner cannot sue for money lent by him to a firm of which he is a member, as the advance would be but an item in the partnership account. This, we think, gives a clue to the proper equitable principle to be applied here, First, we must determine the shares in which Purushotamdas and Nagindas were interested in the firm of Gordhandas Bhagwandas. In some cases, this might be a matter of considerable difficulty, but not in the present instance; for, it is not questioned that the two were equally interested in this firm and we think we are entitled to take that as the basis of adjustment.

That it is within the power of the Court to administer equity on these lines is, we think, to be inferred from Piercy v. Fynney (1871) L.R. 12 Eq. 69. Therefore, we think there should, in the lower Court, have been a declaration that Purushotamdas and Nagindas were entitled to the amount advanced in equal shares and a decree that one moiety thereof should be paid to Purushotamdas, and the other moiety treated as an item to the credit of Nagindas in the partnership accounts.

7. In Umrao Begam v. Irshad Hussain 21 I.A. 163 the Judicial Committee of the Privy Council allowed one of the defendants in the suit to be substituted in the place of the deceased plaintiff, that defendant being the person who would be entitled to inherit the taluks sought to be recovered by the plaintiff after the plaintiff's death. It does not appear whether the substituted plaintiff's name was struck out as a defendant, but this was probably done. Both these cases justify the petitioner's application in this case being granted. Where a contesting defendant becomes the plaintiff's representative, there would, no doubt, be much difficulty in dealing with the application by him to be substituted as the deceased plaintiff's representative: In English Law, there seems to be no status tory provision barring a fresh suit in such a case when the original suit is dismissed. But as the Indian Law bars a second suit, in this country, the Courts will have to find the means of doing justice between the parties so as to allow the representative to be substituted for the deceased plaintiff and at the same time not to contravene the rate that no person can try a question as against himself. The provision allowing a plaintiff to, withdraw a suit with leave to institute another suit with respect to the same subject-matter would probably enable the Court to do so. Where, however, (here is no contest between the deceased plaintiff and the defendant who seeks to b8 substituted in his place, there would generally be no serious difficulty in meeting the situation. In suits for the administration of the estate of an intestate, all the heirs would be parties, and on the death of one of them, another among the parties not ranged on the same side may be his heir, but such a suit is really one is which the Courts have to find out the rights of each of the parties to the intestate's property, and the position of any one party as plaintiff or defendant is often immaterial, and there is no reason why a defendant should not be substituted as plaintiff in the place of a deceased plaintiff. What course would have to be pursued in each case would have to be determined by the nature of the contest and by a consideration of the question what parties are hostilely ranged against each other. In Green v. Green Ir Rep. 5 Eq. 229 where the sole plaintiff died leaving a co-defendant as executor, the latter was allowed to be made plaintiff. In Foster v. Bonner 33 L.J. Ch. 384 and Battison v. Hobson 40 L.J. Ch. 378 where the interest of a deceased defendant devolved on one of the plaintiffs, the latter was substituted in the place of the former and the action was allowed to be continued against his co-plaintiffs. The Common Law rule that one partner cannot institute a suit against the firm of which he is a partner was based on the principle that no such suit is maintainable without taking a general account of the partnership. See Holmes v. Higgins 2 D. & R. 196; Bovill v. Hamond 9 D. & R. 186; Thompson v. Percival 3 N. & M. 167; Lucas v. Beach 1 M.& G. 417 : 1 Scott. 350 : 4 Jur. 631; Tarbuch v. Tarbusck 4 Bear. 149 and Teagus v. Hubbard 8 B. & C. 345. In other partnership cases, the reason is stated to be that the same parson cannot be both plaintiff and defendant. Mainwaring v. Newman 5 R.R. 554. But the rule that one partner cannot sue another, though somewhat strictly ob36rved in the Courts of Common Law, has been widely departed from at equity. The question is fully dealt with in Lindley on Partnership, see pages 539 and 592, et seq, where the learned author has classified the various cases in which a suit by a partner is maintainable against his foes and lies versa. In Robertson v. Southgate 6 Hare 536, A., B. and C. were partners. A. retired: B. filed a bill to set aside a fraudulent transaction, in which A. and C. had concurred. A. and B. became bankrupts. The action was not held to abate and in order to allow it to continue it was held that separate Receivers should be appointed for the estates of A. and B. Lindley says, as the result of the discussion, that there was no such general rule as that one partner could not sue another even at law in respect of a debt arising out of a partnership transaction, and that this circumstance alone afforded no reason why an action could not be brought by one partner against another. And in equity no such rule really prevailed, but each case had to be dealt with in a manner appropriate to the rights in controversy. See also Jagadisa Aiyar v. Kuppusamy 15 M.L.J. 142; Aas v. Benthem (1891) 2 Ch. 244 and Dean v. MacDowell 8 Ch. D. 345. The primary question in all such cases must be taken to be what are the substantive rights of the parties and whether the right of any one of them survives to the others. The law of procedure must be so adjusted as to give effect to the rights in controversy and substantive rights cannot be allowed to be affected by any universal rule to the effect that a defendant cannot be recognised as the representative of the plaintiff or vice versa, The provisions of our Procedure Code would probably be found to lie ample to enable the Court to meet any difficulty which might arise in particular cases.

8. We are of opinion, for the reasons mentioned above, that the order of Abdur Rahim, J,, and the orders of the Courts below must be set aside. The District Munsif will be directed to substitute the names of the petitioners in the place of the deceased Pattuma Bi and to strike their names out from the list of defendants. He will restore the suit to the tile and dispose of it according to law. In the circumstances of the case, all parties will bear their own costs up to date.


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