C.B. Capoor, J.C.
1. This application in revision and application in revision No. 4 of 1962 arise out of a common order made by the learned Senior Subordinate Judge Mahasu in civil suits Nos. 82/111/1 and 83/112/1 of 1959 and as a common question of law arises in both the applications I propose to dispose of them by this order.
2. The respondent Sita Ram had filed two suits; against Vidyadhar one of which No. 82/111/1 was for recovery of possession of a house and some land and the other was for recovery of damages. Vidyadhar died on 1-10-1960 drring the pendency of the aforesaid suits. An application was made by the respondent in both the cases to bring Smt. Kalawati, the widow of the deceased, on record as the legal representative of the deceased. On 14-11-1960 she made an application for getting the exparte order made against her set aside and therein contended that the suits had abated inasmuch as Smt. Durga Devi, the mother of the deceased Vidyadhar, was alive and under the Hindu law was also an heir to his estate. The respondent thereafter made an application on 15-2-1960 for impleading the aforesaid Smt. Durga Devi also and allegedthat the omission to bring her on record earlier was due to the fact that prior to the making of the application dated 15-2-1960 by Smt. Kalawati he was not aware that she wasalive. That application was opposed on behalf of Smt. Kalawati.
The learned Senior Subordinate Judge held that themistake on the part of the respondent to apply for impleading Smt. Durga Devi within the prescribed period of limitation was a bona fide one and ordered that she be alsobrought on record as the legal representative of the deceased Vidyadhar. In suit No. 83/112/1, referred to above,it was also contended on behalf of Smt. Kalawati that thecause of action did not survive on the death of Vidyadharand on that ground also the suit abated. The learned Senior Subordinate Judge, however, held that the cause of action did survive so far as the claim for recovery of asum of Rs. 3,010/8/- was concerned. It is against theaforesaid orders that the present revision petitions are directed.
3. Smt. Durga Devi died during the pendency of this petition and is now represented by her legal representatives.
4. According to the learned counsel for the petitioners the expression 'legal representative' as used in Rule 4 of Order 22, Civil P. C., means all the legal representativesof the deceased defendant and the contention is that if any one of the several legal representatives is not brought on record within the period of limitation prescribed by lawthe whole suit abates.
5. Before I proceed to discuss the aforesaid contention, reference may usefully be made to some of the rules of Order 22, Civil P. C., and other relevant provisions in order to have a clear conception as to what is abatement. Rule 1 provides that no suit shall abate as a result of death of a plaintiff or a defendant if the right to sue survives. According to Rule 2 where there are more plaintiffs or defendants than one and any one of them dies and the right to sue survives to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone the suit shall proceed at the instance of the survivingplaintiff or plaintiffs or against the surviving defendant ordefendants. Rule 3 prescribes the procedure in case of death of one of several plaintiffs or the sole plaintiff and it is laid down that where one of two or more plaintiffs diesand the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right tosue survives the Court on an application made in that behalf shall cause the legal representative of the deceased plaintiff to be made party and shall proceed with the suit.
Similarly Rule 4 prescribes the procedure in case of 'death of one of several defendants or of the sole defendant. It has been laid down that 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 Tight to sue survives the Court on an application made in that behalf shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the case. Sub-rule (2) of Rule 3 and Sub-rule (3) of Rule 4further lay down that where within the time limited by law no application is made under Sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned where the death occurs of a plaintiff and against the deceased defendant when death occurs of the defendant. Abatement is automatic and no order need be made abating the suit. An order of abatement may, however, be set aside on an application filed within 60 days of the abatement. The provisions of Section 5 of the Limitation Act apply to applications for the setting aside of abatement.
6. it has already been seen that Rule 2 of Order 22, Civil P. C., provides that where there are more plaintiffs or defendants than one and any one of them dies and the right to sue survives to the surviving plaintiff or plaintifts alone or against the surviving defendant or defendants alone the suit shall proceed at the instance of the surviving plaintiff or plaintiffs or against the surviving defendant or defendants and on first principles there does not seem to be any reason as to why a suit should not proceed against some only of the legal representatives of a deceased defendant if the right to sue survives against them. To my mind, the acid test for determining as to whether on the bringing on record of some only of the legal representatives of a deceased defendant the suit abates or not is as to whether a separate suit would have lain against them or not. If the persons brought on record as the legal representatives do represent a part of the estate of the deceased a separate suit would lie against them.
The question as to whether a decree passed in such a suit would bind the remaining legal representatives or not is different and as it does not arise in the instant case I do not propose to express any opinion thereon. In accordance with Order 1, Rule 9, Civil Procedure Code, the defect of nonjoinder or misjoinder of a party is not fatal to a suit and the Court can always adjudicate upon questions at controversy between the parties actually before it. Cases in which an effective decree cannot be passed against the parties actually before the Court, however, stand on a different footing. In such cases a decree is not passed as the passing of it will not be effective and not because the suit has abated.
7. The expression 'legal representative' according to Section 2(11), Civil P. C., means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued and unless the context otherwise indicates the same meaning should be assigned to the expression 'legal representative' as used in Rule 4, referred to above.
8. The definition of the expression legal representative' came up for consideration before the Supreme Court In the case of Andhra Bank Ltd. v. R. Srinivasan, AIR 1962 SC 232. The facts of that case were these :- A suit was filed by the Andhra Bank Ltd. against 12 respondents on th3 basis of two foreign judgments obtained by it against them. Respondent No, 1 was indebted to the aforesaid Bank. His father Raja Bahadur Krishnamachari guaranteed the repayment of monies borrowed by him. As the amounts due from him remained unpaid the Bank filed two suits to recover its dues in the Hyderabad High Court which were transferred to the City Civil Court. During the pendency of the suits the Raja Bahadur died and the Bank impleaded respondents. Nos. 2 to 12 as the legal representatives of the said Raja Bahadur on the ground that they were in possession of different pieces of his properties under a settlement deed of 1940 and a registered will executed by him in 1942.
Both the suits were decreed inter alia against respondents Nos. 2 to 12 for recovery of a sum of Rs. 20,000/-which was the limit of guarantee executed by the Raja Bahadur. The suit was also decreed against respondent No. 1 for the amount claimed. Against the decree two appeals were filed in the High Court at Madras one by respondents Nos. 3 to 5 and the other by respondent No. 2 and his sons respondents Nos. 6 to 3. These appeals were accepted on the ground that the decrees were invalid and had been passed by the Hyderabad Court without jurisdiction. The matter was taken up in appeal to the Supreme Court. One of the questions that arose for decision in that case was as to whether a legatee who obtained only a part of the estate of the deceased under a will could be said to be the legal representative of the deceased. The expression 'legal representative' had not been defined in the Code of 1882 and that led to a difference of judicial opinion on the question as to whether the expression as used in Section 234 of the Code could not include any body except the heir, executor or the administrator of the deceased.
The expression 'legal representative' was defined in Section 2(11) of the Code of 1908 and it was held that the said definition was wider and included persons other than heir, executor or administrator of the deceased. In the course of the judgment which was delivered by Hon'ble Gajendragadkar J. the following observations were made :
'Mr. Sastri concedes that a Universal legatee would be a legal representative and he does not challenge that the person who intermeddles even with a part of the estate of the deceased is also a legal representative; but his argument is that a legatee who obtains only a part of the estate of the deceased under a will cannot be said to represent his estate and is therefore not a legal representative under Section 2(11). We are not impressed by this argument. The whole object of widening the scope of the expression 'legal representative' which the present definition is intended to achieve would be frustrated if it is held that legatees of different portions of the estate of a deceased do not fall within its purview. Logically it is difficult to understand how such a contention is consistent with the admitted position that persons who intermeddle with a part of the estate are legal representatives. Besides, if such a construction is accepted it would be so easy for the estate of a deceased to escape its legitimate liability to pay the debts of a deceased debtor only if the debtor takes the precaution of making several legacies to different persons by his will, Besides, as a matter of construction, if different intermeddlers can represent the estate different legatees can likewise represent it. In regard to the intermeddlers they are said to represent the estate even though they are in possession of parcels of the estate of the deceased and so there should be no difficulty in holding that the clause 'a person who in law represents the estate of a deceased person' must include different legatees under the will. There is no justification for holding that the 'estate' in the context must mean the whole of the estate. Therefore, we are satisfied that the plain construction of Section 2(11) is against Mr. Sastri's argument, apart from the fact that considerations of logic and common-sense are equally against it.'
9. On behalf of the petitioners the aforesaid decision was sought to be distinguished on the ground that it did not purport to be under Rule 4 or for the matter of that under any other rule of Order 22, Civil P. C. While it is true that the provisions of Order 22 were not discussed by their Lordships the solution of the problem before their Lordships depended on the question as to whether the word 'estate' as used in the aforesaid definition meant the whole of the estate or even a part of it. The decision of the question arising in the present case namely as to whether a suit abates if some one of the legal representatives of a deceased defendant are brought on record also hinges on the interpretation of the expression 'the estate of the deceased' and in view of the interpretation placed by the Supreme Court on the meaning of the expression 'legal representative' it may well be held that if only some of the legal representatives of a deceased defendant are brought on record the suit does not abate. There is nothing in the text of Rule 4 to indicate that the definition of the expression 'legal representative' as given in Section 2(11), Civil P. C., would not be applicable in interpreting Rule 4.
10. The Allahabad, Bombay, Madras, Nagpur, Oudh, Patna, Lahore, Peshawar and Rajasthan Courts have held that even if one of the several legal representatives of a deceased defendant or respondent is alone impleaded he sufficiently represents the estate and the suit does not abate; vide Mahomed Hammad v. Tej Narain Lal, AIR 1942 All 324; Jehrabi Sadullakhan v. Bismillabi Sadruddin, AIR 1924 Bom 420; Mulchand Hemraj v. Jairamdas Chaturbhuj, AIR 1935 Bom 287; Kadir Mohideen v. Muthukrishna, 1LR 26 Mad 230; Abdulla Sahib v. Beevi Animal, AIR 1928 Mad 1199; Abdul Baki v. Bansilal Abirchand Firm, Nagpur, AIR 1945 Nag 53; Radha Raman v. Anant Singh, AIR 1945 Oudh 196; Madhusudan Lal v. Sailendra, AIR 1950 Pat 359; Khuda Bakhsh v. Narain Das, 18 Ind Cas 44 (Punj); Bahadur Khan v. Majid AIR 1938 Pesh 4; add Poonam Chand v. Motilal, AIR 1954 Raj 287.
11. I am, therefore, of the opinion that if on the death of a sole defendant or a sole surviving defendant to a suit the right to sue survives and some only of the legal representatives of the deceased defendant are brought on record the suit does not abate and if an effective decree can be passed against such legal representatives it must be passed.
12. In the instant case Smt. Kalawati who was admittedly one of the legal representatives of the deceased defendant Vidyadhar was brought on record within the prescribed period of limitation and the suit could not be said to have abated.
13. It has already been noticed that an application was made at the instance of the plaintiff to bring on record Smt. Durga Devi also. That application was made beyond 90 days of the death of Vidyadhar but the allegation made on behalf of the plaintiff-respondent was that he in good faith laboured under the impression that Smt. Durga Devi had already died. On behalf of the petitioners it has been alleged that the respondent knew that Smt. Durga Devi was alive and evidence was led in order to show that he had come across her when he had gone for condolence on the occasion of the death of Vidyadhar and on other occasions also. The learned Senior Subordinate Judge was not impressed well with the aforesaid evidence and in my opinion rightly. The relations between the respondent and Vidya--dhar had been strained at least since 1949 and it did not stand to reason that the respondent would go to offer his condolence on the occasion of the death of Vidyadhar. The evidence led on behalf of the petitioners in proof of the allegation that the respondent came across Smt. Durga Devi on other occasions was of a partisan nature and not convincing.
14. It has been held in Begam Jan v. Jannat Bibi, AIR 1927 Lah 6 and Abdul Ghaffar v. Mohammad Haroon, AIR 1935 Lah 712 that if some only of the legal representatives of a deceased defendant are brought on record within the prescribed period of limitation and another application is made in good faith to bring on record the other legal representatives after the prescribed period of limitation the suit does not abate.
15. In agreement with the learned Senior Subordinate Judge I hold that the suits did not abate on account of the omission to bring on record Smt. Durga Devi as a legal representative of the deceased within the prescribed period of 'limitation.
16. It only remains to consider if the claim for Rs. 3,010/8/- was a personal one and died with the deathof Vidyadhar. A well-known exception to the maxim action personalis moritur cum persona is that where the estate of the deceased has been enriched as a result of his wrongful action the claim for damages arising out of such enrichment does not die with the death of the wrongdoer, vide Ghulam Rashid v. Muhammad Abdul Rab, AIR 1941 All 137 and Krishna Behari v. Raj Mangal Persad, AIR 1954 All 182. A perusal of the plaint in the suit for damages indicates that the sum of Rs. 3,010/8/- was claimed as damages on account of the misappropriation by the deceased defendant Vidyadhar of the debris of the house belonging to the respondent. The estate of the deceased had thus benefited and the aforesaid claim, therefore, could be enforced against his estate.
17. The findings recorded by the learned Senior Subordinate Judge, therefore, do not warrant interference. The petitions in revisions are devoid of merits and are dismissed with costs. The stay order is vacated.
18. Let a copy of this order be placed on the recordof Civil Revision No. 4 of 1962.