Bireswar Ghose v. Srish Chunder Ghose — 1945 DIGILAW 164 (CAL)

JUDGMENT Khundkar, J. - This is an application by the heirs of a deceased plaintiff to be substituted in his place as plaintiffs in the suit. The circumstances which have given rise to this application are as follows: One Bireswar Ghose instituted a suit against his youngest son, Srish Ghose, who is the respondent opposite party in the present application, for a declaration that certain conveyances which he had executed in Srish's favour were inoperative and void, and for recovery of possession of property which was the subject-matter of those conveyances. In the same suit, the plaintiff sought to have set aside a money decree which the defendant had obtained against him. The plaintiff died intestate, and the applicants seek to continue the suit, hence the present application. The applicants for substitution are all the heirs of Bireswar other than Srish. The application is opposed, and it is urged that as Bireswar died intestate, and no letters of administration have been granted, S. 306, Succession Act, is a bar to the application which can be maintained only by an executor or administrator. Section 306 is in these terms: All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code; or for personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory. 2. On behalf of the applicants it is contended that as the deceased was a Hindu, S. 212 (2), Succession Act, renders it unnecessary for letters of administration to his estate to be taken out. It is further contended that under O. 22, R. 3, Civil P. C., the Court "shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit." "Legal representative" is defined in the Code itself, S. 2 (11) of which says that it "means a person who in law represents the estate of a deceased person....." It is urged that Bireswar's heirs represent his estate. There is on the face of these contentions, the appearance of a conflict between different provisions of the law, and the matter calls for examination. 3. On behalf of the respondent, reliance has been placed on three cases : 13 Rang. 385 D. K. Cassim & Sons v. Sara Bibi ('36) 23 A. I. R. 1936 Rang. 17 : 13 Rang. 385: 160 I. C. 715 at p. 409; 31 Cal. 993 Krishna Behari v. Corporation of Calcutta ('04) 31 Cal. 993 and I. L. R. (1939) ALL. 6 Official Liquidators Mofassil Bank v. Jugal Kishore ('39) 26 A. I. R. 1939 All. 1 : I. L. R. (1939) All. 6 : 180 I. C. 439. The last-mentioned two cases may be dismissed at once. In I. L. R. (1939) ALL. 6 Official Liquidators Mofassil Bank v. Jugal Kishore ('39) 26 A. I. R. 1939 All. 1 : I. L. R. (1939) All. 6 : 180 I. C. 439 the observations in the judgment which were relied upon in support of the present argument for the respondent are pure obiter, the case being disposed of on an entirely different ground, which was that the right to bring certain proceedings under the Companies Act against a director would not continue after his death. In 31 Cal. 993 Krishna Behari v. Corporation of Calcutta ('04) 31 Cal. 993 the heirs, already substituted in the place of a deceased plaintiff, were willing to take out letters of administration, and the point that they were under no obligation to do so, was not raised or considered. There remains the case in 13 Rang. 385 D. K. Cassim & Sons v. Sara Bibi ('36) 23 A. I. R. 1936 Rang. 17 : 13 Rang. 385: 160 I. C. 715 in which the plaintiff sued for damages for loss of credit and reputation caused by certain unlawful acts of the defendant. The defendant died, and it was held that, under S. 306, Succession Act, there was a right to continue the action against the executors or administrators of the deceased, and not against his heirs as such. The argument in this case centred round the construction of S. 306, Succession Act, and no reference was made to the provisions of the CPC in the judgment. 4. The argument in this case centred round the construction of S. 306, Succession Act, and no reference was made to the provisions of the CPC in the judgment. 4. Now, it cannot but be observed that S. 306 occurs in a chapter of the Succession Act which deals with, and is indeed confined to, the powers of executors and administrators. Section 305, which is the first section of that chapter, declares that, in respect of causes of action which survive the deceased, the executor or administrator has the same power to sue. The section does not say that other persons would not have an equal power. Section 306 then goes on to indicate what are the causes of action "existing in favour of or against a person at the time of his decease" which do in fact survive to an executor or administrator. Nowhere is it indicated in the statute that, when a cause of action survives, it survives only to the executor or administrator of a deceased plaintiff or defendant and never to the heirs. The real effect of these sections is that, whereas S. 305 puts the executor or administrator in the same position as the deceased would have been in with regard to any causes of action which survive the deceased, S. 306 makes clear what those causes of action are. There can be little doubt that, read together, the two sections leave room for the survival to persons other than the executor or administrator of actions affecting property. Lord Esher M. R., in applying the general rule which is expressed in the maxim actio personalis moritur cum persona, laid down the test of what is actio personalis in (1888) 20 Q. B. D. 494 Finlay v. Chirney (1888) 20 Q. B. D. 494 : 57 L. J. Q. B. 247 : 58 L. T. 664 : 36 W. R. 534. That was an action for damages for breach of promise of marriage, brought against the executors of a deceased, in which the plaintiff was non-suited. Lord Esher said (pages 498/499): Of course it is said, and said justly, that the damages recovered in the action affect the property of the respective parties; but that is not the proper test to apply; the true test is whether the cause of action itself is one which affects property. Lord Esher said (pages 498/499): Of course it is said, and said justly, that the damages recovered in the action affect the property of the respective parties; but that is not the proper test to apply; the true test is whether the cause of action itself is one which affects property. Section 306, Succession Act, expresses a qualification of the rule actio personalis moritur cum persona to the extent that it indicates that, amongst causes of action which survive, are included some actions of a personal nature, that is to say, personal actions other than those expressly excluded by the section itself. Page C. J. made it clear that the case in 13 Rang. 385 D. K. Cassim & Sons v. Sara Bibi ('36) 23 A. I. R. 1936 Rang. 17 : 13 Rang. 385: 160 I. C. 715 was a personal action (p. 392): It is sufficient to point out that on 10th June 1925 a firm of D. K. Cassim & Sons, the present appellants, filed a suit against V.M. Abdul Rahman and S. P. Mani Iyer to recover damages for loss or credit and reputation caused by certain wrongful acts of the defendants. This case is, therefore, not an authority for the proposition that a cause of action which, in the words of Lord Esher, itself affects the property, survives only to an executor or administrator and never to the heirs of a deceased plaintiff or defendant. There is a fallacy in the argument advanced on behalf of the respondent in the present case, and it lies in assuming that causes of action do not survive a deceased plaintiff or defendant under general principles, but only by reason of S. 306, Succession Act, and that therefore the conditions of survival must be in every case as laid down in this section and nowhere else. As indicated before, S. 306 is part of a fasciculus of sections dealing with the powers of executors and administrators, and it is to be construed within the limits of that context. A rule which formulates certain powers of executors and administrators does not occupy the entire field of legal representation in matters of litigation. 5. As indicated before, S. 306 is part of a fasciculus of sections dealing with the powers of executors and administrators, and it is to be construed within the limits of that context. A rule which formulates certain powers of executors and administrators does not occupy the entire field of legal representation in matters of litigation. 5. It is plain that to extend S. 306, Succession Act, to all causes of action, including those which themselves affect property would be to stultify in large measure the provisions of S. 212 (2), which exempt a Hindu, Muhammadan, Buddhist, Sikh, Jaina or an Indian Christian from applying for letters of administration in cases of intestacy. Moreover, such a construction of S. 306 would raise a direct conflict with procedural provisions. These are contained in O. 23, R. 3 (1), which is in the following terms: Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiffs alone, or a sole plaintiff or sole surviving plaintiff 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. The term "legal representative" is defined in the Code itself, and is wider than the term "executor" or "administrator," for S. 2 (11) states it to denote a person who in law represents the estate of a deceased person. This definition is wide enough to include the heirs of a deceased plaintiff or defendant. Indeed, even before the definition was incorporated in the Code, it was held that the term "legal representative" included heirs: see 8 C. W. N. 843 Dinamoni Chaudharani v. Elahadut Khan ('04) 8 C. W. N. 843 at p. 856. 6. The causes of action in the present case themselves directly affect property, for, it is the right to certain property that is disputed in the suit, and declarations are asked for which will deny to the defendant his rights to it. In such cases, provided the parties concerned are exempt under S. 212 (2), Succession Act, from applying for letters of administration, not only are the heirs of a deceased plaintiff or defendant who died intestate the proper persons to be substituted in the deceased's place, but the law requires that all ascertainable heirs should be so substituted. In such cases, provided the parties concerned are exempt under S. 212 (2), Succession Act, from applying for letters of administration, not only are the heirs of a deceased plaintiff or defendant who died intestate the proper persons to be substituted in the deceased's place, but the law requires that all ascertainable heirs should be so substituted. In this connection the following cases may be seen: 32 C.W.N. 1020 Fajar Banu v. Rahim Bux Bhuiya ('29) 16 A. I. R. 1929 Cal. 26 : 115 I. C. 184 : 32 C. W. N. 1020; 37 C.W.N. 138 Miyarjan Bibi v. Abdul Shek ('33) 20 Maiyarjan Bibi and Another Vs. Abdul Shek, AIR 1933 Cal 498 and 43 C.W.N. 1088 Hafijul Hoque v. Altap Hossain Molla ('39) 43 C. W. N. 1088. In the present case, it has been also contended that the special facts make it desirable that one or more of the heirs of Bireswar who seek to prosecute the suit should take out letters of administration, because one of the reliefs claimed is recovery of the possession of property by some heirs against a co-heir, the claim being based on the allegation that all the heirs have inherited a share in it. It is contended that, in these circumstances, the proper party to ask for possession would be an administrator and not some of the heirs. The argument has an appearance of plausibility but is, in my judgment, without substance. This particular objection could be met by amending the plaint so as to make the prayer for recovery of possession a prayer for joint possession along with the defendant. In my opinion, in the circumstances of this case and, in view of the well-settled practice of this Court, the prayer for substitution ought not to have been opposed. The application is accordingly allowed, with costs.