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1993 DIGILAW 211 (MP)

Gema Coutinho Rodrigues v. Bricio Francisco Pereira

1993-04-02

KULDIP SINGH, YOGESHWAR DAYAL

body1993
JUDGMENT Leave granted. Appeal heard. This appeal by special leave is against the judgment of the Panaji Bench, Goa of the Bombay High Court dated January 11, 1983 whereby the learned Single Judge of the High Court upheld the order dated March 19, 1979 passed by the trial Court. The order of the trial Court dated March 19, 1979 came to be passed in the following circumstances: On February 8, 1974 the appellant herein was appointed as next friend of her parents under Order 32 Rule 15 of the Code of Civil Procedure and in April 1974, the appellant, who is the daughter, filed a suit on behalf of her father and mother as their next friend, inter alia praying that power of attorney dated September 6, 1972 purporting to have been executed by her father be declared null and void. The power of attorney purports to have been executed in favour of one son Mr Basilio Cancio Countinho and in favour of Mr Bricio Francisco Periera, brother-in-law of cancio Countinho. The plaintiffs also challenged in the said suit one sale deed dated September 20, 1972 and two gift deeds dated October 18, 1972 and November 2, 1972 purporting to have been executed in pursuance of the aforesaid power of attorney. It appears that the son namely Mr Cancio Countinho who is stated to be the brother of the appellant died before .the filing of the suit on October 19, 1972. After the filing of the suit the appellant's father on whose behalf a suit had been filed died on July 14, 1974 but no application was filed for bringing on record the legal heirs of the father since the mother (wife of the deceases father) was also the legal heir, already on the record. It appears that the mother on whose behalf the suit had also been filed and continued died on January 18, 1974 and the appellant who is the daughter filed an application on April 11, 1978 under Order 1, Rule 10 (1) read with Order 22 of Code of Civil Procedure for bringing on record the appellant her self as legal heir of the mother. This application was filed on April 11, 1978 but the trial Court by its order dated March 19, 1979 dismissed the application in the view that once one of the plaintiffs died all his successors ought to be made parties to proceed with the suit and the applicant is not entitled to proceed with the suit alone in her own name. The High Court agreed with the trial Court and dismissed the revision petition filed by the appellant by the impugned order dated January 11, 1983. It appears that the gift deeds were made by deceased brother's brother-in-law in pursuance of power of attorney in his favour. So long as one of the heirs has been brought on record who substantially represented estate of deceased plaintiff, the application could not be dismissed on the ground that the suit has abated or it could not proceed. Trial Court should have directed the appellant to implead other heirs if any, of the deceased mother who also a party to the suit by way of defendants. But the application for being brought on record by the appellant could not have been rejected. We, accordingly, set aside the order of the trial Court dated March 19, 1979 as well as the order of the High Court dated January 11, 1983 and direct the trial Court to bring the appellant on record, as legal heir of the deceased plaintiffs and permit the appellant to implead any other heirs as co-defendants. We place on record our appreciation for the services rendered to this Court by Mr H.S. Munjral, Advocate who was appointed as amicus curiae, since the legal heirs and respondents, in spite of substituted service, were unrepresented and he very fairly represented them before this Court on behalf of the respondents. The appeal is allowed with the above directions. No costs.