M. S. Arputhaswamy v. M. Savarimuthu Udayar — 1996 DIGILAW 562 (MAD)

Judgment :- 1. Second respondent in Second Appeal who is the first respondent in the connected C.R.P. filed O.S. No. 179 of 1981, on the file of the District Munsifs Court, Uthamapalayam, for declaration and permanent injunction. The suit filed was in respect of the management of a School. First defendant is the father of the plaintiff, and the first appellant in the Second Appeal is the elder son of the first defendant. It is seen that in respect of the management of the School, there was some dispute, and the plaintiff wanted certain resolution alleged to have been passed by the first defendant to be declared as invalid, and he also wanted a declaration that himself and defendants 1 to 5 in the suit are entitled to continue and act as members in the Executive Committee. Pending suit, defendants 2 and 3 died. 2. The trial court, as per judgement dated 7-2-1986, passed a decree in terms of the plaint. Pending suit, defendants 2 and 3 died and, therefore, the declaration granted was that the plaintiff, defendants 1, 4 and 5, and one of the heirs of the second defendant and one of the heirs of the third defendant are entitled to act as members of the Executive Committee. A permanent injunction was also granted. 3. First appellant is the 6th defendant in the suit and his wife is the 7th defendant. 4. In the suit first defendant disputed the claim of the plaintiff and put forward a contention that the school belongs to him exclusively and it is a minority institution. According to the first defendant, being a minority institution, there need not be any Council in the management, and therefore he is entitled to administer the same as his own. It is seen that the first defendant has also passed certain resolutions or taken some decisions by which defendants 6 and 7 were also brought into the Management. 5. The contention of the first defendant was fully supported by the appellants in the Second Appeal. 6. Against the judgment and decree, first defendant preferred A.S. 33 of 1986, on the file of Subordinate Judges Court, Periakulam. Pending appeal, first defendant died. In the appeal preferred by the first defendant, appellants herein were impleaded as respondents. 5. The contention of the first defendant was fully supported by the appellants in the Second Appeal. 6. Against the judgment and decree, first defendant preferred A.S. 33 of 1986, on the file of Subordinate Judges Court, Periakulam. Pending appeal, first defendant died. In the appeal preferred by the first defendant, appellants herein were impleaded as respondents. On the death of the first defendant on 27-10-1988, the first appellant filed I.A. No. 9 of 1989 under Order 22 Rule 3, C.P.C read with Rules 146 and 151, C.P.C. for recognising him as the sole representative, and I.A. No. 10 of 1989 to transpose him as second appellant. In those applications, first appellant put forward a contention that the deceased has executed a Will and, therefore, he alone need be impleaded as a party to the appeal. While those applications were pending, he, along with second appellant, filed I.A. 43 of 1991 to transpose them as additional appellants. The same was without prejudice to the contentions already raised in I.A. Nos. 9 and 10 of 1989, where the claim was on the basis of the Will. In the affidavit filed in support of I.A. 43 of 1991, first appellant contended that since a joint decree has been passed against the first defendant and themselves, and since they are having common interest with the deceased appellants, ends of justice require that they should be transposed as appellants 2 and 3 and they should be allowed to prosecute the appeal. 7. For the same application, counter-statement was filed by the respondents therein, wherein they disputed the claim and they opposed the transposition of the appellants in the Appeal. They also took a contention that since I.A. Nos. 9 and 10 of 1989 are pending for the very same purpose, another application should not be filed. Additional statement was also filed wherein they said that I.A. Nos. 9 and 10 of 1989 were dismissed as not pressed, and the present application being barred by time, the application cannot be sustained. 8. By the impugned order, lower appellate court dismissed I.A. No. 43 of 1991. It is against the said order, the Revision is filed. 9. Consequent to the dismissal of I.A. 43 of 1991 lower appellate court held that the appeal itself is abated. A judgment was pronounced accordingly. It is against that judgment, the Second Appeal is filed. 10. 8. By the impugned order, lower appellate court dismissed I.A. No. 43 of 1991. It is against the said order, the Revision is filed. 9. Consequent to the dismissal of I.A. 43 of 1991 lower appellate court held that the appeal itself is abated. A judgment was pronounced accordingly. It is against that judgment, the Second Appeal is filed. 10. At the time of admission of the Second Appeal, the following substantial questions of law were raised:— ”1) Having regard to the right to sue and prosecute the appeal survived on the appellants on the death of the 1st defendant/original appellant, whether the dismissal of the appeal by the appellate court is sustainable in law? 2) Whether the dismissal of the appeal based on the dismissal of the application in I.A. 43/91 is sustainable in law in the light of the fact that the order passed in I.A. 43/91 is liable to be set aside in the CRP filed against the said order? and 3) Having regard to the judgment of this Court rendered in AIR 1988 Madras 1, is the judgment of the trial Court sustainable in law and ought not to have been set aside in appeal?” 11. A decision in the Civil Revision Petition will be sufficient for proper disposal of the Second Appeal. 12. Even the questions of law raised (extracted above) are on the basis of the pendency of the Revision. Therefore, the only question that has to be considered is, whether the order in I.A. No. 43 of 1991 is proper and legal, and whether the petitioners in the Revision are entitled to get themselves transposed as additional appellants before the lower appellate court. 13. Admittedly, first appellant is the son of the deceased appellant. He is the 4th respondent in the appeal. It is not disputed that during trial, deceased first appellant was contesting the suit and the defence of the deceased appellant was accepted by the first petitioner in this case. 14. Since the petitioner is already a party to the appeal, even though he is a respondent, there cannot be any abatement. In whatever capacity he is a party to the suit or appeal, there cannot be any question of abatement of appeal. The decision reported in 1990-1-LW-623 (Mani, P. v. P. Viswanathan) supports this view. 14. Since the petitioner is already a party to the appeal, even though he is a respondent, there cannot be any abatement. In whatever capacity he is a party to the suit or appeal, there cannot be any question of abatement of appeal. The decision reported in 1990-1-LW-623 (Mani, P. v. P. Viswanathan) supports this view. In the said decision, it is held thus:— “In this case, some of the legal representatives of the deceased plaintiff were already parties to the suit, though in the capacity of defendants. In the event of death of a party in a proceeding in which one or more of the legal representatives are already on record in another capacity, all that would be necessary is that by an application made, the person already on record in a different capacity should also be recorded as heir and legal representative of the deceased person. This would be so even if there are other legal representatives and an application for impleading them is not taken out within the period of limitation and the proceedings will not abate. All that the appellant prayed was that he should be transposed as a plaintiff in order to enable him to continue the suit, as he had succeeded to the entire interest of his deceased mother, which she had agitated in the suit, under her Will. There was no need for the appellant to have prayed for the condonation of the delay in setting aside the abetment or even to set aside the abatement and the appellant was entitled to be transposed as a plaintiff in the place of his deceased mother. The same conclusion would also follow viewing the position of the appellant as a party to a suit for partition herein every defendant will also occupy the position of a plaintiff in relation to the relief of partition. It would all the more be so in this case where the appellant claims to have secured under the Will of his mother her entire interest, the right to partition which she had agitated in the suit and under these circumstances, the refusal to transpose the appellant as the plaintiff in the suit cannot be sustained.” 15. It would all the more be so in this case where the appellant claims to have secured under the Will of his mother her entire interest, the right to partition which she had agitated in the suit and under these circumstances, the refusal to transpose the appellant as the plaintiff in the suit cannot be sustained.” 15. Under Order 22, C.P.C., we have to consider whether the right of action continues or not, and, for the said purpose, the real question to be determined is, whether the legal representative can enjoy the relief sought on the cause of action as claimed by the deceased appellant and not whether the legal representative would be able to prove the grounds on the basis of which the relief is sought. If the first petitioner or the first appellant can enjoy the relief on the basis of which the deceased appellant filed the appeal, then it can be said that the right to sue continues. It is for this reason, law says that the legal representative is not entitled to put forward a different contention from the one that was raised by the deceased. I have already said that the first appellant or the first petitioner filed only a memo accepting the contentions of the deceased appellant before the trial court and the common cause was being agitated by the deceased. Being a legal heir, who is already on the party array, there cannot be any doubt that the cause of action survives. 16. If there cannot be any question of abatement, the question of setting aside the abatement or condonation of delay in setting aside the abatement, will not arise. The only question is, whether they can be transposed as additional appellants. 17. In this connection, we may note that even within the period of three months, revision petitioners filed I.A. Nos. 9 and 10 of 1988 for getting themselves impleaded. Of course, that is on the basis of the Will alleged to have been executed by the deceased. At the time when I.A. 43 of 1991 was filed, those applications were pending. When a contention was taken that for the similar relief, applications were filed earlier and they are pending, a second application for the same purpose cannot be entertained. On the basis of the said representation, those applications, namely, I.A. Nos. At the time when I.A. 43 of 1991 was filed, those applications were pending. When a contention was taken that for the similar relief, applications were filed earlier and they are pending, a second application for the same purpose cannot be entertained. On the basis of the said representation, those applications, namely, I.A. Nos. 9 and 10 of 1988 were dismissed as withdrawn or not pressed. From the narration of facts, it is clear that the petitioners were acting bona fide. It is only because the Will was not probated, they could not prove the claim as legal representatives. 18. In 1995 Suppl (1) S.C.C. 321 ( Naraindas Lilaram Adnani v. Naraindas Adnani and others, their Lordships held that where an application is filed on the basis of a Will, which is not probated, they cannot be impleaded in thier capacity as executors of the Will. But at the same time, if the person claiming himself as executor is already on record, he can be transposed as appellant. In paragraph 2 of the judgment, their Lordship said thus:— “After filing of the Special Leave Petition the appellant died on 15-4-1988. The 9th respondent has filed I.A. No. 1 of 1989 for being substituted as the appellant in place of the original appellant. In the said application which is under Order 22, Rule 3 of the Code of Civil Procedure read with relevant Rules of this Court, the 9th respondent has stated that the deceased appellant has left a Will under which Respondent 9 is the sole executor of the Will. Under the said Will the appellant has left his entire estate to Respondent 6 i.e., his second wife. Respondent 9 has, therefore, prayed that he should be impleaded in his capacity as the executor of the Will of the deceased-appellant as his legal representative. The Will, however has not been probated so far. In view of Section 213 of the Indian Succession Act, Respondent 9, cannot, therefore be impleaded in his capacity as the executor of the Will of the deceased-appellant. It is, however, an accepted position that the legal representatives of the original appellant are already on record. We, therefore, do not see any difficulty in transposing Respondent 9, one of the legal representatives of the deceased -appellant, as the appellant. (Emphasis supplied). 19. It is, however, an accepted position that the legal representatives of the original appellant are already on record. We, therefore, do not see any difficulty in transposing Respondent 9, one of the legal representatives of the deceased -appellant, as the appellant. (Emphasis supplied). 19. In 1990-2-L.W. page 60 (Narayanaswami, R. v. Sri Siddha Raja Manicka Prabhu Temple), a Division Bench of this Court transposed one of the respondents, in the interest of justice. The Bench observed that for the proper and final adjudication of the dispute and also to avoid multiplicity of proceedings, when transposition is required, the same can be done by the Court. In that case, defendants 5 to 7 filed an appeal challenging the decree of the trial court. They were trustees of a Temple. In the Appeal, the Commissioner, Hindu Religious and Charitable Endowments Board was also implead ed as second respondent. The Bench transposed the Commissioner, H.R. & C.E. (2nd respondent) as one of the appellants since the contentions of the appellants as well as the second respondent were the same. While considering the said case, the Bench held thus:— “The petition for transposition C.M.P. No. 15689 of 1989 filed by the second respondent herein who is the fourth defendant in the suit (Commissioner, Hindu Religious and Charitable Endowments Madras) and who filed the appeal A.S. No. 730 of 1977 has to be ordered. It must be noted that the present appellants are respondents 5 to 7 in A.S. No. 730 of 1977 and they are the trustees appointed by the Commissioner, H.R. & C.E. Department for the suit temple. They filed the appeal A.S. No. 730 of 1977 challenging the judgment and decree of the trial court in O.S. No. 547 of 1965 and their appeal was dismissed for default for not complying with the pleading set However, they were permitted to argue the appeal. The interest of the second respondent, Commissioner, H.R. & C.E. Board and that of the appointed trustees, namely the appellants herein, is one and the same, and the second respondent is also concerned in fighting for the same cause, viz. , it is a public temple and not a private temple and the plaintiff has no title to it whatsoever. The power of transposition cannot be challenged. , it is a public temple and not a private temple and the plaintiff has no title to it whatsoever. The power of transposition cannot be challenged. In view of the circumstances of the case and since the appellants in the case are the trustees appointed by the second respondent and both of them represent the temple and put forth the same contentions and in view of the fact that the second respondent herein is also a party to the appeal in A.S. No. 730 of 1977, certainly he can prefer an appeal irrespective e of the fact that the appeal filed by the present appellants, separately, was dismissed for default and it cannot be said that the appeal filed by them is itself incompetent and is liable to be dismissed. We are of the view that the transposition is absolutely necessary for proper and final adjudication of the dispute and to avoid multiplicity of proceedings.” 20. In A.I.R. 1958 S.C. 394 (Saila Bala v. Nirmala Sundari) their Lordships held thus (at paragraph 10):— “In any event, the Court can, if necessary, take action suo motu either under O. 1, R. 10 or in its inherent jurisdiction and transpose Sudhir Kumar Mitter as second respondent in the appeal as was done in re Mathews: Oates v. Mooney, 1995-2-Ch-460 and Vanjiappa Goudan v. Annamlai Chettiar , 1989-2-M-L.J. 551: ( AIR 1940 Mad 69 )” 21. In so far as the second appellant or second petitioner is concerned, since she is also a person having common cause with the deceased appellant, if the relief sought for by the deceased-appellant and was granted, she also will be benefited, and being a Member of the Committee, which is found to be invalid by the trial court, she can also be treated as a person interested in the result of the same cause of action, and I feel that ends of justice would be met if she is transposed as additional appellant. 22. The order in I.A. No. 42 1991 in A.S. No. 33 of 1986, on the file of the Subordinate Judges Court, Periakulam is, therefore, set aside, and the petitioners in I.A. No. 43 of 1991 will be impleaded as additional appellants 2 and 3 in A.S. No. 33 of 1986. 22. The order in I.A. No. 42 1991 in A.S. No. 33 of 1986, on the file of the Subordinate Judges Court, Periakulam is, therefore, set aside, and the petitioners in I.A. No. 43 of 1991 will be impleaded as additional appellants 2 and 3 in A.S. No. 33 of 1986. Consequently, the judgment in A.S. No. 33 of 1986 declaring the appeal as abated is also to be set aside, and Second Appeal No. 707 of 1992 is to be allowed. 23. Since I have set aside the judgment and decree of the lower appellate court and allowed the petitioners in I.A. No. 43 of 1991 to be impleaded as additional appellants, the appeal, namely, A.S. No. 33 of 1986 will be restored to file. The lower appellate court is directed to dispose of the appeal in accordance with law. The parties are directed to appear before the lower appellate court on 28-6-1996. The Civil Revision Petition and the appeal are allowed, as indicated above, but, however, without any order as to costs.