Bhrigu Nandan Deb Goswami v. Gobinda Jew Thakur — 1997 DIGILAW 386 (CAL)

JUDGMENT Kalyan Jyoti Sengupta, J. This appeal is directed against the Judgement and order dated 15th December, 1990 passed by the learned Assistant District Judge, Tamluk in Title Appeal No. 69 of 1989. The appeal in the ld. Appellate Court below was preferred against the judgement and decree dated 10th August, 1989 passed by the ld. Munsif in the 1st Court, Tamluk in Title Suit No. 187 of 1984. The ld. Munsif dismissed the aforesaid Title Suit while dealing with an application made by the respondent no. 1 herein for bringing herself as a plaintiff upon the death of the original plaintiff in the Title Suit. The ld. Munsif while dismissing that application held that the application made by the respondent no. 1 for bringing herself as a party plaintiff striking out the name of the original plaintiff on her death was not maintainable. It was further held by the ld. Munsif that on death of the original plaintiff as there was no lawful application for substitution of the original plaintiff the suit had abated wholly. Accordingly the suit was liable to be dismissed. The ld. Munsif on the date of dismissal of that application made by the respondent no. 1, dismissed the suit. 2. Against that order of dismissal of the application made by the respondent no. 1, the respondent no. 1 preferred the appeal before the ld. Court below. The ld. Court below allowed the appeal and set aside the order of dismissal and further directed the ld. Trial Judge to allow the application made by the respondent no. 1 for substitution of the respondent no. 1 in place and stead of the original plaintiff since deceased. It has been held by the ld. Appellate Court below that order of dismissal of the suit is wholly illegal as while deciding the question of abatement and further application for substitution, the ld. Munsif should not have dismissed the suit altogether. The ld. Appellate Court below was of the view that the application made by the respondent no. 1 is in real sense an application for substitution in place and stead of the deceased original plaintiff. It has been further observed by the ld. Appellate Court below that prayer of the application of the respondent no. 1 was not happily couched. 3. Mr. Mukherjee, the ld. Senior Advocate appearing for the appellant, submits that the ld. 1 is in real sense an application for substitution in place and stead of the deceased original plaintiff. It has been further observed by the ld. Appellate Court below that prayer of the application of the respondent no. 1 was not happily couched. 3. Mr. Mukherjee, the ld. Senior Advocate appearing for the appellant, submits that the ld. Appellate Court below ought not to have interfered with the order passed by the ld. Munsif so far as it relate to his decision holding the suit had abated. Mr. Mukherjee submits very fairly that the order of dismissal of the suit itself by the ld. Munsif is not justified under the law and as such the order of the ld. Appellate Court below setting aside the order of dismissal of the suit is acceptable. Mr. Mukherjee submits that I should interfere with the order of the ld. Appellate Court below so far as it relate to his decision that the suit had not abated and further the application made by the respondent no. 1 should be allowed by the ld. Munsif and consequently prayer for substitution of the respondent no. 1 should be allowed. 4. It is further submission of Mr. Mukherjee that the application made by the respondent herein before the ld. Munsif for amendment of the plaint in view of death of the original plaintiff. There was no application for substitution so to say, within the period of 90 days. In effect there was no application for substitution. Therefore, the ld. Munsif has rightly rejected the said application holding the suit has abated. He points out that even assuming for argument sake that the application made before the ld. Trial Judge was an application for substitution and recording death of the original plaintiff and substitution, then the respondent has no locus standi as she has claimed her right in terms of alleged will. He submits further that there is no record or document to show that probate has been granted to the said will. He further submits that nothing has been mentioned in the petition who are the legatees and/or executor in, the said will. On the strength of the will under the law only the named executor can represent the deceased tastator. He submits by virtue of the will there cannot be any devolution of interest of the deceased. He further submits that nothing has been mentioned in the petition who are the legatees and/or executor in, the said will. On the strength of the will under the law only the named executor can represent the deceased tastator. He submits by virtue of the will there cannot be any devolution of interest of the deceased. Moreover, there cannot be inheritance either by way of will or otherwise in respect of the alleged right of the original plaintiff as she had already disposed of her right, title and/or interest of the property. Until and unless the deed of gift is cancelled that has been prayed for in the suit itself, there cannot be any occasion of reason for inheritance of right, title, interest in the suit property. Mr. Mukherjee further submits therefore the ld. Trial Judge rightly rejected the said application. The order of the ld. Appellate Court below is wholly illegal and contrary to the law. The judgement of the learned Appellate Court below is liable to be set aside. 5. Mr. Mukherjee in support of his submission has cited the decisions one reported in the AIR 1959 Cal 368 and AIR 1977 Kant 53. In support of his submission that devolution of interest that the provision of Or. 22 r. 10 has no manner of application in this present case. 6. Mr. Tobarak Ali appearing on behalf of the respondent no. 1 submits that the learned Appellate Court below has rightly passed the impugned judgement and order and there is no reason to interfere with the same. He submits it is an admitted position that an application was made by the respondent no. 1 before the learned Trial Judge for bringing herself as a party in view of death of the original plaintiff. The said application technically was not made for substitution in place and stead of the original plaintiff but in effect it was an application for substitution. Therefore, there cannot be any question of any abatement so far as the suit relates to the right, title and interest of deity is concerned. Moreover, one of the daughters of the said deceased original plaintiff is already on record in different capacity, as such there was a substantial representation on the death of the original plaintiff no. 1. So there cannot be any question of abatement so far as it relate to the personal property is concerned. Moreover, one of the daughters of the said deceased original plaintiff is already on record in different capacity, as such there was a substantial representation on the death of the original plaintiff no. 1. So there cannot be any question of abatement so far as it relate to the personal property is concerned. He submits that so far as the interest of suit of deity is concerned the original plaintiff filed the aforesaid suit in the capacity of Sebait. By a will the right of Sebait-ship has been bequeathed unto and in favour of the respondent no. 1. He submits an application for probate has already been made. On the death of the said original plaintiff no. 1 the right, title and interest of the original plaintiff no. 1 has devolved upon the respondent no. 1 by virtue of the said will. He submits that therefore this is a clear case of devolution and/or assignment of interest of the original plaintiff no. 1 in the capacity of Sebait in favour of the respondent no. 1. Therefore, there cannot be any question of abatement whatsoever even as on today. So he submits that the order of the learned Appellate Court below is absolutely good in law. 7. I have heard the respective submission of both the learned Lawyers. I am of the view that the order appealed against does not call for any interference of this Court for the following reasons. 8. An application admittedly was made within the period of 90 days by the respondent no. 1, in effect, for bringing herself as a plaintiff to the said suit on death of the original plaintiff no. 1. It is an admitted position that the respondent no. 1 is one of the daughters of the deceased plaintiff. Another daughter of the deceased plaintiff is the respondent no. 2. Therefore, the whole question remains as to whether the application made before the learned Trial Judge is entertain-able for granting such reliefs which has been granted by the learned Appellate Court below. It is settled law that were not mentioning and/or mistaken mentioning of particular section and/or the provision of the Civil Procedure Code in the application do not render the same bad in law. It is settled law that were not mentioning and/or mistaken mentioning of particular section and/or the provision of the Civil Procedure Code in the application do not render the same bad in law. Upon reading of an application as a whole if it transpires that the real object of such application is for recording death and substitution of the deceased plaintiff then it is immaterial whether such provision is mentioned in the petition or not or for that matter mistaken provision is mentioned. It is settled law that under s. 151 of the Code of Civil Procedure the Court can mould the relief for the ends of justice. In my view, upon reading of the application made before the learned Trial Judge, it appears that the said application was made in effect for recording death of the deceased plaintiff and her substitution. Therefore, the learned Appellate Court below has rightly granted the relief. The objection of Mr. Mukherjee to the effect that without obtaining probate of the will the right of the applicant cannot be established under s. 213 of the Indian Succession Act, 1925. It is true that the right, title and interest emanating from a will cannot be established before the Court of law unless probate thereof has been obtained and/or produced. The combined reading of Ss. 213 and 214 of the Indian Succession Act of 1925 suggest that the same have precluded the Court from passing any decree but there is no bar to proceed with the trial of the suit. Only embargo therein is that the Court will not grant final relief unless probate of the will is produced. This legal proposition has been pronounced by a decision reported in AIR 1978 All 268. Therefore, the non-production of a probate will not be a bar to make an application for substitution and to proceed with the suit. The suit has been filed for establishing the right, title and interest of the original plaintiff, in respect of her personal property as well as in the capacity of the Sebait for the properties belonging to deity. So far the action in relation to the individual interest of the original plaintiff is concerned, the question of abatement does not arise in view of the aforesaid application being made admittedly within 90 days. Moreover, as the learned Lawyer for the respondent no. So far the action in relation to the individual interest of the original plaintiff is concerned, the question of abatement does not arise in view of the aforesaid application being made admittedly within 90 days. Moreover, as the learned Lawyer for the respondent no. 1 rightly submits that one of the daughter of the said deceased was already on record though in different capacity, as such the question of abatement does not arise. It required only recording of death and for bringing the other heiress of the said deceased plaintiff. So far the right, title and interest in the capacity of Sebait is concerned there cannot be any question of abatement as the same is governed by Or. 22 r. 10 of the Code of Civil Procedure devolution of right, title and interest under provisions of Or. 22 r. 10. I am unable to accept the submission of Mr. Mukherjee that the question of inheritance and/or succession of the original plaintiff by the respondent no. 1 whether by a will or intestacy, does not and cannot arise, particularly, because of the properties having been disposed of by the original plaintiff no. 1 during her life time by deed of gift, and the same is under challenge in the said suit; unless and until the said deed of gift cancelled and set aside by the competent court of law the respondent no. 1/applicant cannot derive any interest enabling her to come in the suit. 9. The Court is to examine and consider while dealing with an application for substitution of party in a suit, whether the suit has abated on death of the deceased plaintiff or not; and whether the right to sue survives or not. If the right to sue survives then the heir or heiress as the case may be, and legal representatives can come in and make an application in the suit irrespective of the fact that the original plaintiff had any right, title and interest in the suit properties. Right to sue means right of action. In my view, in this suit on death of the original plaintiff no. 1 the right of action survives and there is no automatic abatement within the period of 90 days. Upon examining the entire plaint I find that right of having declaration of the deed of gift is the real issue and/or cause of action. In my view, in this suit on death of the original plaintiff no. 1 the right of action survives and there is no automatic abatement within the period of 90 days. Upon examining the entire plaint I find that right of having declaration of the deed of gift is the real issue and/or cause of action. Such right is liable to be handed down to the heiress and legal representatives for adjudication. Therefore, the decisions cited by Mr. Mukherjee are no manner of application in this case. On the facts and circumstances and for the reasons aforesaid I accordingly dismiss the appeal and affirm the order of the learned Appellate Court below. The interim order passed earlier stands vacated. There will be no order as to costs. 10. Let the record be sent down by the learned Registrar, Appellate Side forthwith. The suit is very old one. Accordingly, I desire that the suit should be heard as expeditious as possible preferably within a period of three months from the date of receiving the records from this Court without granting any adjournment save and except on unavoidable circumstances. Appeal dismissed.