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2001 DIGILAW 334 (PAT)

Bangali Singh v. Ramanuj Sharma

2001-04-11

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. This second appeal is directed against the judgment of first appellate court, 2nd, Additional District Judge, Patna, in Title Appeal No. 63 of 1983 whereby the appellate court confirmed the judgment and decree passed by Sri K.M. Agarwal, Subordinate Judge, Barh, passed in Title Suit No. 27 of 1978. The defendants of that suit and the appellants of the first appeal are the appellants before this Court. 2. In a nut-shell the relevant facts are that Title Suit No. 27 of 1978 was filed by one Mostt. Daro Kuer seeking cancellation of a deed of gift allegedly executed by her in favour of defendants of the suit. However, during the course of hearing of the suit the original plaintiff Daro Keur died. Then Ramanuj Sharma, the respondent of this second appeal, was substituted in her place on the basis of a deed of will allegedly executed by the original plaintiff claiming himself to be son of the sister of the deceased Daro Kuer. The suit was decreed and in the appeal also the decree of the trial court was confirmed. Then the defendants of the suit and appellant in the first appeal preferred the present Second Appeal before this Court. 3. The only question of law formulated in this second appeal was whether the substitution of Ramanuj Sharma on the basis of unprobated will was valid and whether he was entitled to continue the suit. 4. It was contended before me by the appellants lawyer that under Section 213 of the Indian Succession Act nobody can claim any right or interest on the basis of an unprobated will. Therefore, when the original plaintiff died, Ramanuj Sharma could not be substituted in her place on the basis of the deed of will which was not probated. Hence, the decree passed by the trial court and the appellate court in his favour were illegal and invalid. 5. Order 22 C.P.C. has provided for the substitution of legal representative of the deceased plaintiff. Rule 3 of Order 22 has laid down that when the sole plaintiff dies the court on an application made in this behalf shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. 5. Order 22 C.P.C. has provided for the substitution of legal representative of the deceased plaintiff. Rule 3 of Order 22 has laid down that when the sole plaintiff dies the court on an application made in this behalf shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Legal representative has been defined in Section 2(11) C.P.C. as "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". In the instant case, Ramanuj Sharma claimed himself to be the son of the sister of the original plaintiff and he was claiming to hold a will executed by the deceased plaintiff. So in my considered opinion, the substituted plaintiff Ramanuj Sharma was the legal representative of the original plaintiff. Hence, his substitution was neither illegal nor bad in the eye of law. Learned appellants lawyer referred to a decision reported in AIR 1980 Cal. page 117. (Ajit Kumar Hazra and others V/s. Rathindra Nath Roy). This decision refers to a suit for eviction filed by two brothers Ram Mohit and Ram Mohan. Ram Mohit died during the pendency of the suit and two persons claiming to be executors of the will executed by Ram Mohit sought their substitution on place of Ram Mohit. The trial court rejected the application. However, the Calcutta High Court set aside the order of the Munsif rejecting the prayer for substitution and held that executors of deed will be legal representative of the deceased plaintiff and, so, they could be substituted in his place. However, the Calcutta High Court held further that the substituted plaintiff could not obtain decree without obtaining probate of the said will. I shall deal with his question whether the substituted plaintiff can obtain a decree or not at subsequent stage. At this stage, I am to consider whether Ramanuj Sharma was legal representative on the basis of the deed of will and whether he could have been substituted in place of the original plaintiff. I shall deal with his question whether the substituted plaintiff can obtain a decree or not at subsequent stage. At this stage, I am to consider whether Ramanuj Sharma was legal representative on the basis of the deed of will and whether he could have been substituted in place of the original plaintiff. As I have held above and the reported decision indicates, it is more than obvious that the person holding a will in his favour is the legal representative of the testator and so he can be substituted in place of the original plaintiff. Now, the next question, which is the main and the crucial question, is whether the substituted plaintiff will obtain a decree in the original suit filed by the deceased plaintiff. In this connection, I am to refer to Order 22 Rule 4A, C.P.C., where it has been laid down that if, in any suit it shall appear to the court that there is no legal representative of the party who died during the pendency of the suit, the court may on the application of any party to the suit proceed in absence of a person representing the estate of the deceased person, or may by order appoint the Administrator-General, or an officer of the court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of the suit; and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a personal representative of the deceased person had been a party to the suit. This rule was added by amending Act 104 of 1976. The aforesaid provision makes it abundantly clear that a suit may be allowed to proceed even in the absence of the deceased plaintiff or defendant by a person who is appointed by the court to represent the estate of the deceased plaintiff or defendant and the suit may be continued by that person and a judgment and decree may be passed. This judgment and decree will bind the estate of the deceased. That means the estate of the deceased will be protected by the judgment and decree passed by the court. This judgment and decree will bind the estate of the deceased. That means the estate of the deceased will be protected by the judgment and decree passed by the court. So, the spirit behind substitution is that interest of the original plaintiff or defendant who dies during the pendency of the suit and who is to be represented by the substituted plaintiff may be protected. This is the inherent spirit behind substitution. So, when the original plaintiff, Daro Kuer, had filed a suit seeking setting aside of the alleged deed of gift executed by her in favour of the defendants of the suit, the legal representative, whoever may be, shall be entitled to continue the suit and protect the interest of the original plaintiff. If the suit is allowed to abate, the interest of the original plaintiff shall become extinct and the defendants of the suit shall be holding the suit land under illegal right. Normally when estate of any person is without any heir the property goes to the State by escheat, but when suit abates and the defendants of a particular suit is allowed to hold the suit land illegally, even the State cannot take the property of the deceased plaintiff by escheat. So, guiding principle behind substitution as mentioned in the amending Rule 4A Order 22 C.P.C. is that the suit must be allowed to be continued by a legal representative in order to protect the interest of the original plaintiff and to protect his or her estate from being usurped by unauthorised person. So, I do not think that the decree passed by the trial court was bad or the decree confirmed by the appellate court was also vitiated by any illegality. The decree passed in the instant suit would, therefore, be a decree in favour of the original plaintiff, Daro Kuer and not in favour of the substituted plaintiff. Now I shall hereinbelow consider when Ramanuj Sharma acquired any right being the legal representative of Daro Kuer by virtue of the decree passed by the lower courts. In this connection, I am to refer to a decision cited by the defendants lawyer as reported in AIR 1971 Ker. page 270 (Geevarghese Geevarghese and another V/s. Issahak George and others). In this decision Kerala High Court held that nobody can claim any right under any will without obtaining probate of the same. In this connection, I am to refer to a decision cited by the defendants lawyer as reported in AIR 1971 Ker. page 270 (Geevarghese Geevarghese and another V/s. Issahak George and others). In this decision Kerala High Court held that nobody can claim any right under any will without obtaining probate of the same. However, this decision is not applicable to the facts of this case because in the reported decision (supra) the plaintiffs were claiming their right and interest on the basis of a will directly which, perhaps, remained unprobated. So, the High Court held that without obtaining probate the legatee could not obtain any decree without obtaining the probate of the will. The spirit of Section 213 of the Indian Succession Act is that nobody can execute his right and interest acquired directly through a deed of will without obtaining its probate. However, in the instant case, the substituted plaintiff Ramanuj Sharma was not claiming his interest over the suit land by will. He was rather seeking to continue the suit as legal representative of the original plaintiff on the basis of a deed of will, be being the son of the sister of the deceased. I have already held above that by obtaining the decree Ramanuj Sharma had simply protected the interest of the original plaintiff and he had not secured any right over the suit land on the basis of his deed of will. So, I am of the opinion that the two decisions referred to above are not applicable to the facts of this case and so, I am of the opinion that decree granted by the two courts below in favour of the substituted plaintiff neither suffered from any illegality nor irregularity. Before parting with this judgment, I would like to mention one more piece of argument advanced by the appellants lawyer. 6. Appellants lawyer submitted that the defendants of the suit (appellants here) were the sons of the brother of the original plaintiff Daro Kuer and, therefore, they were entitled to succeed to the property of the deceased plaintiff by virtue of their relationship. However, I am to opine that here comes the play of Hindu Succession Act, 1956. 6. Appellants lawyer submitted that the defendants of the suit (appellants here) were the sons of the brother of the original plaintiff Daro Kuer and, therefore, they were entitled to succeed to the property of the deceased plaintiff by virtue of their relationship. However, I am to opine that here comes the play of Hindu Succession Act, 1956. Section 15 of the aforesaid Act has laid down the manner of succession to the property of a female Hindu dying intestate when a Hindu female dies without any testament, her property devolves firstly upon her sons and daughters and the husband; secondly, it devolves upon the heirs of her husband; thirdly, upon the mother and father; fourthly upon the heirs of her father and lastly upon the heirs of her mother. In the instant case, the defendants were claiming to be the sons of brother of the deceased. So, perhaps, they are claiming as heirs of the father of the deceased. However, Ramanuj Sharma the substituted plaintiff, was claiming himself to be the son of the sister of the deceased. So, he would be fourth claimant as heir of the father of the deceased. The son and daughter of a father are equally entitled to the property of their father. So, the defendants were not the only heirs of the deceased plaintiff Daro Kuer, whereas the substituted plaintiff was also the heir as good as the defendants. So, it was the alleged deed of gift executed by Daro Kuer in favour of the defendants which was declared either valid or invalid in the suit filed by the original plaintiff Daro Kuer. The very fact that the suit was filed by Daro Kuer herself seeking cancellation of the deed of gift, which was claimed by the defendants, indicated that there was something fishy about the execution of deed of gift. Now the question is whether the substituted plaintiff will acquire any right over the suit property by cancellation of the deed of gift. In this connection, it was pointed out by the appellants lawyer that the relief sought in the original plaint was to the effect that it be declared that the deed of gift was in-operative, void and the title of the plaintiff (original) remained unaffected. So, the decree regarding cancellation of deed of gift ipso facto will not give any right to Ramanuj Sharma the substituted plaintiff. So, the decree regarding cancellation of deed of gift ipso facto will not give any right to Ramanuj Sharma the substituted plaintiff. However, if it was declared by the court by its decree that right of the plaintiff remained uneffected, that may amount to the declaration that the substituted plaintiff Ramanuj Sharma had also acquired title to the suit property. In this connection, I am of the opinion that, of course, the decree in the present form might indicate that the right of the substituted plaintiff in the suit land remained unaffected. However, of course, the substituted plaintiff would derive no title, right and any interest in the suit land by virtue of the unprobated will although he might act as legal representative to continue the suit. So, it is made clear here and it is observed that the substituted plaintiff, Ramanuj Sharma shall derive no right, title and any interest over the suit property by seeking the cancellation of the deed of gift, as decreed by the two lower courts. It is the original plaintiff whose right and title of the suit property shall remain unaffected by the decree granted by the two lower courts. 7. In the result, this appeal is dismissed with above observation regarding right and title of the substituted plaintiff Ramanuj Sharma. The decree of the two lower courts shall stand modified to the extent as mentioned in the closing lines of the preceding paragraph.