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2003 DIGILAW 612 (CAL)

Anjali Ghosh v. Subodh Kumar Ghosh

2003-12-04

Indira Banerjee, Samaresh Banerjea

body2003
JUDGMENT: 1. THE present application has been made by the appellant-wife in the pending appeal being F. A. No. 18 of 1999 for bringing legal representatives of the sole respondent Subodh Kumar Ghosh, who was the husband of the appellant. The Trial Court having allowed the application of the husband for divorce and having got decree in respect thereof, the appeal was preferred by the wife against the said judgment and decree. It appears that during the pendency of the appeal the husband respondent died intestate on 29th October, 2003. 2. ACCORDING to the petitioner the said husband died intestate leaving behind the appellant as a sole surving Class-I heir of the schedule under section 8 of the Hindu Succession Act and accept the petitioner. The deceased also left behind his father Jogendra Nath Ghosh and his three sisters, namely, Mina ghosh, Gita Das Gupta (nee Ghosh) and Rani Das (nee Ghosh) as his legal representatives. In the present application prayer is being made for substituting and/or adding the said legal representatives of the deceased husband in place and stead of deceased and to bring them on record as respondents. After considering the application and hearing the parties it appears to this Court that ostensible simple application legally involves very interesting and important question of law. 3. SINCE in the matrimonial appeal the respondent husband has died, one may reasonably wonder how there can be any substitution or addition of any person as respondent therein. 4. WE, however, need not be troubled with an investigation into such question any further as our attention has been drawn by the learned Counsel appearing for the petitioner to the decision of the Supreme Court in the case of Yallawwa vs. Shantavva, reported in AIR 1997 SC 35 , by which the Supreme Court has clinched the issue and pronounced the position of law in no uncertain terms. In paragraph 8 of the said reported it has been held by the Supreme court that after a decree of divorce is obtained by the petitioning husband against his wife she has right to file an appeal and such appeal does not abate on account of the death of the respondent-husband whether such death takes place prior to the filing of appeal or pending the appeal, and in such a case legal heirs of the deceased husband can be brought on record as opponents or respondents by the aggrieved spouse who wants such decree to be set aside and when the other heirs of the deceased husband would naturally be interested in getting such decree confirmed either in appeal or under Order 9 Rule 13,cpc. 5. SUCH being the position in law the petition is not upheld. The appellant is certainly entitled to bring on records the other heirs of the husband. 6. AN affidavit has been filed apparently on behalf of Jogendra Nath Ghosh father of the deceased but affirmed by one of the sisters Smt. Gita Das Gupta contending inter alia, that the father can be brought into record, but the sister, cannot be so long the father is alive. The sister being Class-II heiress cannot be gone into. The learned Counsel appearing on behalf of the petitioner, however, submits that the application which he had made is not for merely bringing the heirs on record by the legal representatives. 7. OUR attention has been drawn to section 2 (11) of the Code of Civil procedure, wherefrom it appears that legal representative also includes a person who is an intermeddle with the estate of the deceased. 8. IT has been submitted that the sister although may not be immediate heiress being Class-II heirs are suddenly intermeddles inasmuch as the sisters are certainly interested in denying the status to the appellant as wife and now widow of the deceased. It has been submitted that a matrimonial suit is in the nature of a declaration of status also and in such a suit anybody who wants to deny the status of a person as wife suddenly comes within the meaning of intermeddlers. 9. It has been submitted that a matrimonial suit is in the nature of a declaration of status also and in such a suit anybody who wants to deny the status of a person as wife suddenly comes within the meaning of intermeddlers. 9. AFTER considering the respective submissions of respective parties and the entire material on record, we are of the view that it has rightly been contended by the learned Counsel for the petitioner that the sister would certainly come as an intermeddler within the meaning of section 2 (11) of the code of Civil Procedure. In the instant case as it will appear from the records that they deposed even in the suit against the appellant while and even here has affirmed any affidavit. We have no doubt therefore in mind that the sisters are very much interested in denying the status of the appellant as wife and now widow of the deceased respondent. That such being the position, we do not find any wrong in the prayer of the appellant for bringing the sisters also on record as legal representatives of the deceased. 10. IT would be fruitful in this connection to refer to the Full Bench decision of the Patna High Court in the case of Sudama Devi and Ors. vs. Jogendra choudhary and Ors., reported in AIR 1987 Patna 239. The said Full Bench interpreted a meaning and purport of the expression "intermeddler" within the ambit of section 2 (11) of the Code of Civil Procedure. In this connection the relevant paragraphs 9, 10, 11 and 12 of the said judgment are quoted hereunder: "9. To my mind, the heart of the issue herein is whether in the facts situation as also in the eye of law the legal guardian of the deceased minor is not also at least an intermeddler with his estate. Section 2 (11) of the Code of Civil procedure is in the following terms: 'legal representative' means 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. 10. 10. It is plain from the above that the definition herein is a wide and inclusive one and conceives of two distinct categories. Firstly, the heirs or persons, who in law represent the estate of the deceased person. However, at part with them and in a class by itself is any person who intermeddles with the estate of the deceased. Such a person is equally a legal representative. Now the phrase intermeddler with the estate has come to be a term of art and has been construed as one of the widest amplitude. This apart, even the dictionary meaning of the word is one of considerable width. In Chambers's twentieth Century Dictionary the word 'meddle' is given the meaning to "interfere unnecessarily, or, without being entitled. ' Intermeddle is 'to meddle or to interfere improperly'. In the New Oxford Illustrated Dictionary, 'meddle' means to concern one-self with what is not ones business. According to the random House Dictionary 'intermeddler' means one who 'interferes or intermeddles', which in turn means to 'interfere officiously and unwantedly'. It is thus manifest that even on its plain dictionary meaning the word is one of wide amplitude. 11. This word has also been the subject-matter of considerable judicial scrutiny both in Indian and English laws. In Mst. Naro vs. Harbanslal, AIR 1962 Punj 457 Tek Chand, J., speaking for the Division Bench, observed as under: 'intermeddling means to meddle with the affairs of others in which one has no concern, to meddle officious; to interpose or interfere improperly. It signifies meddling with the property of another improperly. Intermeddling may take several forms including collecting or taking possession of the assets or other act, which might evince a legal control. A legal person, who intermeddles, is on the same footing as an executor de son tort (executor of his own wrong) as he takes upon himself the office of an executor by intrusion and not so constituted by the testator. He is a person who without authority intermeddles with the estate of the deceased. Very slight act of intermeddling with the property of the deceased makes a person executor de son tort. . . . . . . . . . . He is a person who without authority intermeddles with the estate of the deceased. Very slight act of intermeddling with the property of the deceased makes a person executor de son tort. . . . . . . . . . . There is authority for the proposition that when a person intermeddles with the property of the deceased he is a legal representative of the deceased for the purposes of procedure to the extent of the property with which he has intermeddled. . . . . . . . . ' it would follow from the above that precedent has also authoritatively given to the word 'intermeddler' an extremely expanded construction. Indeed, as has been noticed above, an intermeddler is on the same footing as an executor de son tort. In the Halsbury's Laws of England, Fourth Edition, Vol. 17, in para 754, it has been said as under with regard to an executor de son tort: 'the slightest circumstance may make a person executor de son tort, if he intermeddles with the assets in such a way as to denote an assumption of the authority or an intention to exercise the functions of an executor or administrator. Demanding payment of debts due to the deceased, paying the deceased's debts, carrying on his business, or disposing of goods may make a person executor de son tort; but setting up a colourable title to the deceased's goods is not enough. A person who enters upon or collects the rents of a deceased person's leasehold property and pays the ground rent may, by reason of privity of estate or estoppel, render himself liable to the landlord upon the covenants of the lease as executor de son tort, but a person who takes over leasehold property from an executor de son tort does not. ' 12. It would be manifest from the above that an intermeddler (who is on the same footing as an executor de son tort in English law) is one who in any way whatsoever dabbles with or conies in touch with the estate of the deceased. The wide sweep of the phrase, as a term of art, and the intention of the legislature in expressly including an intermeddler in the definition of legal representatives under section 2 (11) (of the Civil P. C. is thus not in doubt. The wide sweep of the phrase, as a term of art, and the intention of the legislature in expressly including an intermeddler in the definition of legal representatives under section 2 (11) (of the Civil P. C. is thus not in doubt. " The same view has been expressed by the Madras High Court in the case of K. Mathlyanan vs. R. Jayalakshmi (died) and Anr., reported in AIR 2001 madras 103. 11. LASTLY it is rightly contended by the learned Counsel appearing for the applicant that even by exercise of power of Order 50 Rule 10 (2) of the Code of civil Procedure this Court can direct addition of the aforesaid persons who are present before the Court and that is thought to be necessary in order to effectually and completely adjudicate upon and settle of the questions involved in the suit. 12. RELIANCE in this connection has been placed also by the learned Counsel for the applicant in the case of Razia Begum vs. Sahebzadi Anwar Begum and ors., reported in AIR 1958 SC 886 , where it has been held inter alia by the supreme Court that where the subject-matter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the Court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy. Such party can be added. The present appeal arises out of a decree of divorce passed under section 13 of the Hindu Marriage Act and certainly involves the question of status of the wife. Unfortunately even before the disposal of the appeal the respondent husband died. 13. IF that is not said that does not mean that in such a situation the Court will accept the situation where the appellant will be without any remedy. 14. UNDOUBTEDLY this appeal involves the question of status of wife and also, inheritance the property and the suit not having been abated, the sisters certainly in any event should be added for complete adjudication of dispute in the interest of justice. The application, therefore, succeeds and the same is hereby allowed. 15. 14. UNDOUBTEDLY this appeal involves the question of status of wife and also, inheritance the property and the suit not having been abated, the sisters certainly in any event should be added for complete adjudication of dispute in the interest of justice. The application, therefore, succeeds and the same is hereby allowed. 15. LET the persons named in the cause title, namely, (a) Jogendra Nath ghosh (father), (b) Smt. Mina Ghosh (sister) daughter of Jogendra Nath Ghosh; (c) Smt. Gita Das Gupta (nee Ghosh) (sister) daughter of Jogendra Nath Ghosh and (d) Smt. Rani Das (nee Ghosh) (sister) widow of late Shibu Das. All are residing at 39a, Kalighat Road, Police Station Kalighat, Kolkata- 700026 be brought on record as legal representatives of the deceased respondent. 16. THE cause title of the memorandum of appeal and the application (CAN 7485/2001) be amended accordingly by the Department forthwith. Before parting with the matter it may be recorded that the learned counsel appearing on behalf of Sri Jogendra Nath Ghosh submitted at the initial stage that this application cannot be heard by the Division Bench as under the Appellate Side Rules it has to be heard by the learned Registrar. We, however, do not find any such constraint in a part heard application. The appeal is part heard before us and while the appeal has been heard in part by us the death of the respondent occurred and therefore rightly the present application for substitution has been made before the Bench taking of the appeal. It may be recorded that it is now necessary for the department to serve notice of the appeal upon such substituted and/or added respondents. The same may be done by registered post with acknowledgment due at the cost of the appellant to be put in within a week from date. Such service of notice upon Sri Jogendra nath Ghosh is dispensed with since he has already entered his appearance through his learned Advocate. 17. XEROX certified copy of this judgment if applied for must be given to the parties within two weeks from the date of application.