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2007 DIGILAW 403 (MAD)

Murugesan & Another v. Kuppammal & Others

2007-02-01

S.ASHOK KUMAR

body2007
Judgment :- This revision has been preferred by the plaintiffs, as against the rejection of the memo filed by them to record the death of the first defendant. 2. The revision petitioners/plaintiffs filed the suit for partition of the suit properties by passing a preliminary decree and separate possession of plaintiffs 2/5th share an to make provision for appointment of an Commissioner to divide the suit properties as per the preliminary decree and to pass a final decree accordingly. The two plaintiffs are sons of the first defendant. The second defendant is the mother and other defendants are siblings of the defendants. 3. According to the plaintiffs, pending the suit the first defendant, their father died intestate leaving the plaintiffs and the other defendants as his legal heirs as legal representatives and therefore they filed the memo for recording the death of their father, the first defendant. After the death of the first defendant, the ratio of share to each parties gets modified and for the first time the second and fifth defendants entitled to a share in the first defendants 1/5th share. Therefore, the plaintiffs are entitled to 7/30th share and the respondents 3 and 4 each entitle to 7/30th share and the second and fifth respondents are each entitled to 1/30th share in the suit properties. Therefore, the plaint is also to be amended to the said effect. 4. The defendants contested the said memo by filing a counter stating that the plaintiffs being sons knew very well about the date of death as on 10. 1997 itself and within three months they should have taken steps or informed the court about the death and failing to do so, the suit abates. Moreover the memo filed by them is equivalent to filing of an application, therefore this memo not filed along with applications to set aside the abatement and also to excuse the delay will not lie. It is not correct to state that the first defendant died intestate. He had executed a Will bequeathing the suit properties to defendants 2 to 4. .5. On a consideration of the memo and the counter filed by the defendants, the learned Subordinate Judge, Chidambaram dismissed the said I.A., holding that the plaintiffs have not stated the date of death of the first defendant which is most crucial to decide the issue of survivorship. .5. On a consideration of the memo and the counter filed by the defendants, the learned Subordinate Judge, Chidambaram dismissed the said I.A., holding that the plaintiffs have not stated the date of death of the first defendant which is most crucial to decide the issue of survivorship. Further, the memo is very belated and cannot be entertained and therefore the memo cannot be recorded. Aggrieved over the same, the present revision has been filed by the plaintiffs. 6. Admittedly it is a partition suit. The plaintiffs are the sons of the first defendant. The second defendant is the mother and other defendants are the siblings of the defendants. As per Order XXII Rule 1, CPC, there shall be no abatement by partys death, if right to sue survives. The Rule provides that the death of a plaintiff or defendant shall not cause the suit to abate, if the right to sue survives. In the present case, on the death of the first defendant the property devolves among the legal heirs who are plaintiffs and other defendants and therefore no abatement caused on the death of the first defendant. Further Order XXII Rule 2, where there are more plaintiffs and defendants than one, and any one of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs, alone or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the records, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs or against the surviving defendant or defendants. The above rule also makes it clear that on the death of the first defendant, the suit shall proceed at the instance of the plaintiffs as against the surviving defendants and for that purpose, the court shall cause an entry to that effect to be made on the records. For the purpose of recording such fact only, the plaintiffs filed the memo which has been rejected on the ground that it is against the procedures. 7. The period of limitation of 90 days would apply only to filing of applications in case of death of one or several plaintiffs or one or several defendants to bring them on record as their legal representatives as provided under Article 120 of the Law of Limitation. 7. The period of limitation of 90 days would apply only to filing of applications in case of death of one or several plaintiffs or one or several defendants to bring them on record as their legal representatives as provided under Article 120 of the Law of Limitation. Under Article 137 any other application for which no period of limitation is provided the limitation is three years. However, Order XXII Rule 2 prescribes in the case of right to sue survives, the procedure is that the Court shall cause an entry to that effect to be made on the records and it does not mandate a procedure to file an application to be made in that behalf as provided in Rule 3,4 of CPC. Since the issue falls within Rule 2 of Order XXII CPC, an application for such recording is not necessary and the plaintiffs are right in filing the memo which also does not attract the provisions of law of limitation. .8. In 2002 (7) SCC 113 (Nagina Singh Vs. Naga Singh) which is a case where the suit has been filed for partition and the first defendant died pending the appeal before the High Court and his legal representatives were also brought on record. Subsequently some of the LRs died and their legal representatives were sought to be brought on record by taking out an application. But the same was rejected by the High Court on the ground that the facts mentioned in the application for substitution had been controverted by the respondents and since no rejoinder was filed there was no justification for condoning the delay and setting aside the abatement and the appellants were guilty of making wrong statements before the court. But the appellants case was that the respondents were remiss in not producing the relevant material disputing the dates of death given by the appellants, they were able to obtain the death certificates granted by the Gram Sevak. But the review filed on the basis of the death certificates was also dismissed by the High Court. But the appellants case was that the respondents were remiss in not producing the relevant material disputing the dates of death given by the appellants, they were able to obtain the death certificates granted by the Gram Sevak. But the review filed on the basis of the death certificates was also dismissed by the High Court. In that context, the Supreme Court held that having regard to the fact that all the contesting parties were already on record and the appellants were only brought on record as LRs of the deceased first defendant who had died pending the appeal before the High Court, it ought to have condoned the delay in filing the substitution application and could have compensated the respondents by awarding cost. In the interest of justice this is considered as appropriate. 9. In the above decision, the partition suit was filed in the year 1978 and the Supreme Court having regard to the facts and in the interest of justice as the suit is one for partition condoned the long delay. But, in the present case, as already held there is no necessity to file an application as provided under Or.22, R.2 CPC and therefore even the limitation will not arise and therefore, the order of the trial court in rejecting the memo filed by the revision petitioners is liable to be set aside and consequently the dismissal of the I.A.1192 of 2003 filed to amend the Plaint, which is only a consequential order to the dismissal of the memo is also liable to be set aside. 10. As regards the allegation that the first defendant executed a Will bequeathing all the suit properties to defendants 2 and 4, it is for them to raise such a plea in the pending suit by amending the written statement if it is permitted under law, or file a separate suit, if they are so advised. 11. Under these circumstances, the order of the trial court dated 29. 2003 in rejecting the memo is set aside and the trial court is directed to record the memo filed by the revision petitioners/plaintiffs and consequently amend the Plaint pleadings to the said effect. With these directions, this CRP is allowed. Consequently, connected CMP is closed. No costs.