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2011 DIGILAW 320 (CAL)

Jaydeb Shaw v. Purna Chandra Velecha

2011-03-07

HARISH TANDAN

body2011
JUDGMENT: HARISH TANDON, J. This revisional application is directed against the judgment and order dated January 31, 2007 passed by the Civil Judge (Senior Division) 4th Court, Alipore in Misc. Case No. 24 of 2006. The petitioner filed an application under section 47 read with Order 21 Rule 97 to 103 of the Code of Civil Procedure challenging the ex parte decree passed in Title Suit No. 103 of 1994 as nullity, having passed against one of the defendant who was dead. Briefly stated the fact, one Ranibala shaw, Sashibala Shaw and Fulkumari Bewa having purchased the premises in question from one Gopal Chandra Paul by a dint of purchase dated November 3, 1947, and after the death of Fulkumari her share devolved upon her two daughters namely Sashibala and Ranibala in equal share and thus the said daughters became the owners to the extent of undivided half share each. The said Ranibala and Sashibala entered into the joint venture agreement with the decree holder/opposite party no. 1 for the development of the property in question and also took a sum of Rs. 2,75,000/-in terms of the said agreement. The decree holder/opposite party no. 1 filed Title Suit No. 103 of 1994 against the said Ranibala and Sashibala praying for a decree for specific performance of the said joint venture agreement with an alternative prayer of refund of the said sum of Rs. 2,75,000/-along with interest. Writ of summons were issued upon the said defendants namely Ranibala and Sashibala and from the report of the process server it was brought to the notice that the said Ranibala died during the pendency of the suit. Upon enquiry, the decree holder/opposite party came to know that the said Ranibala during her lifetime executed and registered a deed of gift whereby she donated her share to her two daughters namely Namita Shaw and Sabitri Shaw. Although apart from the said daughters the petitioner and another daughter namely Anita shaw was deprived. The decree holder/opposite party no. 1 made an application for substitution of the aforesaid two daughters namely Namita Shaw and Sabitri Shaw on the strength of the devolution of interest by executing the said deed of gift and the said application was eventually allowed. Even after the substitution, the writ of summons were issued upon the aforesaid daughters but they did not appear. 1 made an application for substitution of the aforesaid two daughters namely Namita Shaw and Sabitri Shaw on the strength of the devolution of interest by executing the said deed of gift and the said application was eventually allowed. Even after the substitution, the writ of summons were issued upon the aforesaid daughters but they did not appear. Subsequently one of the daughter namely Namita Shaw also died as spinster and decree holder/opposite party no. 1 filed an application for expunction of her name. In spite of service of summons she neither appeared nor contested the said suit by filing written statement. The trial court allowed the said application and the name of the said Namita Shaw was expunged. Ultimately the suit was posted for final hearing and was decreed ex parte on 27th October, 2005 negativing the claim of specific performance of the said agreement but allowing the claim of the refund of Rs. 2,75,000/-along with interest @ 5% per month till realization and a decree for permanent injunction restraining the defendant from alienating, encumbering and/or disposing of the suit property in any manner until the payment of the decreetal amount. The said decree was put into execution. At this juncture the petitioner filed an application under section 47 read with Order 21 Rule 97 to 103 of the code of Civil Procedure which was registered as Misc. Case No. 24 of 2006. Challenging the said decree as nullity and also declaration of his right in respect of his undivided share in the property in question, The principal ground of attack to the said decree in the said application filed by the petitioner is that the defendant no. 2 Sashibala died on January 23, 2000 leaving behind two sons and one daughter and the decree having passed against her is a nullity. It is further alleged that Ranibala had four heirs and only two daughters were made party. It is further alleged that a suit is already filed for cancellation of the aid deed of gift and the same is pending. Lastly it is contended that even if the deed of gift is presumed to be valid upon the death of the sister being spinster her share devolves upon the petitioner being the brother of the said deceased. It is further alleged that a suit is already filed for cancellation of the aid deed of gift and the same is pending. Lastly it is contended that even if the deed of gift is presumed to be valid upon the death of the sister being spinster her share devolves upon the petitioner being the brother of the said deceased. The said application filed by the petitioner was contested by the opposite party by filing a written objection contending that the death of the defendant no. 2 was never brought to the notice during the pendency of the suit and in view of the provision contained under Order 22 Rule 4(4) of the Code of Civil Procedure non-substituting the legal heirs of the said deceased does not make a decree invalid or nullity. It is further contended that the said Ranibala during her lifetime gifted her share to her two daughters. The petitioner was not substituted as having no interest in respect of the subject matter of the suit. The further contention is made that the name of Namita was allowed to be expunged and as such the decree passed is binding upon all her heirs including Sabitri who was already on record and in absence of any case of fraud or collusion she represented the estate of Namita and on such count the decree cannot be made in-executable, invalid or nullity. The said application was ultimately dismissed. Assailing the said order the petitioner filed the instant revisional application. Dr. Indrajit Mandal, learned Advocate appearing for the petitioner submits that the decree passed against a dead person is a nullity. Admittedly Sashibala Shaw, the defendant no. 2 being dead at the time of passing the decree and the decree being joint and inseparable the suit abetted as a whole and as such the decree is a nullity. Reliance is placed upon a judgment of the apex court in case of Kishun @ Ram Kishum (dead) through L.Rs. Vs. Bihari (D) by L.R reported in AIR 2005 SC 3799 that the decree passed against a dead person is a nullity. Reliance is also placed in case of Kanailal Manna & Ors. Vs. Bhabataran Santra & Ors. Reliance is placed upon a judgment of the apex court in case of Kishun @ Ram Kishum (dead) through L.Rs. Vs. Bihari (D) by L.R reported in AIR 2005 SC 3799 that the decree passed against a dead person is a nullity. Reliance is also placed in case of Kanailal Manna & Ors. Vs. Bhabataran Santra & Ors. Reported in AIR 1970 Cal 99 that where one of the plaintiff died even before the appeal filed against a joint decree and the court dismissing the appeal in ignorance of the death such a decree cannot be considered to be effective. Mr. Shanit Sanyal, learned Advocate appearing for the decree holder/opposite party no. 1 contends that original defendant no. 2 Sashibala in spite of service of writ of summons neither appeared nor contested the suit by filing written statement and as such in view of the provision contained under Order 22 rule 4(4) of the Code of Civil Procedure order cannot be said to be a nullity. He further contends that upon the death of Ranibala substitution was made by two daughters upon whom, the devolution of interest was made on the strength of deed of gift. The petitioner cannot have any right as legal heir of Ranibala as she divested her right, title and interest in favour of the said two daughters by executing the deed of gift. He further contends that an application for expunction was allowed under Order 22 Rule 4(4) of the Code of Civil Procedure on the death of the said Namita Shaw as she neither appeared nor contested the suit by filing written statement the decree so passed binds the estate. He succinctly argues that Sabitri being the other sister of Namita was already on record, she represented the estate of the said deceased and mere non-substitution of the petitioner does not invalidate the decree. Having considered the submissions of the respective counsels it is an admitted position that both the original defendant namely Ranibala Shaw and Sashibala Shaw died during the pendency of the suit. Upon the death of Ranibala her two daughters Sashibala and Namita were substituted on the strength of a deed of gift executed and registered during her lifetime by Ranibala. Such substitution is made on the basis of a devolution of interest and not on the strength of a general succession. Upon the death of Ranibala her two daughters Sashibala and Namita were substituted on the strength of a deed of gift executed and registered during her lifetime by Ranibala. Such substitution is made on the basis of a devolution of interest and not on the strength of a general succession. According to the petitioner the said deed of gift is the subject matter of challenge in another suit and as such I refrain myself from making any observation and/or comment on the validity, veracity and/or legality of the said deed of gift. The petitioner’s contention that even if he cannot be substituted on the death of Ranibala but upon the death of Namita her sister who died as spinster her share at least devolved upon him cannot be accepted in view of the provision contained under Order 22 Rule 4(4) of the Code of Civil Procedure which reads thus: “The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place." Thus the petitioner cannot say that he ought to have been substituted on the death of the said Namita. The above contention is also not tenable as one of the sister namely Sabitri was already there on record and the question of abatement of the suit on the death of the said Namita does not arise. It is not a case of the petitioner that Sabita acted detrimental to the interest of the petitioner or she acted fraudulently and in collusion with the decree holder. So far the above contention made by the petitioner I do not feel any cogent ground for interference with the impugned order but the last contention of the petitioner that the decree is a nullity having passed against one of the defendant who was dead, cannot be brushed aside. It is true that the decree passed against a dead person is a nullity. It is true that the decree passed against a dead person is a nullity. Had it been a case of a decree being passed against a sole deceased defendant there is no second thought but to hold that such a decree is a nullity but a decree passed against defendants of which one of the defendant is dead, does not necessarily be a nullity provided such a decree is joint and inseparable. Where the several defendants have been joined in one suit having distinct, separate and individual right and a decree passed is separable then on the death of one of the defendant the entire suit does not abate but abates against the deceased defendant only but the converse is not true. This was a suit for development of the property of the owners, admittedly one of the owner is dead. So the decree passed in such a suit cannot be made distinctly, separately and on the death of one of the defendant the suit abates as a whole. Thus the decree, which is joint and inseparable passed in a suit of which one of the defendant is dead is a nullity. Reference may be made in this context in case of Shahazada Bi & Ors. Vs. Halimabi (since deceased by L.Rs) reported in AIR 2004 SC 3942 and in case of S. Amarjit Singh Kalra (dead) by L.Rs & Ors. vs. Smt. Pramod Gupta (dead) by L.Rs. & Ors. reported in (2003) 3 SCC 272 . In view of the discussion I have no hesitation to hold that the ex parte decree dated 27th October 2005 in Title Suit No. 103 of 1994 is a nullity and have no binding effect. The order impugned is hereby set aside. The revisional application succeeds. However, there shall be no order as to costs.