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2012 DIGILAW 364 (MAD)

Subbammal v. D. V. Hariprasad

2012-01-24

K.SUGUNA

body2012
Judgment :- 1. C.R.P. No.4157 of 2011 is filed as against the order passed in I.A.No.222 of 2011 in O.S.No.169 of 1993 pending on the file of the District Munsif Court, Thiruvallur. 2. According to the petitioners, initially, O.S.No.169 of 1993 was filed by one Mr. Sivaraju. The said suit was dismissed for default on 31.7.2006 and the said Sivaraju filed I.A.No.389 of 2007 to condone the delay of 189 days in filing the restoration petition. During the pendency of the same, the sole plaintiff namely, Sivaraju died on 2.1.2009. Subsequently, I.A.No.270 of 2009 was filed by one D. Sowdamani in.I.A.No.389 of 2007 in O.S.No.169 of 1993 seeking to implead herself as a legal representative of the original plaintiff Sivaraju and as a second plaintiff in the said suit. Thereafter, another I.A. was filed in I.A.No.463 of 2009 by the said Saudamani under Order VI Rule 17 read with Section 151 CPC to amend the LR application filed in I.A. No.270 of2009 to add the names of the respondents herein as legal representatives. However, these I.A.s were withdrawn, according to the learned counsel for the petitioners, on 28.1.2011 and I.A.No.222 of 2011 was filed by the respondents herein on the same day under Order I Rule 10(2) read with Section 151 CPC to implead themselves as plaintiffs in the suit and the same was allowed. Hence, the above civil revision petition. 3. According to the learned counsel for the petitioners, the respondents want to implead themselves as legatees under the Will executed by the deceased plaintiff, Sivaraju. According to the learned counsel, Section 2(11) of the Civil Procedure Code defines a "legal representative" as hereunder: "(11) '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;" As per the above definition, the term "legal representative" means any person who represents the estate of the deceased and includes any person, who intermeddles with the estate of the deceased. According to the learned counsel for the petitioners, as far as Order I Rule 10(2) CPC is concerned, it reads as follows: "10. According to the learned counsel for the petitioners, as far as Order I Rule 10(2) CPC is concerned, it reads as follows: "10. (2) Court may strike out or add parties:-The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." But, according to the learned counsel for the petitioners, as far as the respondents herein are concerned, they claim to be the legal representatives of the deceased. Consequently I.A.No.222of 2011 seeking to implead themselves as parties to the suit should not have been filed by them under Order I Rule 10(2) C.P.C. In support of this contention, learned counsel for the petitioners relied on the following judgments: (i) AIR 1962 SC page 232 (Andhra Bank Limited versus R. Srinivasan and others). The relevant paragraph reads as hereunder: "18. Mr. Sastri concedes that a universal legatee would be a legal representative and he does not challenge that the person who intermeddles even with a part of the estate of the deceased is also a legal representative; but his argument is that a legatee who obtains only a part of the estate of the deceased under a Will cannot be said to represent his estate and is therefore not a legal representative under Section 2(11). We are not impressed by this argument. The whole object of widening the scope of the expression "legal representative" which the present definition is intended to achieve would be frustrated if it is held that legatees of different portions of the estate of a deceased do not fall within its purview. Logically it is difficult to understand how such a contention is consistent with the admitted position that persons who intermeddle with a part of the estate are legal representatives. Logically it is difficult to understand how such a contention is consistent with the admitted position that persons who intermeddle with a part of the estate are legal representatives. Besides, if such a construction is accepted it would be so easy for the estate of a deceased to escape its legitimate liability to pay the debts of a deceased debtor only if the debtor takes the precaution of making several legacies to different persons by his will. Besides, as a matter of construction, if different intermeddlers can represent the estate different legatees can likewise represent it. In regard to the intermeddlers they are said to represent the estate even though they are in possession of parcels of the estate of the deceased person" must include different legatees under the will. There is no justification for holding that the "estate" in the context must mean the whole of the estate. Therefore, we are satisfied that the plain construction of Section 2(11) is against Mr. Sastri's argument, apart from the fact that considerations of logic and common sense are equally against it". (ii) 1993 2 SCC page 507 (Chiranjilal Shrilal Goenka versus Jasjit Singh and others).The relevant paragraph reads as hereunder: "6. Having given our anxious consideration we will proceed further in deciding the scope and effect of the order passed by this Court. As seen the order of reference to the arbitrator relates "to settle dispute as to who would be the legal heirs to the estate of Shri C.S.Goenka". Section 2(11), of CPC Act 95 of 1908) defines 'legal representative' to mean 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. Order 22 Rule 3 says that if "one of two or more plaintiffs die and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiffs dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit". Mutatis mutandis by operation of Order 22 Rule 11 this rule applies to the appellants at the appeal stage. Similarly, Order 22 Rule 4 applies in the case of death of one of several defendants or of sole defendant and in case of a dispute under Rule 5 such a question shall be determined by the court. 7. Inheritance is in some sort a legal and fictitious continuation of the personality of the dead man, for the representation is in some sort identified by the law with him who he represents. The rights which the dead man can no longer own or exercise in propria persona and the obligations which he can no longer in propria persona fulfil, he owns, exercises and fulfils in the person of a living substitute. To this extent, and in this fiction, it may be said that legal personality of a man survives his natural personality; until his obligations being duly performed, and his property duly disposed of, his representation among the living is no longer called for. 8. In Black's Law Dictionary the meaning of the word 'legal representative is: The term in its broadest sense means one who stands in place of, and represents the interests of another. A person who oversees the legal affairs of another. Examples include the executors or administrator of an estate and a court appointed guardian of a minor or incompetent person. 9. Term 'legal representative' which is almost always held to be synonymous with term 'personal representative', means in accident cases, member of family entitled to benefits under wrongful death statute, unsatisfied claim and judgment fund. In Andhra Bank Ltd. Versus R. Srinivasan this Court considered the question whether the legatee under the will is the legal representative within the meaning of Section 2(11) of the Code. It was held that it is well known that the expression 'legal representative' had not been defined in the Code of 1882 and that led to a difference of judicial opinion as to its denotation. It was held that it is well known that the expression 'legal representative' had not been defined in the Code of 1882 and that led to a difference of judicial opinion as to its denotation. Considering the case-law developed in that behalf it was held that respondents 2 to 12, the legatees under the will of the estate are legal representatives of the deceased Raja Bahadur and so it follows that the estate of the deceased was sufficiently represented by them when the judgments were pronounced." (iii) 2008 8 SCC 521 =2009-3-L.W. 198 (Jaladi Suguna versus Satya Sai Central Trust and others).The relevant paragraphs read as follows: "11. Having heard the parties on the first point (relating to the procedure adopted by the High Court), we are of the view that this appeal can be disposed of with reference to the said preliminary point and it is not necessary to examine the other two points. 12. "Legal representative" according to it definition in Section 2(11) CPC, 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. Thus a legatee under a will, who intends to represent the estate of the deceased testator, being an intermeddler with the estate of the deceased, will be a legal representative". 4. On the other hand, according to the learned counsel for the respondents, as far as the issue in question is concerned, proper and necessary parties should be impleaded. Unless the respondents herein are impleaded as parties to the suit, the issue in the suit cannot be decided. Consequently, the order passed in I.A. No.222 of 2011 is perfectly valid. Further, according to the learned counsel, the effect of Order I Rule 10(2) CPC and Order XXII Rule 3(1) is one and the same. Besides, the learned counsel for the respondents, relied on the following judgments to contend that to avoid multiplicity of proceedings, an application can be made under Order I Rule 10(2) CPC. (i) 1999 2 SCC 577 =1999-3-L.W. 277 (Savitri Devi versus District Judge, Gorakhpur and others) wherein it was held as follows: "8. The fact set out by us in the earlier paragraphs are sufficient to show that there is a dispute as to whether the first defendant in the suit was a party to the order of injunction made by the Court on 18.8.1992. The fact set out by us in the earlier paragraphs are sufficient to show that there is a dispute as to whether the first defendant in the suit was a party to the order of injunction made by the Court on 18.8.1992. The proceedings for punishing him for contempt are admittedly pending. The plea raised by him that the first respondent had played a fraud not only against him but also on the Court would have to be decided before it can be said that the sales effected by the first defendant were in violation of the order of the Court. The plea raised by Respondents 3 to 5 that they were bona fide transferees for value in good faith may have to be decided before it can be held that the sales in their favour created no interest in the property. The aforesaid questions have to be decided by the Court either in the application filed by Respondents 3 to 5 for impleadment in the suit. If the application for impleadment is thrown out without a decision on the aforesaid questions, Respondents 3 to 5 will certainly come up with a separate suit to enforce their alleged rights which means a multiplicity of proceedings. In such circumstances, it cannot be said that Respondents 3 to 5 are neither necessary nor proper parties to the suit". (ii) 2005 11 SCC 403 =2005-3-L.W. 728 (Amit Kumar Shaw and another versus Farida Khatoon and another) wherein the relevant paragraph are as hereunder: "9. The object of Order 1 Rule 10 is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercise by the court at any stage of the proceedings. Under this rule, a person may be added as a party to a suit in the following two cases: (1) when he ought to have been joined as plaintiff or defendant, and is not joined so, or (2) when, without his presence, the questions in the suit cannot be completely decided. 10. The power of a court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. 10. The power of a court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will necessarily include an enforceable legal right." Apart from this, according to the learned counsel, if the respondents herein are not impleaded as plaintiffs in the said suit, the issue cannot be decided. Consequently, they are necessary parties and without impleading the necessary parties, the issue cannot be adjudicated. Based on these contentions, learned counsel for the respondents sought the dismissal of the civil revision petition. 5. I have considered the above submissions of the respective learned counsel. 6. According to the learned counsel for the petitioners, I.A.No.222 of 2011 was filed under Order I Rule 10(2) read with Section 151 CPC by the respondents herein. According to the learned counsel, when the respondents filed I.A.No.222 of 2011, as legatees under a Will, as per Section 2(11) CPC, they should have filed an application under Order XXII Rule 3 CPC. As per Order XXII Rule 3 CPC, when one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. The respondents herein claim their right as legatees under a Will. As already stated, the term "legal representative" includes any person, who intermeddles with the estate of the deceased. Now, the respondents herein want to implead themselves as legal representatives. As rightly pointed out by the learned counsel for the petitioners, they ought to have filed an application under Order XXII Rule 3 CPC. As far as the stand of the learned counsel for the respondents that to decide the issue in the suit, the necessary parties have to be impleaded, to avoid multiplicity of the proceedings is concerned, it is not the stand of the revision petitioners that the respondents should not have been impleaded as parties to the suit. As far as the stand of the learned counsel for the respondents that to decide the issue in the suit, the necessary parties have to be impleaded, to avoid multiplicity of the proceedings is concerned, it is not the stand of the revision petitioners that the respondents should not have been impleaded as parties to the suit. According to the petitioners, the impleading application should have been filed under Order XXII Rule 3 CPC. When specific provisions have been made to implead legal representatives, under certain circumstances and when the case of the respondents comes within the scope of Order XXII Rule 3 CPC, filing of petition under Order I Rule 10(2), CPC cannot be accepted. Besides even the judgments relied on by the learned counsel for the petitioners, the relevant portions of which have been extracted above, also indicate the same. In addition to this, as far as the said of the learned counsel for the petitioners that the respondents had initially filed I.A.Nos.270 and 463 of 2009 and the same were withdrawn on 28.1.2011 and on the same day, I.A.No.222 of 2011 was filed is concerned, if that is so, if a petition under Order XXII Rule 3 CPC is filed by the respondents, certainly, with regard to limitation, the petitioners can make the relevant plea before the Trial Court. As far as the judgments relied on by the learned counsel for the respondents are concerned, that is, to avoid multiplicity of proceedings, Court may add a party as a necessary party under Order I Rule 10(2) CPC is concerned, as rightly pointed out by the learned counsel for the petitioners, under Order XXII Rule 3 CPC, the words used therein are when one of two or more plaintiffs dies and he right to suit does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Under such circumstances, the argument of the learned counsel for the petitioners has to be accepted. Consequently, the order passed by the Trial Court in I.A.No.222 of 2011 in O.S.No.169 of 1993 is set aside. Under such circumstances, the argument of the learned counsel for the petitioners has to be accepted. Consequently, the order passed by the Trial Court in I.A.No.222 of 2011 in O.S.No.169 of 1993 is set aside. However, the respondents herein set at liberty to file an application before the Trial Court under the appropriate provision and the petitioners herein are also at liberty to raise their plea/objection for the same. The civil revision petition is disposed of accordingly. No costs. Connected M.P. is closed. 7. C.R.P.No.4158 of 2011 is filed as against the order passed in I.A.No.389 of 2007 in O.S.No.169 of 1993 dated 16.3.2011 on the file of District Munsif Court, Thiruvallur. According to both the sides, in view of the orders passed in C.R.P.No.4157 of 2011 today, the order passed in I.A.No.389 of 2007 dated 16.3.2011 has to be set aside. Accordingly, the said order is set aside and here also, the respondents are liberty to take appropriate steps before the Trial Court. The civil revision petition is disposed of accordingly. No costs. Connected M.P. is closed.