Research › Search › Judgment

Madras High Court · body

2015 DIGILAW 2670 (MAD)

Subbulakshmi v. Sivanraj (died) Chellammal

2015-07-31

K.K.SASIDHARAN

body2015
ORDER The petitioners filed a suit for maintenance and for creating a charge over the suit property owned by the sole defendant. Pending suit, the defendant died. The application submitted by the petitioners to implead the third party purchaser was dismissed by the Trial Court. The order dated 17 September, 2013 in I.A.No.354 of 2012 is under challenge in this Civil Revision Petition. 2. Heard the learned counsel for petitioners and the learned counsel for respondent. 3. The first petitioner along with her child filed a suit in O.S.No.37 of 2012 against her husband. It was essentially a suit for maintenance. The first petitioner prayed for a composite decree to create a charge over the suit property. 4. The respondent/proposed second defendant purchased the property from the husband of the first petitioner. The purchase was made on the date on which the suit was laid. 5. The husband of the first petitioner died on 18 May, 2012. The petitioners immediately thereafter filed an application in I.A.No.354 of 2012 to implead the respondent herein as a party to the suit. The learned Trial Judge was of the view that nothing survives after the death of sole defendant. 6. The core question is whether a suit filed for creating a charge over the properties would abate on account of the death of sole defendant. 7. The suit in question was instituted not only for claiming maintenance. It was also a suit for creating a charge over the property owned by the defendant. 8. Order 22 deals with death of parties. Rule 1 of Order 22 provides that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Sub-Rule (2) of Rule 9 of Order 22 permits the plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff to apply for an order to set aside the abatement or dismissal. Rule 10 of Order 22 contains a procedure in case of assignment before final order in suit. This rule gives a discretion to the Court to permit the party to continue the suit against the person to or upon whom such interest has come or devolved. 9. It is true that the sole defendant died on 18 May, 2012. Rule 10 of Order 22 contains a procedure in case of assignment before final order in suit. This rule gives a discretion to the Court to permit the party to continue the suit against the person to or upon whom such interest has come or devolved. 9. It is true that the sole defendant died on 18 May, 2012. The suit filed for creating a charge over the property cannot be dismissed solely on the ground that the defendant is no more. The question as to whether it is possible to determine the maintenance amount after the death of the sole defendant against whom decree is sought is essentially an issue to be decided by the Trial Court on merits. The fact that the defendant died alone cannot be a reason to dismiss the suit filed for the purpose of creating a charge over the property owned by the defendant and transferred to a third party alleged to be for the purpose of avoiding attachment. 10. The Supreme Court in Custodian, Branches of BANCO National Ultramarino vs. Nalini Bai [ AIR 1989 SC 1589 ], observed that the term 'legal representative' would include even those who are not legal heirs to represent the estate of the deceased. The Supreme Court said: "4................................. "Legal representative" as defined in Civil Procedure Code which was admittedly applicable to the proceedings in the suit, 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. The definition is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the estate of the deceased person. It includes heirs as well as persons who represent the estate ever without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative". If there are many heirs, those in possession bona fide, without there being any fraud or collusion, are also entitled to represent the estate of the deceased................" 11. All such persons would be covered by the expression "legal representative". If there are many heirs, those in possession bona fide, without there being any fraud or collusion, are also entitled to represent the estate of the deceased................" 11. The learned Trial Judge dismissed the suit only on the ground of murder of the sole defendant and under the premise that the proposed party is neither a representative nor a necessary party to the proceedings. Though the said view might be correct in a regular suit claiming a particular relief against the sole defendant, but, however, the same would be different, in case the prayer is to create a charge on the property of the defendant. The Trial Court is expected to consider the material fact as to whether the transfer was made to defeat the decree to be passed by the Court. Since the Trial Court has not addressed the basic issues before dismissing the application, I am of the view that the matter requires fresh consideration. 12. In the result, the order dated 17 September, 2013 is set aside. The application in I.A.No.354 of 2012 is remitted to the learned Trial Judge for fresh consideration. The learned Trial Judge is directed to hear the matter afresh and pass orders on merits and as per law. 13. In the upshot, I allow the Civil Revision Petition. No costs. Consequently, the connected miscellaneous petition is closed.