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2015 DIGILAW 323 (GAU)

Santosh Kumar Das v. Mukti Rani Das

2015-03-18

HRISHIKESH ROY

body2015
ORDER (ORAL) Heard Mr. MH Ahmed, learned counsel appearing for the petitioner, who was originally the plaintiff No.3 in the T.S. No.5/1995. Also heard Mr. D. Chakrabarty, the learned counsel appearing for the respondent Nos.1—6, who are the successors of Late Shantimay Das, who was originally arrayed as the defendant No.1 in the case. 2. The suit was filed jointly by three brothers i.e. Sukumar Das, Sushanta Kumar Das and Santosh Kumar Das against the 4th brother Shantimay Das, for a declaration of their joint title and 1/4th share in the family property and also for equal partition of the suit land. 3. However the plaintiff No.1, Sukumar Das disassociated himself from his two brothers and took a different stand and therefore he was arrayed as defendant No.1 (Cha) in the suit. In the W.S. (Annexure-2) filed by the defendant No.1 (Cha), Sukumar Das stated that he sold away his share of the suit property to his elder brother Shantimay Das through the Registered Deed No.7203, dated 7.7.1983 and accordingly this defendant clarified that he has no claim on the suit property. 4. The suit came to be dismissed on 23.6.2004 by the learned Asstt. District Judge, Karimganj and the RFA No.118/2004 was then filed in the High Court by the plaintiff Santosh Kumar Das. It may be noted that the other plaintiff Sushanta Kumar Das did not challenge the suit dismissal order. Because of the change of the pecuniary jurisdiction, the case was transferred from the High Court to the Court of the learned District Judge, Karimganj, where the Appeal was renumbered as the T.A. No.19/2006. 5. Before the Appellate Court, the substituted legal heirs of the defendant Shantimay Das, through their application dated 8.2.2007 (Annexure-3), prayed for abatement of the Appeal against the defendant No.1 (Cha) Sukumar Das, who died on 15.12.2004 because the deceased’s daughter Sukanya Das was never substituted. It was stated in this application that the appellant Santosh Kumar Das attended the cremation ground on 15.12.2004 at Karimganj and was also present at the Shradha ceremony of Late Sukumar Das. But even then he didn’t substitute the daughter of the deceased and accordingly prayer was made for abatement of the Appeal in so far as the deceased Sukumar Das was concerned. 6. But even then he didn’t substitute the daughter of the deceased and accordingly prayer was made for abatement of the Appeal in so far as the deceased Sukumar Das was concerned. 6. Through the impugned order dated 4.8.2007 (Annexure-6), the learned District Judge considered the application of the respondents (defendants) and noted that despite being aware of the death of Sukumar Das on 15.12.2004, his legal heir was not substituted by the appellant. On this basis, the entire Appeal was declared to have abated through the impugned order dated 4.8.2007 (Annexure-6). 7. Assailing the legality of the order of abatement of the entire Appeal, Mr. MH Ahmed, learned counsel reads Order 22, Rule 1 of the C.P.C. to contend that the right to sue survives against the other respondents (defendants) and therefore on the death of one defendant Sukumar Das, the entire Appeal can’t abate in law. 8. On the other hand, Mr. D. Chakrabarty, the learned counsel appearing for the respondents (defendants) submits that in view of the stand of the deceased defendant Sukumar Das, nothing survives to be decided in the Appeal and therefore he argues that the District Court correctly held the entire Appeal to have abated. 9. In PPK Gopalan Nambiar vs. PPK Balakrishnan Nambiar reported in AIR 1995 SC 1852 , the Apex Court held that when the deceased had sold off their respective share in favour of other respondents, by operation of Order 22, Rule 10 of the C.P.C., the proceeding can be continued against the person upon whom the interest has been transferred. 10. In this case, the deceased Sukumar Das during his lifetime sold away his share in favour of co-defendant Late Shantimay Das. Therefore when the successors of the co-defendant are already arrayed in the Appellate proceeding, the right to sue survives against the transferee, under Order 22, Rule 1 of the C.P.C. 11. Because of the stand taken by the deceased defendant Sukumar Das in his W.S., the relief could be claimed only against the co-defendant (Shantimay Das) to whom, the defendant No.1 (Cha) Sukumar Das sold away his share of the family property. Because of the stand taken by the deceased defendant Sukumar Das in his W.S., the relief could be claimed only against the co-defendant (Shantimay Das) to whom, the defendant No.1 (Cha) Sukumar Das sold away his share of the family property. Therefore the right to sue survives against the co-defendant and consequently the Appellate Court shouldn’t have declared the Appeal to have abated for the death of Sukumar Das, who during his lifetime, transferred his right to the family property to Shantimay Das, whose successors are contesting the plaintiff’s Appeal. 12. When we look at the ratio of the decision in PPK Gopalan Nambiar (Supra), it is clear that the Appeal proceeding survives against the co-defendant. That apart in Kanhaiyalal vs. Rameshwar reported in (1983) 2 SCC 260 , the Apex Court held that presence of the deceased or his successor was unnecessary as no relief is claimed against this party. Therefore at best there can only be limited abatement of the pending proceeding. From this it is clear that the abatement of the entire Appeal couldn’t have been ordered since the right to sue survives against the co-defendant. Because of this reasoning I hold that the impugned decision suffers from a jurisdictional error and accordingly the same is quashed. The Appeal however stands abated against the deceased Sukumar Das, whose legal heirs were not substituted by the appellant. Under the circumstances the T.A. No.19/2006 will have to be decided on merit, amongst the surviving parties and it is ordered accordingly. 13. To facilitate the Appellate Court to proceed further, the learned counsel Mr. M.H. Ahmed and Mr. D. Chakrabarty for the contesting sides have assured that their respective client(s) will voluntarily appear before the Court on 27.4.2015 and therefore the District Court need not issue any notice for their appearance. The Registry should return back the LCRs alongwith a copy of this order to the Court of the learned District Judge, Karimganj.