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2024 DIGILAW 2501 (MAD)

Zubaitha Ummal v. Sara Ummal

2024-10-29

V.LAKSHMINARAYANAN

body2024
ORDER : V. LAKSHMINARAYANAN, J. This Civil Revision Petition arises against the order passed by the learned District Judge, Karaikal, in I.A.No.66 of 2018 in I.A.No.178 of 2017 in O.S.No. 21 of 1993, dated 18.12.2019. 2. O.S.No.21 of 1993 is a suit for partition and separate possession.The said suit came to be dismissed by the learned Trial Judge, in and by way of a judgment and decree, dated 05.08.1997. 3. Aggrieved by the same, an appeal was preferred to this Court in A.S.No.76 of 1999. In and by way of a judgment dated 26.11.2013, the appeal was allowed and the judgment and decree of the Trial Court in O.S.No.21 of 1993 was set aside. This Court declared that the appellant / 1 st plaintiff and respondents 8 to 15, who were plaintiffs 2 to 9, are entitled to partition of 42/120 share in the plaint 'A' & 'B' schedule mentioned properties. As the appeal had been allowed, liberty was granted to the appellant / 1 st plaintiff and plaintiff Nos.2 to 9 / respondents 8 to 15 in the appeal, to seek for appointment of an Advocate Commissioner and for passing of a final decree. 4. After the appeal came to be allowed, the 4 th respondent in the appeal, one Hadja Fakrudeen, filed an application in C.M.P.No.158 of 2015. He sought to set aside the judgment and decree dated 26.11.2013 in A.S.No.76 of 1999. He pleaded that as his counsel was not available in the Court, on the day when the appeal was taken up for hearing, the appeal had been allowed. Therefore, he sought for restoration of the appeal and for disposal of the same on merits. 5. Pending the application to set aside the judgment dated 26.11.2013, the 1 st appellant had passed away. Therefore, the 4 th respondent took out applications in C.M.P.Nos.2535 to 2537 of 2016 in C.M.P.No.158 of 2015 to bring on record the legal representatives of the deceased 1 st appellant. 6. Considering the plea of the 4 th respondent, the appeal came to be restored. The legal heir of the deceased sole appellant, Abdul Kader Maricar, namely, one Zubaitha Ammal, was brought on record on 25.01.2017. Thereafter, the appeal was heard all over again. Yet again, this Court set aside the judgment and decree of the learned Trial Judge and the suit for partition was decreed. The appeal was allowed on 05.05.2017. The legal heir of the deceased sole appellant, Abdul Kader Maricar, namely, one Zubaitha Ammal, was brought on record on 25.01.2017. Thereafter, the appeal was heard all over again. Yet again, this Court set aside the judgment and decree of the learned Trial Judge and the suit for partition was decreed. The appeal was allowed on 05.05.2017. 7. Thereafter, Zubaitha Ammal filed an application in I.A.No.178 of 2017, for passing of final decree. Summons were sent and served on most of the respondents in that application. A counter was also filed by the contesting respondent, Mr.Hadja Fakrudeen. At that stage, it came to light on 09.11.2017, that the respondents 3, 5, 6 & 8 to 10 had passed away. Therefore, Zubaitha Ammal filed an application in I.A.No.66 of 2018 to bring on record the legal representatives of the deceased respondents 3, 5, 6 & 8 to 10. Along with the said application, death certificates of those respondents had also been enclosed. 8. The learned District Judge ordered notice to the proposed parties as well as to the respondents in that application. The respondents 11 to 15 and 19 had no objection to the petition being allowed. Respondents 4 & 32 alone filed a counter. The other respondents did not file a counter and therefore, the learned District Judge, forfeited their opportunity to file a counter. He took up the petitions for enquiry. The learned Judge came to the following conclusion: (i) In terms of Order XXII Rule 10A of the Code of Civil Procedure, 1908, a counsel has a duty to report the death of his / her clients and since the petitioner did not take any steps to get the details, she is at fault. (ii) As per Article 120 of the Limitation Act, the application to bring on record the legal representatives should have been filed within 90 days from the date of death. Since the date of death has not been disclosed, the application is barred by time. Consequently, he dismissed the said application. 9. Aggrieved by the same, the civil revision petitioner has come up before this Court. 10. Notice was ordered in this revision. Even in this proceeding, it is only the 4 th respondent, who has been contesting the same. The other respondents, though served, did not enter appearance. Consequently, he dismissed the said application. 9. Aggrieved by the same, the civil revision petitioner has come up before this Court. 10. Notice was ordered in this revision. Even in this proceeding, it is only the 4 th respondent, who has been contesting the same. The other respondents, though served, did not enter appearance. Therefore, the civil revision petitioner filed an application to dispense with the notice on respondents 5 to 20 and 24 to 27. This Civil Miscellaneous Petition was numbered as C.M.P.No.23495 of 2024. It was ordered on 28.10.2024. With the house keeping work having been completed, I took up the main revision for disposal. 11. I heard Mr.R.Vasudevan for the Civil Revision Petitioner and Mr.S.Mugesh for the contesting 4 th respondent. 12. They reiterated their contentions before the Trial Court. 13. At the outset, I have to point out that the learned Additional District Judge, Puducherry at Karikal, had committed a serious error in not referring to the death certificates that had been filed along with I.A.No.66 of 2018. When the party has enclosed the death certificates and burial ground certificate, all that the learned Judge had to do, was to refer the said documents, in order to come to a conclusion on the date of death. However, the learned judge had dismissed the petition on the ground that order XXII Rule 10A of the Code of Civil Procedure, 1908, had not been followed. 14. Resort to Order XXII Rule 10A, would arise, when the counsel representing the parties comes to know the death of his / her client. Order XXII Rule 10A imposes the duty on such counsel, to inform the Court about the death of a client, so as to enable the Court, to direct the party who seeks to obtain the decree, to take steps, to bring on record the legal representatives. The failure on the part of the counsel, who represented the parties, cannot be shifted onto the shoulders of the petitioner. 15. Apart from this fact, the learned Judge had failed to appreciate that it was the 4 th respondent who had throughout contested the proceedings. It was he, who placed reliance upon a “WILL”, to get the suit defeated. He succeeded before the Trial Judge. However, not once, but on two occasions, his plea based on the “WILL” stood rejected by this Court. It was he, who placed reliance upon a “WILL”, to get the suit defeated. He succeeded before the Trial Judge. However, not once, but on two occasions, his plea based on the “WILL” stood rejected by this Court. Furthermore, the defendants 3, 5 & 6, though served in the appeal, did not engage any counsel. They are not strangers to the 4 th defendant. Defendants 3, 5 & 6 are the siblings of the 4 th defendant. 16. The 4 th defendant, at no point, from the time of death of the said respondents until the Bailiff made an endorsement regarding their death, informed the Court about their death. Therefore, the first time when the plaintiff came to be aware of the deaths, was when, the Bailiff's report was filed before the Court on 09.11.2017. 17. When a legal heir is already on record, the question of abatement does not arise. In this case, all the parties belong to Islamic Persuasion. Under Islamic Law, a surviving brother or sister is entitled to a share in the estate of his / her deceased sibling. Therefore, the contesting 4 th respondent substantially represented the estate of deceased defendants. 18. A legal representative, under Section 2(11) of the Code of Civil Procedure, 1908, not only includes a legal heir, but also any person who represents the estate of a deceased. Unless and until, the 4 th respondent or the other legal representatives, are able to show that there was fraud or collusion between the plaintiff and the legal representative already on record, the decree would be binding on the true legal representative also. See, Chatrubujadoss Kushaldoss & sons Vs. Minor. Raja Manicka Mudali and another, (1930) 32 L.W. 862 19. Apart from that, the learned Judge should have taken note of the fact that since the father of the civil revision petitioner had instituted a suit for partition, she had pleaded that the parties were not even in talking terms. Be that as it may, since the 4 th respondent had represented the estate of the deceased parties and as the legal representative themselves had no objection to come on record, the Trial Court erred in dismissing the petition. 20. I should point out here that, the issue, whether a final decree application can be dismissed as abated, had been considered by a Full Bench of this Court in Perumal Pillai Vs. 20. I should point out here that, the issue, whether a final decree application can be dismissed as abated, had been considered by a Full Bench of this Court in Perumal Pillai Vs. Perumal Chetty and another, (1928) 28 L.W. 161 . The Full Bench held that if a party dies after the preliminary decree but before the final decree is filed, there is no question of abatement. The Full Bench followed a judgment of the Privy Council in Lachmi Narain Marwari Vs. Balmakund Marwari, (1924) 20 L.W 491 (PC) . Lord Phillimore, while delivering the judgment, in that case, held as follows: “The parties have, on the making of the decree, acquired rights or incurred liabilities which are fixed, unless or until the decree is varied or set aside. After a decree, any party can apply to have it enforced.” 21. This makes it clear, that once the rights of parties have been crystallized by virtue of passing of a preliminary decree, the Trial Court cannot dismiss the suit as abated. This is because, under Order XXII, a legal representative is brought on record when the “right to sue” continues. By virtue of the decree, since, the rights and liabilities have already been fixed, the question of right to sue surviving does not arise. The right to sue merges with the decree. When a preliminary decree is passed, it would be inappropriate to hold that the right to sue survives. The plaintiff had established his right to the property and it had found acceptance at the hands of this Court. An application for passing of a final decree certainly does not relate to the original “right to sue”. 22. This aspect had been considered by the Bombay High Court in Saiyad Dawarali Jafarali Vs. Bai Jadi and others, [1940] ILR Bom 689 (DB) . Sir.JOHN BEAUMONT, CJ, speaking for himself and Mr.JUSTICE SEN, held that Order XX Rule 4 does not apply to a case in which a preliminary decree has already been passed. While coming to the said conclusion, the Division Bench followed the view of this Court in Perumal Pillai Vs. Perumal Chetty and another , referred to above. Respectfully following the views in these verdicts, I come to a conclusion, once a preliminary decree is passed, rights having crystallized on parties, a proceeding cannot abate. While coming to the said conclusion, the Division Bench followed the view of this Court in Perumal Pillai Vs. Perumal Chetty and another , referred to above. Respectfully following the views in these verdicts, I come to a conclusion, once a preliminary decree is passed, rights having crystallized on parties, a proceeding cannot abate. If that be the situation, the learned Trial Judge committed a serious error in applying Article 120 of the Limitation Act. Hence, the order of the learned Trial Judge necessarily has to be interfered with. 23. Accordingly, the order of the learned District Judge, Karaikal, in I.A.No.66 of 2017 in I.A.No.178 of 2017 in O.S.No.21 of 1993, dated 18.12.2019, is set aside. I.A.No.66 of 2017 will stand allowed. 24. The learned Trial Judge is requested to take note of the fact that the suit had been initiated 31 years ago and still the parties are knocking the doors of the Court for justice. The learned Judge shall receive the amended petition copy from the civil revision petitioner within a period of two (2) weeks from the date of receipt of a copy of this order and shall proceed with all expedition that the proceedings require and dispose of the final decree proceedings on or before 30.04.2025. He shall submit a report to this Court regarding the compliance of the same. The learned Judge is given absolute discretion to reject any request for unnecessary adjournment. The final decree proceeding should proceed on week to week and should reach a conclusion within the date prescribed by this Court. 25. With the aforesaid directions, this Civil Revision Petition is allowed with a cost of Rs.10,000/- (Rupees Ten Thousand Only), payable by the 4 th respondent to the civil revision petitioner. Consequently,the connected Miscellaneous Petition is closed. Post this case 'for reporting compliance' on 30.04.2025.