Ch. Srinivasarao vs Ch. Narasimharao

Chennakesav Reddy

These two revision petitions arise out of proceedings in execution in O.S. No. 338 of 1972 on the file of the Court of the Subordinate Judge, Vijayawada. Chevaturi Rajyalakshmi, the plaintiff filed this suit against her sons Ch. Narayana Rao and Ch. Srinivasa Rao, defendants 1 and 2 respectively, for recovery of possession of the plaint Schedule property after ejecting the defendants therefrom and for past and future mesne profits. The suit was resisted by the defendants. The learned Subordinate Judge decreed the suit for eviction and further directed separate enquiry for ascertaining the mesne profits under Order XX Rule 12 C.P.C. The plaintiff filed an application I.A. No. 650 of 1976 on 4-3-1976 for ascertainment of mesne profits and for a final decree for the amounts found due. Both the defendants preferred appeal to the High Court against the judgment and decree of the trial court and obtained stay of all further proceedings. Prior to the institution of the suit, the plaintiff had executed a registered settlement deed Ex. A-2 dated 21-8-1966 settling the plaint schedule property on her elder son Chevuturi Narasimha Rao and reserving life est ate in her. Later, on 29-10-1976 the plaintiff executed a registered ralinquisment deed Ex. A-3 relinquishing her life interest in the plaint schedule property in favour of Narsimha Rao after receiving consideration from him. The plaintiff died on 31-12-1976, The High Court dismissed the appeals filed by the defendants on 22-3-1977 as not pressed by the defendants. Claiming to be the absolute owner of the plaint schedule property by virtue of the relinquishment deed Ex. A3 Narasimha Rao filed E.P. No. 78 of 1977 on 26-3-1977 to substitute him in the place of the deceased--plaintiff in the execution proceedings and to order delivery of property to him. The defendants filed I.A. 652 of 1977 stating that the settlement deed Ex. A-2 and the relinquishment deed Ex. A-3 were not binding, that the decree had become infructuous, and that Narasimha Rao had no right to continue the execution proceedings. Then Narasimha Rao filed I.A. No. 2159 of 1977 in E.P. No. 78 of 1977 u/s 146 C.P.C. to add him as the Legal Representative of the deceased plaintiff and to permit him to continue the final decree proceedings in I.A. No. 650 of 1976. By a common order dated 5-6-1978 the learned Subordinate Judge allowed I.A. No. 2159 of 1977 and permitted Narasimha Rao to continue the proceedings in E.P. No. 78 of 1977 as the Legal Representative of the deceased decree-holder. The second defendant has preferred these revision petitions against the common order in I.A. No. 2159 of 1977 and E.P. No. 78 of 1976. Ch. Narasimha Rao, the petitioner in the application is the sole respondent herein.

The first question that arises is whether the respondent Narasimha Rao has the right to execute the decree obtained by the deceased decree-holder, Rajyalakshmamma. It is contended by the learned counsel for the petitioner that the respondent was not a party to the suit, nor is he a legal representative, that the cause of action was personal to the plaintiff and disappeared on her death and that the respondent could only file a suit and establish his title. According to the learned counsel the right to sue abated on the death of the plaintiff and the application filed by the respondent was not maintainable either u/s 145 C.P.C. or under Order 21 Rule 16 or Order 22 Rule 10 C.P.C. On the other hand, the learned counsel for the responded submits that the petitioner represents the estate by virtue of the terms of the will Ex. A-2) that the suit was filed in a representative capacity on behalf of the plaintiff and the respondent the holder of the vested remainder. In any case, it is urged that the respondent is the legal representatives of the plaintiff within the meaning of Section 2 (11) C.P.C.

The Provisions relevant for our purpose viz., Section 2 (11), Section 146, Order 21 Rule 16 and Order 22 Rules 1 and 10 C.P.C. may be read,

Section 2 (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.

Section 146: -- Proceedings by or against representatives:

Save as otherwise provided by this Code or by any law for the time being in force, where any proceedings may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against any person claiming under him.

Order XXI Rule 16.--Application for execution by transferee of decree.

Where a decree or, a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it: and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder.

Order XXII Rule 1:--No Abatement by party''s death. If right to sue survives:

The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.

Order XXII Rule 10:--Procedure in case of assignment before final order in suit:

(1) In other cases of an assignment creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved:

(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).

The respondent sought to execute the decree under Order 21 Rule 16 C.P.C. as an assignee decree-holder. When it was opposed, he filed an application to add him as Legal Representative of the deceased decree-holder and permit him to continue the final decree proceedings.

The foremost and first contention of the learned counsel for the petitioner is that the right to sue lapsed on the death of the deceased-plaintiff who was life-interest holder and did not survive and therefore the suit itself abated. According to him, the cause of action was entirely personal to the plaintiff Rajyalakshmamma. In support of his submission he placed reliance on a decision of the Madras High Court in Vanamamali Thevar vs. Narayana Pillai 1968 II MLJ 622. In that case, the plaintiff, Sivagami Ammal who claimed the suit properties settled on herself and her husband for their life time to be enjoyed jointly sued the alienee--defendants for recovery of possession impleading her son also as a defendant. The trial Court dismissed the suit. The plaintiff preferred the appeal and died during the pendency of the appeal. In the appeal her son who was second-respondent was transferred as the appellant as the legal representative of the plaintiff. His legitimacy was questioned in the suit but the issue was left open by all the parties but no objection was raised to his being impleaded as the legal representative of the deceased plaintiff-appellant. The appellate Court allowed the appeal and granted a decree for possession and directed the ascertainment of mesne profits separately. The alienee-defendants preferred a second appeal. The High Court held that the plaintiff Sivagami Ammal had only a life interest in the suit properties under the deed of settlement and therefore, there could only be a declaration that the plaintiff had title and right to the possession of the suit properties during her lifetime. The decree of the appellate Court granting possession and providing for ascertainment of future mesne profits was annulled. The High Court on a consideration of the several decisions held that the action abated on the death of Sivagami Ammal and there could be only a declaration that the plaintiff, had title and right to the possession of the suit properties for her life under the deed of settlement. Accordingly, the decree of the trial Court was set aside.

The Calcutta High Court in Institute of Institute of Chartered Accountants Vs. Deba Brata Basu and Another, held that in a suit where the cause of action was entirely personal to the plaintiff, the right to sue completely disappeared on his death and devolved on none and his widow could not be substituted in his place. That was a case where the plaintiff Deba Brata Basu, a Chartered Accountant brought a suit against the Institute of Chartered Accountants for a declaration that the agreement between him and the Articled Clerk was valid and for other incidental and miner relief. The suit was decreed. The defendant preferred an appeal, but during the pendency of the appeal, the plaintiff died. The High Court held that the suit was on a cause of action entirely personal to Deba Brata Basu and Deba Brata Basu an having died the right to sue has completely disappeared and has not devolved on any body".

In V.V. Rama Rao and Others Vs. Bhavan Narayan Rao, the Orissa High Court held that the right to sue based on the life interest created by will lapsed along with the life interest of the plaintiff and did not survive after plaintiff''s death and therefore the suit abated.

Now, turning to the texts, Hindu Law by Mulla, Fourteenth Edition contains the following observation at page 208:

Widow''s estate: A widow or other limited heir is not a tenant-for-life, but is owner of the property inherited by her, subject to certain restrictions on alienation, and subject to its devolving upon the next heir of the last full owner upon her death. The whole estate is for the time vested in her, and she represents it completely. As stated in a Privy Council case, ''her right is of the nature of a right of property; her position is that of owner, her powers in that character are, however, limited; but.........so long as she is alive no one has any vested interest in the succession "The principles relating to the nature of a widow''s estate were recently reiterated by the Supreme Court".

Mulla in Code of Civil Procedure, Thirteenth Edition, at page 81 observed:

A remainder man does not claim under the life-tenant and a remainderman under a will is not bound by a decree against a widow who has a life estate under the will.

The difference between widow''s estate and life estate is pointed out with clarity and precision in V.V. Rama Rao and Others Vs. Bhavan Narayan Rao, The learned Judges observed at paragraph 15:--

.......the conception of limited owner of widow''s estate under the Hindu Law is different from a life interest holder. A Hindu widow, daughter or mother, inheriting the property of her husband or father or son, as the case may be, has absolute light of disposal of the property for legal necessity while a mere life estate holder under a will has not.

On the other hand the learned counsel for the respondent contends that the suit as well as the appeal were filed in a representative capacity that the plaintiff represented the entire estate and there fore, the respondent is entitled to continue the execution proceedings as the legal representative of the deceased plaintiff. The learned counsel placed strong reliance on the decision of the Madras High Court in R.D. Deshpande Vs. R. Srinivasan and Others, That was a case in which a suit for possession was based on a will under which the widow testator claimed certain rights. Under the will the widow was entitled to possession during her lifetime and after her death, the testator''s sister''s son was entitled to possession. The widow died pending the suit and the sister''s son of the testator who was entitled to the vested remainder applied under Order XXII Rule 3 C.P.C. as legal representative of the deceased widow. It was held that the suit by the widow was filed in a representative capacity, that the right to sue had survived and that therefore he was entitled to be brought on record under Order XXII Rule 3 C.P.C. The learned Judge observed:

In order therefore to entitle a person to bring himself on record as the legal representative or as a co-plaintiff to continue the suit, what he has primarily to establish is that the right to sue has survived to him, even though he may not be strictly the legal representative in the sense that he represents the estate of the deceased person. In this case, however, as the suit has been held to be instituted in a representative character as one not alone on behalf of the widow but even on behalf of the remainderman the respondent, and the right to sue has also survived to the respondent, the order of the learned District Judge bringing the respondent on record under the provisions of Order 22 Rule 3 C.P.C. is correct.

But, in this case, the suit was not filed in a representative character. The suit was filed by Rajyalakshmamma alone for possession. She had only a life interest in the property. The suit was decreed. During the pendency of the execution proceedings, the respondent sought to come on record as the legal representative of the decree-holder and continue the execution proceedings. This decision is not applicable to the facts of this case. I am therefore clearly of the opinion that the cause of action in this case was entirely personal to Rajyalakshmamma who had only a life interest and the right to sue disappeared on her death and could devolve on none. The learned counsel also referred me to the decision of the Privy Council in Venkata Narayan Pillai vs. Subbamma AIR 1915 P.C. 124. This case was noticed and distinguished by the Orissa High Court in the above cited case.

It was then contended for the respondent that he represents the estate of the deceased Plaintiff by virtue of Exs. A-2 and A-3 and so is legal representative of the deceased plaintiff falling within the definition of Section 2 (11) C.P.C. and therefore entitled to continue the execution proceedings. The learned counsel referred me to the decision of the Supreme Court in The Andhra Bank Ltd. Vs. R. Srinivasan and Others, where in the Supreme Court stated dealing with the scope of Section 2 (11):--

"That the clause" a person who in law represents the estate of a 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".

Support was also Bought from the decision of the Allahabad High Court in Gulzari Lal and Others Vs. Sm. Sarju Bai and Another, wherein the learned judges held that the word ''Legal Representative" must be interpreted in the. Wider sense to include a person whose rights would be affected or might be affected if he survived the widow unless be was allowed to continue the appeal. Some other decisions of other High Courts also cited. But those decisions are not relevant, because the right to sue has been held to be personal to the deceased plaintiff. It was also contended that the respondent being the sole heir to the property under Ex. A-2 is entitled to continue the execution proceedings by operation of law under Order 22 Rule 10 C.P.C. But there is no question of any devolution of interest by operation of law. This is not a case which attracts Order 22 Rule 10 C.P.C. Devolution of interest must be after the institution of the suit. The deceased decree-holder was only a life estate holder. There can be no question of her interest devolving on any one after her death since the suit was not filed in a representative capacity. As already held, the cause of action was personal to the plaintiff and the right to sue disappeared on her death. Therefore, the respondent could not continue the execution proceedings after the death of the plaintiff.

In the result, the civil revision petitions are allowed with costs: the order of the Court below is set aside and the E.P. shall stand dismissed. These petitions having been set down for being mentioned on this Wednesday the 8th day of August 1979 on the letter of the advocate for the respondent dated 16-7-1979 and upon bearing the arguments of Mr. P. Kodanda Ramayya, Advocate for the petitioner in both the petitions and of Mr. M. Jaganandha Rao, Advocate for the respondent in both the petitions, the court made the following:--

This judgment will not however preclude the respondent to file a fresh Execution Petition for the recovery of mesne profits, that had accrued till the date of the death of the deceased, Chevaturi Rajyalakshmi, subject to the condition that it is for the respondent to establish the truth and validity of the relinquishment deed 29-10-1976 executed in favour of the respondent.