Lilo Sonar vs Jhagru Sahu

On the 1st of February 1924, the petitioner applied for substitution in place of the deceased respondent. No. 1, Jhagru Sahu. This application was made more than ninety days after the death of Jhagru Sahu. The proposed legal representatives of Jhagru Sahu have entered appearance and oppose the application for substitution. Their case is that the appeal has already abated, no application for substitution having been made within time. The learned Vakil on behalf of the appellant petitioner submits that no substitution was necessary and the abatement did not take place, inasmuch as one of the legal representatives, Doman, was already on the record as respondent No. 2, and the family being a joint Mitakshara family he was competent to represent all the other heirs of Jhagru Sahu. It is said that so long as Doman is on the record the appeal could not abate, notwithstanding that all the heirs of Jhagru Sahu were not on the record.

This contention is based upon the legal notion of joint Mitakshara family, but "legal representative" as defined in Clause (11) of Section 2 of (the CPC includes the person on whom the estate devolves on the death of the party suing or sued in a representative character. Therefore even if Jhagru Sahu and Doman were members of a joint Mitakshara family, their legal representatives will be the heirs on whom the estate would devolve upon their death by-survivorship. In the present case upon the death of Jhagru Sahu, his legal representatives would be the surviving members of the family, the opposite party, Order 22 requires, legal representatives of parties to be brought on the record in the case of the death of any one of them irrespective of whether the deceased was joint or separate from the other members of the family.

Assuming for the sake of argument that the said heirs, who are now proposed to be substituted, are the legal representatives of Jhagru Sahu, they must be brought on the record in accordance with law and the procedure set forth in Order 22. The procedure in a case of this kind is prescribed by Rule 4 of the said Order which requires that, upon the death of a defendant, and when the right to sue does not survive against the surviving defendant, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party. By Rule 11 of the said Order the word "defendant" includes "respondent."

Therefore, the respondent in the present case being dead, the substitution could only be made upon an application made in that behalf by the appellant or by the legal representatives of the deceased The fact that Doman, one of the legal representatives of the deceased, is already on the record does not relieve the appellant or the other heirs of Jhagru Sahu from making an application for substitution as legal representatives of Jhagru Sahu in terms of Rule 4 of Order 22. Doman was respondent in his own capacity. Now, if the appellant wants him to be placed on the record as legal representative of Jhagru Sahu, a proper application should be made. Therefore, the appeal did abate before the application for substitution was filed.

Reliance has been placed upon a number of cases [Bhikaji Ramchandra v. Purushotam (1886) 10 Bom. 220 , Adisupalli Venkata Row, Executor to the Estate of the deceased Ramanujammal Vs. Marikuruthu Ammal and Another, and Mt. Sughar Kunwar v. Babu sitapat-Ram (1917) 20 O.C. 67] in support of the Contention that the presence of Doman on the record as legal representative would prevent the appeal from abating. These cases do not go so far They only lay down that where there are several representatives, if an application is made within time for bringing any one of them oh the record, the appeal does not abate, and that the other legal representatives may be made parties to the case even after the expiry of the time fixed for substitution.

It is notable that in all those cases an application was made as required by Rule 4 of Order 22 as regards one of the legal representatives within time. The rule does not require that all the legal representatives should be on the record, and if one of them is properly brought on the record as legal representative there will be no abatement. The aforesaid cases are not on all fours with the present one;

The learned Vakil on behalf of the appellants then urges that upon the grounds stated in the petition the abatement should be set aside. On this score he seems to stand on a firmer footing, It appears that Jhagru Sahu died in September last, and the appellants came to know of his death in December, and that after certain correspondence with the learned Vakil who appears for them in the present case the application was made within time from the date of knowledge of the death of the deceased.

The allegations made in the application are not at all controverted by any counter-affidavit, and regard being had to the fact that the appellant lives at a distance from the residence of the deceased Jhagru Sahu, it is possible that, as alleged by him, he did not come to know of the death of the deceased until December. We, therefore, accept the reasons given in the petition for not making the application for substitution in time, and accordingly we set aside the abatement and direct that the substitution as prayed for be made. The opposite party has entered appearance and in this case he is entitled to costs.