M. Venugopal vs Marappa and Others

S.M. Ali Mohamed, J.—This civil revision petition is directed against the decree and order of the District Munsif, Hosur, made in

I.A.No.342 of 1994 in O.S.No.60 of 1976, dismissing the application of the petitioner to implead one of the legal representatives of the first

defendant Pedda Marappa, under Order 22, Rule 4 (5) (b), C.P.C. read with Section 5 of the Limitation Act, 1963. The petitioner herein is the

plaintiff and eldest son of Chinna Marappan. He filed a suit for partition and separate possession of the suit schedule property. The first defendant

is the purchaser of some of the suit schedule mentioned properties. The plaintiff has alleged that his father Chinna Marappa has alienated joint

family property when the plaintiff was a minor. In the suit, the plaintiff had already impleaded other brothers, sisters and also first defendant. It is

stated that the first defendant Bedda Marappa expired in the year 1987 and left behind a son and a daughter. The son Marappa was already as

second defendant in the suit. The plaintiff made an application to bring on record the daughter of Bedda Marappa as one of the legal representative

under Order 22, Rules 4(5) read with - Section 5 of the Limitation Act, 1963 and also filed an application for condoning the delay. Learned trial

Judge has dismissed the application. Aggrieved by the same, the petitioner has preferred this civil revision petition.

Mr.M.V.Krishnan, learned counsel for the petitioner contended that there is infirmity in the impugned order. Learned counsel further submitted

that once one of the heirs is a party to the suit as a defendant, any delay in bringing on record the legal representatives of the other heirs shall not be

a ground to dismiss the application. In support of the said contention, learned counsel for the petitioner referred to the ruling of the Patna High

Court in Badri Narain Prasad Sah and Others Vs. Bansidhar Prasad and Others, , wherein a learned Single Judge of the Patna High Court has

observed as follows:

It is a settled law that if some of the heirs of the deceased are already on the record then the question of limitation does not arise in the bringing the

other remaining heirs on the record"".

On the other hand, learned counsel for the respondents 1 to 3 contends that there is inordinate delay of eight years in bringing on record the

legal representatives of the deceased Badda Marappa. There is no infirmity in the impugned order.

4.I have considered the contentions of the learned counsel for the petitioner and the respondent. There is force in the contention of Mr. MV.

Krishnan that once one of the heirs of the deceased is already on record as a defendant, there is no question of abatement of the proceedings. The

term, ''legal representative'' is defined u/s 2(11) C.P.C. as follows:

Legal representatives'' 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 sued in a representative character the person on whom the estate devolves on the death of the

party so suing or sued"".

In this connection, the Supreme Court in Mahabir Prasad Vs. Jage Ram and Others, has observed as follows:

Where in a proceeding, a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he

should be described by an appropriate application made in that behalf that he is also on the record, as a heir and legal representatives. Even if there

are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation

Act, the proceeding will not abate"".

In a subsequent judgment of the Supreme Court in Harihar Prasad Singh and Others Vs. Balmiki Prasad Singh and Others, then earlier judgment in

Mahabir Prasad Vs. Jage Ram and Others, is followed and it is further observed as follows:-

The principle is of representation of the estate of the deceased which need not be by all the legal representatives of the deceased"".

Patna High Court has merely followed the above two Supreme Court judgments in Badri Narain Prasad Sah and Others Vs. Bansidhar Prasad

and Others, .

In view of the above Supreme Court rulings, I am of the considered view that the principle is of the representation of the estate of the deceased

which need not be by all the legal representatives of the deceased and where in a proceedings, a party dies and one of the legal representatives is

already on record and even if there are other heirs and legal representatives and no application for impleading them is made within the period of

limitation prescribed by the Limitation Act, 1963, the proceedings will not abate.

In view of the above, the civil revision petition is allowed on terms. The petitioner shall pay a sum of Rs. 1,000 as costs to the counsel for the

respondents within two weeks from the date of receipt of copy of the order, failing which the civil revision petition shall stand automatically

dismissed.