Manmanthappa vs Parvathi Bai and Others

In this case a Division Bench of this Court consisting of myself and my learned brother, Dr. Mir Siadat Ali Khan, had referred the following question of law because of its importance:

Whether an assignee of a person who was not brought on record but who had filed a petition for legal representation could put in a petition for substitution.

In order to understand this question a brief reference to the facts is necessary.

Manmanthappa, the Appellant, died on 7-1-1951 F; and his son Uma Shanker filed an application on 23-2-51 F. praying that he should be brought on record as his legal representative. Before his petition was accepted, he died on 28-12-1351 F. and Shanker filed a petition alleging that on 13-10-1351 F. Uma Shanker had transferred a part of the suit property to him and he should, therefore, be brought on record as his legal representative. It appears that some time before this on 14-9-52 one Shambu also had put in a similar petition alleging that he was the legal representative of Uma Shanker and should be brought on record. On 10-6-53 F. a Division Bench of this Court passed the following order on the petition of Shanker:

The petition of the third person be filed for the present. After the petition for legal representation is disposed of, this petition should be posted for necessary orders.

Shambu''s petition for legal representation was rejected for being time-barred.

After its dismissal, the office reported on 9-1-1357 F. that as Manmanthappa was the only Appellant there and the petition for his legal representation has been dismissed, suitable orders should be passed regarding the appeal. A Division Bench of this Court, therefore, directed on 14-8-1952, that the appeal should abate. It appears that when this order was passed the attention of the Court was not drawn to the petition of Shanker filed earlier. After it was passed Shanker put in a petition by way of a review drawing the attention of the Court to the fact that the appeal could not have abated so long as his petition was subsisting and was not disposed of. The Division Bench directed that notice of the petition be given to the other side which appeared and resisted the petition of Shanker.

The stand taken was that Shanker was not claiming any title from the Appellant, Manmanthappa, but was alleging that a sale-deed was made in his favour by his son, Uma Shanker; and as Uma Shanker was not brought on record as legal representative, his assignee, Shanker, had no right to put in a petition for legal representation of the Appellant.

The reply of the Petitioner Shanker, was that u/s 146, Code of Civil Procedure, he has a right to put in the petition. The learned Advocates for the parties cited numerous authorities. Owing to the importance of the question involved, the Division Bench referred it to the Full Bench and the question is, therefore, before us now. We have heard the arguments of the learned Advocates of the parties.

The question that calls for consideration is whether Section 146, Code of Civil Procedure, could be read divorced from Order 22, Rule 10 and whether Shanker can put in a petition under it. The relevant provisions of the CPC are: Order 22, Rule 3 & 10 & Section 146. Order 22, Rule 3 provides:

Where one of two or more Plaintiffs dies and the right to sue does not survive to the surviving Plaintiff or Plaintiffs alone, or a sole Plaintiff or sole surviving Plaintiff dies and the right to sue survives, the Court on an application made in that behalf shall cause the legal representative of the deceased Plaintiff to be made a party and shall proceed with the suit.

Order 22, Rule 10 is to the following effect:

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.

Section 148, Code of Civil Procedure, runs thus:

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

It may be pointed out that Section 146, Code of Civil Procedure. is a residuary Section which extends the principle of Order 22, Rule 10 to proceedings and applications for which no other provision is made by the Code or any other law and it enacts that where any proceeding may be taken or application made by or against any person, the proceeding may be taken or application may be made by or against any person claiming under him. It would follow that if there is any other provision applicable, then Section 146, Code of Civil Procedure. would not apply. Hence we will have to see whether there is any other provision of the Code applicable to the facts of the present petition.

The Petitioner, Shanker, is not the legal representative of Manmanthappa or Uma Shanker, and, therefore, cannot file a petition under Order 22, Rule 3 Code of Civil Procedure. He is an assignee of Uma Shanker. Under Order 22, Rule 10 the assignee of a party can flue a petition for substitution. Admittedly, the Petitioner is not an assignee of the Appellant, Manmanthappa, but is that of Uma Shanker who was not a party to the appeal. Hence, he cannot put in a petition under Order 22, Rule 10. Thus, he cannot put a petition either under Order 22, Rule 3 or Rule 10 and his contention is that as there is no other provision, Section 148 alone is applicable.

Reliance is placed on--Anilchandra v. Gopinath AIR 1960 Cal 376 (A). The contention of the other side is that Section 146, CPC has to be read with Order 22, Rule 10 and cannot be react divorced from it and hence the Petitioner cannot get the benefit of Section 146, CPC as Uma Shanker she has transferred his house to him could not "pat in a petition under this section. Reliance is placed on the case of--C.K. Kuttimmnu v. K.T. Karunawan AIR 1921 Mad HOC (B)--Gobardhan Mukhorjee v. Sallgram AIR 1836 Pat 123 (C) and-- AIR 1940 104 (Nagpur) (D).

In the case of AIR 1925 Mad 1166 (B), Plaintiff had died: his successor did not apply to be brought on record to continue the suits. The suits would, therefore, have abated after six months of the death of the Plaintiff. Within this period the assignee of the Plaintiff''s successor filed petitions in the two suits under Order 22, Rule 10 for subornation. These were rejected. On appeal, Wallace, J. held that she cannot come under Order 22, Rule 3 as she is not claiming under the original Plaintiff, and is not his legal representative; nor iS she an intermeddler, as she derives title from the deceased''s heir and is not in a position of opposition to the legal heir.

The learned Judge held further that she cannot apply even under Rule 10 for:

She can only claim to be subrogated to the existing rights of her assignor, and if that right does not include the right to continue the suit, she cannot be subrogated to such right which does not exist in her assignor. The assignor who has not been brought in the suits, has no locus standi therein and, a fortiori his assignee, can have none. The words ''assignment'' and ''creation'' (in Order 22, Rule 10) indicate that it is the person suing that, assigns and creates the interest which enables the assignee to continue the suit and that Rule 10 contemplates cases of devolution of interest from some original party to the suit whether Plaintiff or Defendant upon some one else.

The learned Judge then considered whether Section 146 will avail her, and held that as her assignor was a legal representative, he could, have applied under Order 22, Rule 3 only; but as her application was under Rule 10, Section 146 will not validate it, for she is not claiming under any one who might have put in a valid application under Rule 10; and that it is not necessary to consider whether u/s 146 she could have put in an application under Rule 3 to be herself brought on as legal representative, since no such application was filed by her. Thus evidently this case docs not support the contention of the Respondents as it does not negative that the assignee of an heir who was not brought on record could apply u/s 146.

The second ease relied on by the Respondent is the case of AIR 1938 Pat 123 (C). In this case the Appellant Gobardhan Mukherjee filed an application alleging that as he had acquired a 99 year lease of the disputed property from the deceased Plaintiff during her lifetime, he should be substituted in her place. This application was rejected. By a second petition he made a fresh prayer for substitution on the strength of a lease which he claimed to have obtained from the daughter of the deceased Plaintiff. The learned Subordinate Judge rejected this application.

It was held by Mohammad Noor and Saunders JJ. of the Patna High Court regarding the first application that:

Order 22, Rule 3 deals with substitution after the death of a party. This rule does not apply to a man who does not come in as a legal representative of a deceased party but as an assignee from him; therefore it is obvious that the petition does not lie under Order 2, Rule 3.

Question is: whether the application was competent under Order 22, Rule 10. Regarding this question it was held by their Lordships that as this rule refers to cases of assignment of an interest this rule would have been applicable, but as the Subordinate Judge rejected it on the ground that the deceased had only a life interest and no appeal was filed against it, the order of rejection had become final. Regarding the second application based on a lease from the daughter of the deceased, it was held that as Order 22, Rule 3 applies to substitution in case a party dies and the daughter had not died, the application was not competent under Rule 3. As to whether it was competent under Rule 10, it was held on the authority of the Madras case referred to in the preceding paragraph that it was not competent, for, the assignment was not from a "party", and under Rule 10, the assignment can only be from a party who was on record. On this point it was observed that:

The word ''party'' in Rule 10 refers to a party who is already on record. It will be defeating the object of the law if the legal representative of the deceased party instead of coming forward and himself taking the responsibility of the suit, transfers his interest to another man and that man is permitted to continue the suit.

The question whether Section 146 applied to the petition was also considered and it was held that:

Conceding that Section 146 has any application to this case, the utmost that can be said is that the Appellant is entitled to make an application, but the only application which he can make is for the substitution of the name of the daughter in place of the Plaintiff. Section 146 authorizes a person claiming under another person to make an application which the other person could have made. The Appellant could have made an application which the daughter could have made, namely, for substitution of her name. I fail to understand how he can apply for substitution of his own name.

This case, therefore, does not lay down that the first petition was not competent under Rule 10, and, therefore, no question of application of Section 146 arose in respect of it.

Regarding the second application, this case lays down that it was not competent under Rule 10; but the authority on which it is so held is the Madras case referred to in the preceding paragraph. The Madras case did not negative the application of Section 146 in such a case, but the Patna case does negative it. With great respect we do not see why the Appellant could not have applied for substitution of his own name. The wording of Section 146 is general and he can very well do so, and the Calcutta case which we will allude to shortly is clear authority for the same.

The third, case relied upon is that of AIR 1946 Nag 164 (D). In this case also the Plaintiff had died, his legal representatives had not applied for substitution within the period of limitation, and an assignee of a legal representative had applied a few days after the expiry of the period of limitation. Neogy J. accepted the view of the Madras High Court in the case referred to above and observed that:

The person who comes forward claiming as legal representative or assignee under Order 22, Rule 10, CPC must derive his right directly and not through an intermediary from the party to the suit or proceedings Section 146, Code of Civil Procedure. Can not avail the Applicant claiming through an intermediary since it cannot be read divorced from Order 22, Rule 10. The consideration which weighs with me is that if such assignees are permitted to come in, it would be open to any legal representative, who does not apply to be substituted within time, to transfer his estate to somebody and defeat the law prescribing abatement of the suit.

As already stated above, the Calcutta High Court took a different view in-- Anil Chandra Banerjee and Another Vs. Gopinath Mukherjee and Others, (A). Sen and Chunder JJ. have held:

Section 146 Code of Civil Procedure. means that an application or proceeding of a like nature can be taken by the transferee as could have been taken by the transferor, not that he should make the identical application. If the transferor could have applied for substitution of his name in the case, the transferee can apply for the substitution of his own name as the interest of the transferor has devolved upon him.

No rulings of the Allahabad and Bombay High Courts were cited before us or are available on this point. There is no ruling of this. Court either.

Thus, out of the three cases relied on by the Respondents we have already seen that the Madras case does not negative the application of Section 146 in a petition by an assignee of a person who is not on record as legal representative. The Putna case does negative it and the reason given is against the general wording of Section 146 as we have already seen. The Nagpur case also relies on the Madras case and negatives the application of Section 146 divorced from Order 22, Rule 10. The reason given is that otherwise it would go against the law prescribed in the abatement of suits or appeals. With respect, this would happen only when petitions by assignees are filed out of time and would not apply if the petitions are filed in time.

On the question of the interpretation also there appears to be scant authority aliunde for the mating together of Order 22, Rule 10 and the Section 146. As stated by us above, Section 146 appears to be a residuary section and applicable only when there are no other provisions in the Code or any other law. Therefore, it would seem that Section 146 would have application where Order 22 Rule 3 or Rule 10 does not apply. However, this may be, in this case Uma Shanker being the legal representative of Manmanthappa had in fact filed a petition for representation under Order 22, Rule 3. Inadvertently no attention was paid to this petition. Hence the question of limitation also does not arise as Uma Shanker''s petition was in time. In the circumstances on the facts of this case we are clearly of the opinion that none of the cases relied on by the Respondent prevents the allowing of Shanker''s application as an assignee of Uma Shanker under the express wording of Section 146, the wording being that:

Where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.

Here Uma Shanker could have applied for legal representation, and as Shanker claims under him he can put in an application. We are thus of the opinion that the answer to the question referred to us by the Division Bench is in the affirmative in the circumstances of the case.