Sekar vs Poongavanathammal

Pushpa Sathyanarayana, J.—This Second Appeal is filed by the Legal Representatives of the First Defendant, challenging the Final Decree proceedings in a Suit for Partition. Originally the Plaintiff, since deceased had filed the Suit for Partition in the Suit properties. The Suit was decreed on 1st August 1977 by allotting 1/4th share in all the Suit properties to the Plaintiff. Pursuant to the Decree, an Application in I.A. No. 1090 of 1991 was filed by the Second Defendant before the District Munsif Court, Jayankondam for passing of Final Decree. The Plaintiff was dead by then. Before the Trial Court, on the side of the Petitioner/Second Defendant, no witnesses and documents were marked. On the side of the Respondents/Defendants 2 to 13, 14 documents were marked as Ex.R1 to R14 and one Govindan was examined as RW1. Exs.C1 to 8 were marked as Court documents. Based on the Report of the Commissioner, a Final Decree was passed. Challenging the correctness of the Order, the First Appeal in A.S. No. 60 of 1996 on the file of the Subordinate Court, Ariyalur, was preferred by the First Defendant, who was the Fourth Respondent in I.A. No. 1090 of 1991 and the Appeal was dismissed. Challenging the same, the present Second Appeal is filed by the Legal Representatives of the First Defendant.

When the Second Appeal was taken up for hearing, a Memo was filed on behalf of the Respondents 1, 3, 5, 7, 8 & 9 informing to the Court that the 11th Respondent in the Appeal namely, Devi died even during the pendency of the First Appeal. In response to the said Memo, the Appellants filed M.P. Nos. 1 to 3 of 2014 praying for condonation of delay of 3401 days in seeking to set aside the abatement caused due to the death of the 11th Respondent-Devi in S.A. No. 588 of 2008; to set aside the abatement caused due to the death of the 11th Respondent Devi in S.A. No. 588 and to bring the 12th Respondent herein on record as Legal Representative of the deceased 11th Respondent-Devi.

Respondents 1, 3, 5, 7, 8 & 9 herein filed a common Counter Affidavit contending that the 11th Respondent namely, Devi died even as early as on 14.7.2004. The judgment in the First Appeal was rendered on 24.1.2007. Therefore, it was objected by the Respondents that the Appeal itself is a nullity as the same being passed against a dead person.

The learned Counsel appearing for the Respondents has objected that the Appellants cannot challenge the Judgment on merits as the Judgment rendered against a dead person is a nullity. Further, it was contended that the Appeal heard on merits by the learned Subordinate Judge, Ariyalur, without bringing the Legal Representatives on record is unsustainable.

The learned Counsel appearing for the Appellants had filed an Additional Affidavit deposed by the First Appellant. In the said Affidavit, it has been stated that his father Govindan was the sole Appellant in A.S. No. 60 of 1996 on the file of the Subordinate Court, Ariyalur and he died on 19.6.2004 (i.e.) immediately after filing of the First Appeal. An Application in I.A. No. 248 of 2005 was filed on 8.7.2004 to implead the Legal Heirs of the deceased Govindan. However before the said Application could be numbered and Order on 14.7.2004, the 11th Respondent was allegedly murdered by the 12th Respondent, who is her husband. The 11th Respondent-Devi was issueless. Though the said Devi was no more on 14.7.2004, no steps have been taken to implead her heir/heirs in the proceedings. The earlier Application filed in I.A. No. 248 of 2005 was ordered only on 27.7.2006 and the Legal Heirs of Govindan were brought on record. Though the said Devi was shown as 5th Appellant in A.S. No. 60 of 1996, as on date of pronouncement of Judgment, she was not alive. Though the Appellants in A.S. No. 60 of 1996 are the brothers and mother of the deceased Devi, who had knowledge about her death, did not care to bring on record her Legal Heir namely, her husband Muruganantham. Therefore, I am of the view that the Appeal can be disposed of with reference to the preliminary objection raised by the learned Counsel appearing for the Respondents.

Order 22, Rule 5 of Civil Procedure Code provides for determination of question as to "Legal Representative". The ''Legal Representative'' according to Section 2(11) of C.P.C., 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. When an Appellant/Respondent in an Appeal dies, and the right to sue survives, the Legal Representatives of the deceased Appellant/Respondent have to be brought on record before the Court can proceed further in the Appeal. The Court cannot postpone the decision as to, who is the Legal Representative of the deceased Respondent to be decided along with the Appeal. If the Legal Representatives are not brought on record within the time stipulated, in law, the Appeal automatically abates. The abatement of an Appeal means not only with the Decree between the Appellant and the Respondent becomes final, but also, the Appellate Court cannot in any way modify the Decree directly or indirectly.

The learned Counsel appearing for the Appellants invited the attention of this Court to the Judgment of this Court in Varadappa Gounder and Others Vs. Karuppa Goundar, , wherein Para 6 reads as follows:

"6. But this is a case where Preliminary Decree was passed on 16.7.1960 and Final Decree is yet to be passed. While so, the Plaintiff died on 12.5.1970, Mr. V. Radhakrishnan, would rely upon the ruling of the Full Bench of this Court reported in Perumal Pillai Vs. Perumal Chetty and Another, . In that case, the Preliminary Decree in a Mortgage Suit was passed on 18.11.1921. The Plaintiff died on 25.2.1922. On 17.2.1925, the Respondent in the Civil Revision Petition put in an Application under Section 151, Civil Procedure Code, and Section 5 of the Limitation Act praying that the abatement of the Suit be set aside. Learned Judges have pointed out the decision must turn on the question whether or not the Suit did abate, three months after the death of the Plaintiff, or as the question presents itself in this case, whether or not a Suit can abate or will abate after a Preliminary Decree therein has been passed. Following question was referred to the decision of the Full Bench:

"Whether Order 22, Rules 3 & 4, Civil Procedure Code, apply to cases of death after the passing of a Preliminary Decree?"

The Full Bench answered the reference by expressing its opinion that Order 22, Rules 3 & 4, C.P.C., do not apply to the present state of circumstances and remitted back the case to the Division Bench. Thus, the Full Bench had held that Order 22, Rules 3 & 4, C.P.C., did not apply to cases where a Preliminary Decree was passed and before the passing of the Final Decree, the Plaintiff died and a Petition was filed for getting impleaded as the Legal Representative of the deceased Plaintiff. The above ruling squarely applies to the facts of this case."

Quoting the above decision, the learned Counsel appearing for the Appellants contended that Order 22, Rules 3 & 4 of C.P.C., do not apply to the cases of death after passing of a Preliminary Decree. But, in this case, the Final Decree was passed and when the same was under challenge, in the Appeal, one of the Respondents died and the Appeal was allowed to be abated. In such circumstances, it has to be considered whether the entire Appeal had abated or the Appeal had abated only against dead person.

In such scenario, the main test was whether the success of the Appeal would lead to a decision, which would be in conflict with the decision between the deceased Appellant and the Respondent. Thus, the Court may have to pass a Decree contradictory to the one, which had already become final with respect to the same subject-matter between the deceased Appellant and the Respondent. No doubt, impleadment of Legal Representatives in a Suit or Appeal is for the limited purpose of adjudication of a case and not for the determination of proprietary rights. When the Appellants had given up the case with the knowledge of the death of the person, automatically the Appeal against the dead person is a nullity.

The learned Counsel appearing for the Appellants also placed a reliance on the decisions in Elisa and others Vs. A. Doss, and Santosh Kumar Mondal and Others Vs. Nandalal Chakrapani and Others, . The above said decisions are not applicable to the present set of facts as the same deals with Order 41, Rule 4 of C.P.C. and it does not deal with Order 22 of C.P.C.

In Jaladi Suguna (deceased) through LRs. Vs. Satya Sai Central Trust and Others, , the Hon''ble Apex Court has decided on the same issue in Paragraphs 9, 10 & 11 of the judgment, which are as follows:

"9. When a Respondent in an Appeal dies, and the rights to sue survives, the Legal Representatives of the deceased Respondent have to be brought on record before the Court can proceed further in the Appeal. Where the Respondent-Plaintiff, who has succeeded in a Suit, dies during the pendency of the Appeal, any judgment rendered on hearing the Appeal filed by the Defendant, without bringing the Legal Representatives of the deceased Respondent-Plaintiff on record, will be a nullity. In the Appeal before the High Court, the First Respondent therein (Suguna) was the contesting Respondent and the Second Respondent (Tenant) was only a proforma Respondent. When First Respondent in the Appeal died, the right to prosecute the Appeal survived against her estate. Therefore, it was necessary to bring the Legal Representative/s of the deceased Suguna on record to proceed with the Appeal.

Filing an Application to bring the Legal Representatives on record, does not amount to bringing the Legal Representatives on record. When an LR Application is filed, the Court should consider it and decide whether the persons named therein as the Legal Representatives, should be brought on record to represent the estate of the deceased. Until such decision by the Court, the persons claiming to be the Legal Representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the Legal Representative, a decision should be rendered on such dispute. Only when the question of Legal Representative is determined by the Court and such Legal Representative is brought on record, it can be said that the estate of the deceased is represented. The determination as to who is the Legal Representative under Order 22, Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the Legal Representative, any right to the property which is the subject matter of the Suit, vis-a-vis other rival Claimants to the estate of the deceased.

The provisions of Rules 4 & 5 of Order 22, are mandatory. When a Respondent in an Appeal dies, the Court cannot simply say that it will hear all rival Claimants to the estate of the deceased Respondent and proceed to dispose of the Appeal. Nor can it implead all persons claiming to be Legal Representative of the deceased Respondent, for being decided along with the Appeal on merits. The Code clearly provides that where a question arises as to whether any person is or is not the Legal Representative of a deceased Respondent, such question shall be determined by the Court. The Code also provides that where one of the Respondents dies and the rights to sue does not survive against the surviving Respondents, the Court shall, on an Application made in that behalf, cause the Legal Representatives of the deceased Respondent to be made parties, and then proceed with the case. Though Rule 5 does not specifically provide that determination of Legal Representative should proceed the hearing of the Appeal on merits, Rule 4 read with Rule 11 make it clear that the Appeal can be heard only after the Legal Representatives are brought on record."

In view of the above decisions, it is very clear that the non-impleadment of Legal Heirs of the deceased 11th Respondent is fatal to the case of the Appellants. The deceased is the sister and daughter of the Appellants in A.S. No. 60 of 1996. She did not suffer natural death but she was alleged to have been murdered by her husband. Therefore, lack of diligence and negligence have to be attributed to the Appellants, who were aware of the death of the 11th Respondent, but failed to take steps to bring the Legal Representatives on record. Though the deceased Devi did not have a child, her husband could be the Legal Heir. Whether her husband could be disqualified from inheriting the property being a murderer could be decided only after he is brought on record and that cannot be the reason for not impleading him as the Legal Representative of the deceased Devi. On the date of hearing of the Appeal in A.S. No. 60 of 1996, the said Devi was dead and the question as to who is her Legal Representative to represent her estate was left undecided. This amounts to the Appeal being heard against a dead person, which is impermissible in law. Therefore, the entire judgment of the Lower Appellate Court is nullity and in-operative which is to be set aside.

In view of the foregoing facts and circumstances, the Judgment and Decree of the Lower Appellate Court in A.S. No. 60 of 1996 on the file of the Subordinate Court, Ariyalur are set aside and the matter is remitted back to the Lower Appellate Court. It is open to the Appellants to file LR Petitions afresh. In the event of filing of any such Petition to implead the Legal Representative of the deceased Devi, the Subordinate Court, Ariyalur is directed to decide the question as to who is the Legal Representative of the deceased Devi and after such determination, the Legal Representatives may be brought on record to represent the estate of the deceased Devi and the Appeal has to be heard on merits and disposed of in accordance with law. In the result, M.P. Nos. 1 to 3 of 2014 are dismissed. With the above observations and directions, the Second Appeal is disposed of. Consequently, the connected M.P. No. 1 of 2008 is closed. No order as to costs.