Varadappa Gounder and Others vs Karuppa Goundar

Pratap Singh, J.—This civil revision petition is directed against the order in I.A No. 502 of 1982 in O.S. No. 184 of 1982 on the file of the

District Munsif, Thiruchengode.

Short facts are: Respondent''s father, Mottaian ; alias Adakkathia Gounder, filed the suit in O.S. No. 527 of 1959, for partition and separate

possession of his 1/5 share in the suit property. In that suit, on 16.7.1960 a preliminary decree was passed. Later he filed I.A. No. 698 of 1965

for passing of a final decree. A commissioner was appointed to suggest the modes of division and he had filed his report. The defendants filed I.A

No. 1268 of 1967 putting forth their objections to the Commissioner''s report and sought appointment of a fresh commissioner. That application

was dismissed on 4.7.1967. A revision petition, filed against that order before this Court, was also dismissed. By then I.A. No. 698 of 1965 was

pending. On 12.5.1970 the plaintiff died and so I.A. No. 698 of 1965 was allowed to be dismissed on 30.6.1970. Later the respondent filed I.A.

No. 1424 of 1974 under Order 22, Rule 3, CPC on 1.7.1974 praying to implead himself as the legal representative of the deceased plaintiff

alleging that though his father had left other heirs, by virtue of the will executed by his father on 19.8.1970, he was the sole legatee, and he should

be impleaded as the legal representative of the deceased plaintiff. His claim was resisted by the revision petitioners, who are defendants 3 to 6 in

the suit, and other defendants. After enquiry, the court below had allowed the petition. Aggrieved by that order, defendants 3 to 6 have come

forward with this revision petition.

Mr. S.P. Subramanian, learned Counsel appearing for the revision petitioners, would submit that in the counter affidavit filed in the court below,

they have disputed the will propounded by the respondent and they have also given the details of other legal representatives, viz. junior widow, 5

more sons and 3 daughters apart from the respondent through his two wives and without impleading them the order of the court below impleading

the respondent alone is not correct and on that ground the petition ought to have been dismissed as not maintainable. Learned Counsel further

submitted that the plaintiff died on 12.5.1970, that 90 days time is given for impleading the legal representatives and that time would come to an

end by 4.8.1970 as per Article 120 of the Limitation Act; and similarly time to set aside an abatement is 60 days"" and in this case that time will run

from 4.8.1970 and come to an end on 4.10.1970 and by that time no petition was filed to set aside the abatement and while so this petition filed

on 1.7.197''4 is barred by time.

Per contra, Mr. V. Radhakrishnan, learned Counsel appearing for the respondent, would submit that in a partition suit where a preliminary

decree was passed, Order 22, Rules 3 and 4, C.P.C., are not applicable as there is no question of abatement at all, and so the question of

limitation does not arise. He would further submit that admittedly the respondent is one of the sons of the deceased plaintiff and as such impleading

him as legal representative is sustainable, that he can represent the entire estate of the plaintiff, that the claim of other legal representatives has to be

worked out between themselves and that would not stand in the way of the respondent getting himself impleaded as the legal representative of the

deceased plaintiff.

I have carefully considered the submissions made by the rival Counsels. I shall first take up the question of limitation. Article 120 of the

Limitation Act stipulates a period of 90 days for an application under the Code of Civil Procedure, 1908, to have the legal representative of a

deceased plaintiff or appellant or of a deceased defendant or respondent made a party and the time has to be computed from the date of death of

the plaintiff, appellant, defendant or respondent, as the case may be. As per Article 121 for an application under the CPC to set aside an

abatement the limitation of sixty days shall run from the date of abatement. In the instant case, the date of death of the deceased plaintiff was

12.5.1970 and the petition to implead was filed on 1.7.1974. If Articles 120 and 121 are applied, the application is clearly barred by time.

But this is a case where preliminary decree was passed on 16.7.I960 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 u/s 151, Civil Procedure Code, andSection 5

of the Limitation Act praying that the abatement of the suit be set aside. Learned Judges have pointed out that 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 and 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 and 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 and 4, C.P.C. do 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.

Mr. V. Radhakrishnan, would also rely upon the ruling in Packirisomy Parayar v. Animboo Ammal 1982 T.L.N.J. 374, wherein Mohan, J. (as

he then was) after referring the above quoted Full Bench ruling held likewise that Order 22, Rules 3 and 4, C.P.C., do not apply to cases of death

after the passing of the preliminary decree. In view of the above, I do not accept the submission made by Mr. S.P. Subramanian that the petition

was barred by time.

I have to consider the next submission made by Mr. S.P. Subramaniam, learned Counsel for the petitioner. The claim of the respondent that he

is one of the sons of the deceased is not in dispute. According to the revision petitioners, the deceased had left his junior widow, 5 more sons and

three daughters apart from the respondent, and so without impleading them, the order of the court below is not correct.

Mr. V. Radhakrishnan, learned Counsel in order to support his submissions, relied upon the decision reported in Krishnakumar Vs. N.

Goverdhana Naidu and Another, . In that case, the question came up before the High Court in the following manner: During the pendency of the

suit, the second defendant died. The plaintiff filed a petition to implead his own son as legal representative of the second defendant alleging that the

second defendant has left a Will under which the plaintiffs son was legatee. That claim was resisted by the first defendant. The trial court dismissed

the petition and aggrieved by the same, the revision has been filed before this Court and the matter came up for consideration. Natarajan, J. (as he

then was) had laid as follows:

The recognition of a rival contender as the legal representative of a deceased party in a pending action is only to facilitate the early disposal of the

pending action. Any recognition of right given by a court in such a proceeding will not confer rights on the recognised representative in the estate or

property of the deceased person, nor will such a finding operate asresjudicata in subsequent proceedings. [Italics supplied]. The very fact that no

appeal is provided from an order passed under Order 22, R.5, C.P.C. will go to show that the order cannot be characterised as one finally

decided by a court'' as contemplated in Section 11, C.P.C.

In Kadir Mohideen Marakkoyar v. N.V. Muthukrishna Ayyar ILR 26 Mad 230, a Division Bench of this Court held as follows:

As already stated, on the application of the plaintiff, the first defendant''s name was entered on the record in the place of the deceased defendant as

his legal representative. In our opinion a person whom the plaintiff alleges to be the legal representative of the deceased defendant and whose name

the court enters on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit and in the

absence of any fraud or collusion, the decree passed in such suit will bind such estate. It will of course be open to any other person who is or claim

to be the legal representative of the deceased defendant to apply to have his name also entered on the record as a legal representative in the place

of the deceased defendant.

The Apex Court had referred to this Division Bench ruling of this Court and had approved it in Harihar Prasad Singh and Others Vs. Balmiki

Prasad Singh and Others, .

In view of the above rulings relied on by Mr. V. Radhakrishnan, the position is clear that the claim of the respondent to be impleaded as a legal

representative cannot be resisted on the ground that there were other heirs. It is always open to others to come on record. By impleading the

respondent as the legal representative of the deceased, he cannot claim that he is the sole legal representative of the deceased when the will relied

upon by him has not been now proved. Subject to this observation alone, his claim to be impleaded as the legal representative is allowed. For the

reasons stated above, I am unable to accept the submission made by Mr. S.P. Subramaniam.

The learned Counsel for the revised petitioner would submit that there are no pending proceedings and at this stage the respondent cannot

seek himself to be impleaded as the legal representative of the deceased. In the suit, already preliminary decree was passed and till final decree is

passed it must be deemed to be pending proceedings and as such I am unable to accept this submission also. He submits that since the will was

given up the respondent, he cannot be impleaded as the legal representative of the deceased. As already pointed out by me, the respondent cannot

claim by getting himself impleading that he is the sole heir of the deceased. None of the submissions made on behalf of the revision petitioner finds

acceptance with me.

The civil revision petition, therefore, fail and shall stand dismissed. No costs.