HIGH COURT OF ORISSA: CUTTACK
C.R.P. No.110 of 2007
From an order dated 05.10.2007 passed by the Civil Judge (Sr. Division), Bonai in T.S.No.21 of 1997.
Suren Prasad Jaiswal @ Suren Jaiswal,
Son of Late Ram Kumar Jaiswal,
Tahasil/Munsif : Bonaigarh,
Dist : Sundargarh and another ... Petitioners -Versus-
Santibai Jaiswal and others ... Opp. Parties For Petitioners : M/s. Ashok Mukherji, Sr. Advocate G.Mukherji, P.Mukherji,
A.C. Panda, M.R.Barik & S.Patra
For Opp. Parties : M/s. A.K.Nanda, G.N.Rana, S.K.Meher
P R E S E N T:
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA
Date of Judgment: 03.02.2012
B.N. Mahapatra, J. The petitioners, who are defendants in trial court, have preferred this Civil Revision challenging correctness of the order dated 05.10.2007 passed by the learned Civil Judge (Sr. Division), Bonai in T.S. No.21 of 1997.
2. The petitioners' case in a nutshell is that opposite party Nos.1 to 3 were the plaintiffs in the trial Court and the present petitioners were the defendants therein. The plaintiffs filed T.S. No.21 of 1997 for partition of Ac.1.95 decimals of land. Defendants claimed 2
that besides Ac.1.95 decimals, Ac.2.87 decimals of land was also liable to be partitioned as the same was acquired by joint family funds. The trial Court accepted the plea of the defendants and passed a decree in respect of total Ac.4.82 decimals of land (Ac.1.95 decimals + Ac.2.87 decimals) vide judgment dated 09.12.1998. Being aggrieved plaintiffs filed T.A. 05/1999 against the preliminary decree of the trial Court before the learned District Judge. The learned District Judge modified the preliminary decree to the extent that the land measuring Ac.2.87 decimals is not to be partitioned. On the basis of the judgment in appeal, plaintiffs started the final decree proceeding for partition of Ac.1.95 decimals of land. In the final decree proceeding, the plaintiffs impleaded the wife of defendant No.1, who died on 30.03.2003. The defendants filed objection alleging that the judgment passed in appeal is null and void as it was passed against a dead person. The learned trial Court rejected the plea of the defendants by order dated 05.10.2007 on the ground that the widow of defendant No.1 had not filed any objection in the final decree proceedings and the other objecting defendants have not challenged the appellate decree in the higher forum. Hence, the present Revision Petition.
3. Mr.Ashok Mukherji, learned Senior Advocate appearing on behalf of the revision petitioners submitted that both the grounds on which the objection of the defendants have been rejected are wrong. If the appellate judgment was passed against a dead person it is null and void. No appeal is required to be filed since the defendant No.1 died on 30.03.2003 before commencement of hearing of the 3
appeal and the judgment was passed on 21.04.2004. Further it is immaterial whether the wife of deceased Nankubai filed any objection or not. If Ac.2.87 decimal is partitioned, the objecting defendants would get a share out of it. As Ac.2.87 decimals have been excluded the objecting defendants' stand is that they would lose their share in the said property. Therefore, their objection is tenable.
4. Placing reliance on the judgment of the Hon'ble Supreme Court in the case of Budh Ram & Ors. V. Bansi & Ors., 2010 AIR SCW 5071, it was argued that abatement takes place automatically by application of law without any order of the Court. Setting aside of abatement can be sought once the suit stands abated. Abatement in fact results in denial of hearing of the case on merits. The co-owner of the property owns every part of the composite property along with other side and he cannot be held to be fractional owner of the property unless partition takes place. Courts will not proceed with an appeal when success of appeal may lead to Court's coming to decision which may be in conflict with the decision between the appellant and deceased respondent and therefore it would lead to Court's passing a decree which will be contrary to the decree which had become final. Placing reliance in the case of Lobi Dei and another vs. Kubera Balabantara and others, 64 (1987) C.L.T. 289, Mr. Mukherji further submitted that the proper course for the trial Court was to send the case to the appellate Court with report who should deal with the question of setting aside abatement and substitution/impletion of the legal representatives in place of the deceased party whereafter the 4
matter must be sent back to the trial Court for fresh disposal in accordance with the order of remand. The abatement has to be set aside and substitution has to be allowed by the Court where the death takes place.
5. Placing reliance on the judgment of this Court in Braja Behera and others vs. Gandaram Behera and other, AIR 1990 Orissa 94 it was argued that provisions of Order 22, Rule 10(A), C.P.C. are not mandatory but directory as no penal provision has been provided in the Code for non-compliance of Rule 10(A). The decision of the Hon'ble Supreme Court in the case of Mohd. Hussain (Dead) by LRS Vs. Gopibai and others, 2008(3) SCC 233 relied upon by the defendants is distinguishable wherein the Hon'ble Supreme Court observed that ordinarily the court does not regard a decree binding upon a person who was not impleaded eo nomine in the action.
6. Per contra, Mr.A.K.Nanda, learned counsel for the opposite parties submitted that before the judgment was delivered by the learned Appellate Court, defendant No.1, who is the father of other defendants, expired on 30.03.2003 and the said fact was not brought to the knowledge of the learned Appellate Court by the other defendants through their pleader although they are the sons of defendant No.1. As all the sons of deceased defendant No.1 are already on record in the suit the defendant-respondents remained under bona fide belief that there is no necessity to bring on record the widow of defendant No.1. Defendants already on record are none other 5
than the sons of deceased-defendant No.1. One fourth share in the suit land is allotted in the name of their father. As such, after the death of defendant No.1 the son-defendants had substantial/sufficient representation of interest on the estate of the deceased. In view of the fact that the son-defendants are already on record as heirs and representatives of the deceased defendant No.1 and the fact that the non-impleaded widow of defendant No.1 was sufficiently represented by the defendants' sons already on record, it would be too technical to set aside the entire judgment of the learned Appellate Court for not bringing the widow on record. In support of his contention, learned Counsel relied upon the judgment of the Supreme Court in Mohd. Hussain (Dead) by LRS (supra).
7. Placing reliance on the judgment of the Hon'ble Supreme Court in Harihar Prasad Singh and others vs. Balmiki Prasad Singh and others, AIR 1975 SC 733, it was submitted that in the instant case the impleaded legal representatives sufficiently represent the estate of the deceased and the decision obtained with them on record binds not merely those impleaded but the entire estate including the estate of widow who is not brought on record. Unless there is any fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir, there was a special case, which was not or could not be tried in the proceedings, the heirs, who have applied or brought on record should be held to represent the entire estate including the interest of the heirs not brought on record. As such, the widow being 6
sufficiently represented by the other defendants in the suit the plea of nullity of the decree due to her not being substituted in the appeal is too technical a ground to set aside the judgment and decree passed by the learned Courts below.
8. Further placing reliance on the judgment of the Hon'ble Supreme Court in the case of N. Jayaram Reddy and another vs. Revenue Divisional Officer and Land Acquisition Officer, Kurnool, AIR 1979 SC 1393, it was argued that an Appellate Court is not denuded of its jurisdiction to hear an appeal in which one of the defendant-respondents died and the right to sue does not survive against the surviving defendant or defendants merely because no application has been made to bring his legal representatives on the record when no objection to that effect is raised by any one. The underlying provision contained in Order 22, Rules 3 and 4 is indisputably a facet of natural justice or a limb of audi alteram partem rule. If some legal representatives are before the Court, or they are brought before the Court in another capacity or are brought on record at some stage of the suit, the action will not abate even if there is no strict compliance with the requirement of Rules 3 and 4 of Order 22. It was further argued that the citations relied upon by the petitioner are not applicable to the facts of this case. Concluding his argument, Mr. Nanda submitted that the widow of deceased defendant No.1 is sufficiently represented by the other defendants, who are none other than the sons of defendant No.1 and there is no conflict of right amongst them in respect of the estate of the deceased-defendant No.1 7
and therefore, the learned trial Court rightly rejected the petition of the petitioners by the impugned order. Therefore, he prays for dismissal of the revision petition.
9. On the rival contentions raised by the parties, the following questions fall for consideration by this Court. (i) Whether in the facts and circumstances of the case, the appeal abates for non-substitution of wife of deceased- defendant No.1 in presence of other legal heirs already on record?
(ii) Whether the other legal heirs who are sons of deceased- defendant No.1 can represent the interest of widow of deceased defendant No.1?
(iii) Whether the appellate order is a nullity for non- substitution of widow of the deceased defendant No.1 in presence of other defendants, who are sons of deceased defendant No.1?
(iv) Whether the decree passed in appeal on 21.02.2004 attained finality, the same being not challenged in the higher forum ?
10. Question Nos. (i) and (ii) being inter-related they are dealt with together. Undisputedly, opposite parties 1 to 3 (plaintiffs in the court below) filed a partition suit bearing T.S. No.21 of 1997 for partition of the suit land measuring Ac.1.95 decimals. Defendants are father and sons. Defendants admitted the partition of the suit land. However, they claimed another land measuring Ac.2.87 decimals to be included in the partition. The trial Court allowed the suit for partition of both the lands. Being aggrieved, the opposite parties filed appeal 8
before the learned District Judge, who allowed the same modifying the decree to the extent that in the partition of the family property the land recorded in Khata No.39 measuring an area of Ac.2.87 decimals shall not be put to partition. It is also a fact that defendant No.1 died on 30.03.2003 before commencement of hearing of the appeal and the judgment was passed on 21.02.2004. No step was taken by the plaintiffs for substitution of the widow of deceased defendant No.1, who is the mother of the other defendants. Petitioners' case is that on the death of defendant No.1, the appeal abated for non-substation of widow of the deceased defendant No.1. The opposite parties-plaintiffs' case is that since the other legal heirs, who are the sons of deceased defendant No.1, are already on record, the suit will not abate as they fully represent the estate and the interest of the widow of the deceased is protected by the other defendants who are her sons.
11. At this juncture, it may be useful to refer to some of the judicial pronouncements.
The Hon'ble Supreme Court in the case of Dolai Maliko (dead) represented by his legal representatives and others v. Krushna Chandra Patnaik and others reported in Vol.XXXIII (1967) CLT-1, held that even where the plaintiff or the appellant has died and all his legal heirs have not been brought on record because of oversight or because of some doubt as to who are his heirs, the suit or the appeal, as the case may be, does not abate and the heirs brought on the record fully represent the estate unless there are 9
circumstances like fraud or collusion. Admittedly, in the present case the petitioners-defendants case is not a case of collusion or fraud.
12. In N.K.Mohd. Sulaiman v. N.C.Mohd. Ismail, AIR 1966 SC 792, the Hon'ble Supreme Court rejected the contention that in a suit to enforce a mortgage instituted after the death of a Muslim, if all the heirs of the deceased were not impleaded in the suit and a decree was obtained, and in execution the property was sold, the auction purchaser could have title only to the extent of the interest of the heirs who were impleaded, and he could have no title to the interest of those heirs who had not been impleaded to the suit. The Court held, that those who were impleaded as party to the suit in place of the deceased defendant represented the entire estate as they had share in the property and since they had been brought on record the decree was binding on the entire estate. Therefore, for non-substitution of the legal heirs of defendant no.2, the suit does not abate in presence of defendant No.1.
13. The Hon'ble Supreme Court in the case of Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique, AIR 1989 SC 1589 held as under:
"Legal representative" as defined in Civil
Procedure Code 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 is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. The definition is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not be heir, competent to 10
inherit the property of the deceased but he should represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal reprehensive". If there are many heirs, those in possessions bona fide,
without there being any fraud or collusion, are also entitled to represent the estate of the deceased. Under the Portugees Law of Inheritance a widow acquires "Meeira rights" according to which she gets half share in the estate left by her deceased husband. Such widow therefore
represented the estate of her deceased husband. When in a suit against the husband of such
Portugees widow and after the death of the
husband, the name of his widow is brought on record within time, the abatement of suit would be liable to be set aside, and the suit could proceed on merits notwithstanding the fact that the remaining legal representatives of the
deceased husband were brought on record at a subsequent stage. That could not render the suit defective."
14. In Mohd. Hussain (Dead) by LRS (supra), the question before the Hon'ble Supreme Court was as to whether the Second Appeal of respondent Nos. 1 to 4, who were appellants before the High Court had abated as they failed to make an application to bring legal heirs and representative of Mohd. Hussain, one of the respondents in the High Court who had died during the pendency of that Second Appeal. The Hon'ble Supreme Court taking into consideration that sons of Mohd. Hussain were already on record, held as follows:- "It is an admitted position that some of the heirs and legal representatives of Mohd. Hussain were already on record in the file of the Second
Appeal. Such being the position, in our view, the question of abatement of the Second Appeal on the death of Mohd. Hussain could not arise at 11
all as some of his heirs and legal representatives were admittedly on record. Only the question of noting the death of Mohd. Hussain could arise and his name could be deleted from the array of the respondents in the Second Appeal. That
being the position, even if the judgment was delivered after the death of Mohd. Hussain
whose entire body of heirs and legal
representatives were not brought on the record, even then the only requirement under the law was to take note of the death of Mohd. Hussain and delete his name from the array of the
respondents in the Second Appeal and the rest of the heirs and legal representatives who had not brought on record could be added in the
cause title of the memorandum of appeal.
Therefore, in our view, it would be considered too technical to set aside the entire judgment of the High Court on the ground of not bringing the entire body of heirs and legal representatives of Mohd. Hussain because some of his heirs and
legal representatives were on record and the left out heirs and legal representatives were
sufficiently represented by the other heirs on record. Accordingly, the first question as posed herein above is decided in favour of the present respondents."
(Also see AIR 1975 SC 733)
15. In the instant case, it is admitted position that the sons of deceased defendant No.1, who are the heirs and legal representatives of defendant No.1, were already on record in the file of the appeal. They have been fighting the litigation against the plaintiffs. They sufficiently represented the estate of the deceased defendant No.1 which includes the interest of his widow. It is nobody's case that non- substitution of widow in the appeal was outcome of any fraud or collusion between the appellant and the defendants. The appeal having been arisen out of a suit for partition, the widow had no 12
special case to represent other than those were pleaded and contested by the defendants already on record.
16. Under Order 22, Rule 10A, CPC duty is cast on the pleader appearing for a party when he comes to know of the death of that party to inform the Court about it whereupon the Court shall give notice of such death to the other party. It is not in dispute that in the instant case, the pleader for the respondents in the Appellate Court has not brought to the notice of the appellate court about the death of respondent No.1, which is violative of provision of Order 22 Rule 10A, CPC. On the other hand it is only in the execution proceeding, the defendants raised the issue of non-substitution of the widow of deceased defendant No.1 in the appellate Court.
17. It may also be relevant to refer to the judgment of the Hon'ble Supreme Court in N. Jayaram Reddy and another (supra), wherein it is held as under:
"It cannot be held that an appellate Court
is denuded of its jurisdiction to hear an appeal in which one of the respondents has died and the right to sue does not survive against the surviving defendant or defendants alone merely because no application has been made to bring his legal representatives on the record when no objection to that effect is raised by any one. A point of defence which has been wilfully or
deliberately abandoned by a party in a Civil Case, at a crucial stage when it was most
relevant or material, cannot be allowed to be taken up later, at the sweet will of the party which had abandoned the point, or as a last
resort or as an after thought. In fact, in a case where a point has been wilfully abandoned by a party, even if, in a given case, such a conclusion is arrived at on the basis of his conduct, it will not be permissible to allow that party to revoke 13
the abandonment if that will be disadvantageous to the other party."
18. In view of the above, the appeal would not abate for non- substitution of the widow of deceased defendant No.1 in presence of other defendants, who are sons of defendant No.1 and the widow.
19. Question No.(iii) is whether the appellate order is a nullity for non-substitution of widow of the deceased defendant No.1 in presence of other defendants, who are sons of deceased defendant No.1. For the reasons stated above, for non-substitution of widow of the deceased Defendant No.1 in presence of other defendants, the plea of nullity of the decree passed in the appeal is too technical a ground to set aside the judgment and decree passed by the learned Courts below.
20. Admittedly, the deceased defendant no.1 was not the sole defendant and his wife was not the only legal heir. The other defendants were the sons of the deceased defendant No.1. Had the deceased defendant was the sole defendant and his wife the only legal heir, the position would have been different. Neither before the appellate Court nor before the Executing Court, the wife of defendant No.1 has raised any grievance for her non-substitution. Even the other defendants before the appellate court have not raised any objection for non-substitution of the widow of defendant No.1.
21. It is also nobody's case that there is any conflict of right among the defendants including the widow of the deceased. Since widow of defendant No.1 is sufficiently represented by the other 14
defendants, who are none other than the sons of defendant No.1 principle of natural justice is fully complied with and the rights of the widow-mother is full protected.
Therefore, the appellate judgment is not a nullity for non- substitution of the widow of the deceased defendant No.1.
22. Question No.(iv) is as to whether the decree passed in appeal on 21.02.2004 by the District Judge has attained finality being not challenged in any higher forum. One of the grounds for rejecting the objection petition filed by the defendants in the final decree proceedings is that the objecting defendants have not challenged the appellate decree in the higher forum.
23. Law is well settled that if an authority, who has jurisdiction, passes an order which is improper or illegal, the same cannot be treated as void. It remains enforceable until it is set at naught in an appropriate proceeding by an appropriate authority [See Trilochan Singh & Anr. Vs. Commissioner of Land Records and Settlement, Orissa & Ors., 79 (1995) C.L.T. 507].
24. The Hon'ble Supreme Court in the case of State of Punjab and others vs. Gurdev Singh, Ashok Kumar, AIR 1991 SC 2219, held that the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires, the Court cannot give the declaration sought for. 15
25. In the words of Lord Diplock, "the order would be presumed to be valid unless the presumption was rebutted in competent legal proceedings by a party entitled to sue."
26. In Smith v. East Elloe Rural District Council, (1956) A.C. 736 at page 769 Lord Redcliffs observed: "An order even if not made in good faith is
still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceeding are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
27. In the instant case, the appellate decree dated 21.02.2004 remains enforceable until it is declared to be void or nullity by a competent court/authority.
28. Decisions relied upon by the learned counsel for petitioners are of no help to the petitioners in the instant case for the
29. Considering the case from any angle, this Court does not find any infirmity or illegality in the impugned order dated 05.10.2007 passed by the Civil Judge (Sr. Division), Bonai in T.S.No.21 of 1997 warranting interference by this Court.
30. In the result, the civil revision is dismissed. ..............................
Orissa High Court, Cuttack
The 3RD February, 2012/ssd.