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PATNA HIGH COURT
Raj Kishore Prasad, J.
Mt.Murti Goalin
Versus
Ram Briksha Gope
Appeal from Original Decree No. 504 of 1951 ;
Decided On : OCTOBER 03, 1958
ABATEMENT OF APPEAL - NON-SUBSTITUTION OF LEGAL REPRESENTATIVE - APPEAL ABATES IN ITS ENTIRETY - HINDU SUCCESSION ACT, 1956 - SECTIONS 8, 9, 14, 15 - INTERPRETATION AND APPLICATION.
Fact of the Case:
Sole appellant in an appeal died during the pendency of the appeal. An application was filed by the respondents for their transposition as appellants, claiming to be the sole heirs of the deceased appellant. However, they failed to mention the existence of another legal representative, the deceased appellant's sister, Mt. Gangia. Later, they filed another application seeking her substitution or addition as a party respondent.
Finding of the Court:
1. The appeal abated due to non-substitution of Mt. Gangia, the deceased appellant's sister, within the statutory period. 2. The omission to substitute Mt. Gangia was fatal, as she was a known legal representative whose unwillingness to join the appeal was not established. 3. The application filed by the respondents on 22-2-1958 could not be considered an application for substitution under Order 22 Rule 3 of the Code of Civil Procedure, as it was based on the false assertion that they were the sole heirs. 4. The appeal abated in its entirety, as the decree passed in favor of or against the plaintiff could not be varied in the absence of Mt. Gangia, and allowing the appeal at the instance of the respondents would result in two inconsistent decrees.
Issues: 1. Whether the appeal abated due to non-substitution of Mt. Gangia? 2. Whether the whole appeal abated or only the portion relating to Mt. Gangia? 3. Whether the application filed by the respondents on 22-2-1958 could be considered an application for substitution under Order 22 Rule 3 of the Code of Civil Procedure?
Ratio Decidendi: 1. Under Order 22 Rule 3 of the Code of Civil Procedure, when a party to a suit dies, leaving a number of persons as his legal representatives, it is desirable that all such persons should be substituted in his place. 2. If through some oversight or other, some of such persons are brought on the record and others are not, the estate is fully represented by those who are; those who are not may subsequently apply to be brought on the record, but there is no abatement. 3. However, if the omission to substitute a legal representative is mala fide or intentional, the appeal abates. 4. Under Section 14 of the Hindu Succession Act, 1956, a female Hindu in possession of property becomes the full owner thereof and can alienate it only in accordance with the provisions of the Transfer of Property Act. 5. Upon the death of a female Hindu intestate, her property devolves upon the heirs of her husband, as per the provisions of Section 15(1)(b) of the Hindu Succession Act, 1956.
Final Decision: Both the appeal and the cross-objection were dismissed on the preliminary objection that they were incompetent and, therefore, they were so dismissed, but there will be no order for costs to any party in any of them.
Raj Kishore Prasad, J.
1. In this appeal the sole question which arises for determination is whether the appeal has abated, because of non-substitution of Mt. Gangia, the admitted sister of Shyam Lal, husband of defendant No. 1, on the death of the sole appellant, defendant No. 1, on the 23rd January, 1958.
2. In order to appreciate the points raised, it is necessary to state a few facts:
3. There was one Sheo Prasad, who had four sons -- Raja Ram, father of the plaintiff; Pokhan Ram (defendant No. 2), father of defendants 4 and 5; Shyam Lal, husband of Mt. Murti, (defendant No. 1), the sole appellant; and Sheonandan (defendant No. 3), who died issueless. Shyamlal, husband of defendant No. 1, Mt. Murti, had a concubine named Jagtarni Kuer, who died, after executing a deed of gift, in favour of the plaintiff in respect of the properties mentioned in Schedules 1 and 2. The plaintiffs case was that both the properties belonged to Jagtarni Kuer, and, therefore, she had the right to execute the deed of gift in respect of those properties in favour of the plaintiff.
4. Schedule 1 lands stand recorded in the name of Shyam Lal, whereas Schedule 2 lands stand in the name of Jagtarni.
5. The plaintiffs suit was contested by defendant No. 1 who denied the plaintiffs allegation that Shyam Lal was the farzidar of Jagtarni in respect of schedule 1 land. Her case was that Schedule 1 land belonged to Shyamlal himself. Regarding schedule 2 land, the case of defendant No. 1 was that Jagtarni Kuer had sold it orally to Shyam Lal long ago, and, therefore, Jagtarni had no interest left in this property also which she could convey to the plaintiff by the deed of gift.
6. The court below decreed the plaintiffs suit in respect of Schedule 2 land, holding that it belonged to Jagtarni Kuer, and she had not sold it to Shyamlal, as contended by the defendant No. 1, and, therefore Jagtarni had the right to make a gift of it to the plaintiff. The court below, bow-ever, dismissed the suit in respect of Schedule 1 land holding that it belonged to Shyamlal, and he was not a mere farzidar of Jagtarni, as alleged, and, therefore, she had no right to make a gift of it in favour of the plaintiff.
7. Against the aforesaid judgment and decree, only defendant No. 1 preferred an appeal to this court regarding schedule 2 land, and there was also a cross-objection on behalf of the plaintiff in respect of schedule 1, land. During the pendency of the appeal, defendant No. 1, who was sole appellant in this court, died on the 23rd January, 1958. On the 22nd February, 1958, within the statutory period, a petition was filed by defendants 2, 4 and 5 for their transposition under order 1 Rule 10, Civil Procedure Code. In paragraph 8 of that petition, it was stated by them that they were the only heirs of the appellant, Mt. Murti, defendant No. 1, and as they were already on the record, they may be transposed to the category of the appellants from that of the respondents.
The fact that Shyamlal had also a sister, Mt. Gangia, as admitted now, was not at all mentioned in this petition, rather it was definitely suppressed. It is not denied that after the death of Mt. Murti, defendant No. 1, the sole appellant, her legal representatives would be the heirs of her husband, Shyamlal, and such heirs on the death of Mt. Murti, defendant No. 1, were only defendant No. 2 and his sister Mt. Gangia. It was further mentioned in the petition, just referred to, that Mt. Murti, defendant No. 1, appellant had orally surrendered all her interest in the property of her husband in favour of defendant 2 respondent No. 2, and his sons defendants 4 and 5 in 1958 on account of her old age and apprehending death any moment.
The respondents, therefore, claimed to be substituted in place of the sole appellant, on the ground, first, that they were her sole heirs, and, secondly, that they were the only persons who had interest in the properties in suit because of oral surrender from the appellant. A
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