A suit brought against a deceased person is a nullity and cannot be cured by substitution of legal heirs.

Sanjay Yadav, J.

1. With consent of learned counsel for the parties, the matter is finally heard.

2. Respondent filed a suit for recovery of possession of land bearing Araji No.62 Area 0.42 Acre Mouja Futaodhi Tahsil Raghraj Nagar District Satna against one Thakurdeen Singh, son of Devideen Singh Rajput. Later on, the plaintiff discovered that the sole defendant had already expired before filing of suit.

3. An application under Order 22, Rule 4 of the Code of Civil Procedure, 1908 was filed for substitution of his legal heirs. The trial Court exercising its power under Order 23, Rule 1 (3) CPC, permitted the plaintiff to withdraw the suit as it was of the opinion that the plaint was inhibited with "formal defect".

4. Sub-rule (3) of Rule 1 Order 23 CPC mandates -

"Rule 1. Withdrawal of suit or abandonment of part of claim.-...

(3) Where the court is satisfied, -

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. ..."

5. The question as to whether a suit brought against a person who is later discovered to have been dead at the time the suit was filed, can be said to have incurred a formal defect, which crops up for consideration in the present case need not detain us long as the issue has already been dwelt by the Division Bench of High Court of Mysore in C. Muttu v. Bharath Match Works AIR 1964 Kar 293, wherein it has been held :-

"6. In Mohun Chunder Koondoo v. Azeem Gazee Chowkeedar, 12 Suth W.R. 45 : 3 Beng LR AC 233 Sir Barnes Peatock C.J. who delivered the judgment of the Bench held that courts have no jurisdiction to decide the suit filed against a dead person and it is a nullity. This decision was followed by the Madras High Court in Veerappa Chetty v. Tindal Ponnen, ILR 31 Mad 86 and observedin the Madras case as follows :-

"It does not appear to have ever been suggested that the issue of a writ against a dead man could be anything but a nullity, and we see no reason for regarding the presentation of a plaint, which under our system corresponds to the issue of the writ, as anything more".

6. This decision was followed by Sadasiva Aiyar and' Napiet JJ., In Re : Arunachalam Chettiar, 30 Ind Cas 679 : (AIR 1916 Mad 440) and by Srinivasa Aiyangar, J. in Rasa Goundan v. Pichamuthu Pillai, 42 Ind Cas 539 : (AIR 1918 Mad 794 (1)). The High Court of Bombay took, the same view in Rampratab Brijiuohandas v. Qowrishankar Kashiram 85 Ind Cas 464 : (AIR 1924 : Bom 109). In that case Mull'a J. observed thus :

"If he (defendant) dies before the suit and a suit is brought against him in the name in which he carried on business, the suit is against a dead man and it is a nullity from its inception. The suit being a nullity, the writ of summons, issued in the suit, by whomsoever accepted is also a nullity. Similarly, any order made in the suit allowing amendment of the plaint by substituting the legal representative of the deceased as defendant and allowing the suit to proceed against him is also a nullity. It is immaterial that the suit was brought bona fide and in ignorance of the death of such person".

7. In Bejoy Chand Mahatap Bahadur v. Amulya Charan Mitra 24 Ind Cas 112 : (AIR 1914 Cal 895) a Division Bench of the Calcutta High Court held that the provisions as to the substitution of the heirs of a deceased defendant as parties to the suit in his place apply only to casts where the original defendant was alive at the date of the institution of the suit. In Sisir Kumar v. Manindra Kurnat Biswas, AIR 1958 Cal 681 the Division Bench of the Calcutta High Court followed the above decision and K.C. Das Gupta J.(as he then was) who delivered the judgment observ