Madras High Court
P. Mani vs P. Viswanathan And Anr. on 23 March, 1990
Equivalent citations: (1990)2MLJ414
JUDGMENT Ratnam, J.
1. The third defendant in C.S. No. 353 of 1987 has preferred this appeal against the dismissal of Application No. 5617 of 1989 filed by him to transpose him as the plaintiff in the suit and to permit him to continue to suit, subject to his obtaining letters of Administration with the will annexed to the last Will and Testament dated 17-9-1986 of his deceased mother Alamelu Ammal, the plaintiff in the suit.
2. In C.S. No. 353 of 1987, Alamelu Ammal, the mother of the appellant as well as the respondents herein, had prayed for a declaration of her title to the A schedule property (forming part B schedule) and for recovery of possession of the same with past and future mesne profits or in the alternative, for partition and separate possession of a fourth share in the B schedule property and for recovery of past mesne profits in a sum of Rs. 51,870 and future mesne profits as well. According to the case of the plaintiff in the suit, the suit property belonged to her father-in-law Kanniappa Gramani and he had executed a settlement deed in 1937 giving a life interest in favour of his son Ponnusami Gramani, the husband of the plaintiff, and the plaintiff and thereafter the remainder in favour of the sons of Ponnusami Gramani absolutely. In 1973, the plaintiff and her husband Ponnusami Gramani released their life interest in favour of their four sons, viz., the appellant and respondents 1 and 2 herein another Muthusami, Subsequently, on 17-3-1979, a partition was effected among the plaintiff and her sons and in that partition, one of the sons, viz., Muthusami was allotted the front portion of the premises bearing door No. 14 Subbaraya Gramani St., Chetput, Madras and another property bearing door No. 115 V.V. Koil St., was kept in common to be sold by her for the discharge debts and the balance, if any, to be divided among the parties. Muthusami died on 9-1-1980 unmarried and the plaintiff claimed that she was his only heir and that though attempts were made to settle the disputes with reference to the properties of Muthusami, they did not fructify and the plaintiff, therefore, instituted the suit against the appellant as well as the respondents herein praying for the reliefs set out earlier. During the pendency of the suit, Alamelu Ammal, the plaintiff in the suit, died on 26-10-1988 leaving behind her the appellant and the respondents herein as well as six daughters and two grand-daughters through a pre-deceased daughter. Alamelu Ammal, while in a sound disposing state of mind, is stated to have executed a Will on 17-9-1986 bequeathing the properties belonging to her as the heir of deceased Muthusami, in favour of the appellant. The appellant filed O.P. No. 503 of 1989 for grant of Letters of Administration to him in respect of the Will dated 17-9-1986 of deceased Alamelu Ammal, the plaintiff in C.S. No. 353 of 1987. According to the appellant, he was entitled to succeed to the estate of deceased Alamelu Ammal and, therefore, he prayed that she he should be transposed as the plaintiff in the suit, subject to his obtaining Letters of Administration with the Will annexed. The application was dismissed by the learned Judge sitting on the Original Side of this Court stating that the applicant cannot now be transposed as plaintiff and that after the disposal of O.P. No. 503 of 1989 he may file a fresh application. It is the correctness of this order that is questioned in this appeal.
3. Learned Counsel for the appellants submitted that as some of the legal representatives of deceased Alamelu Ammal were parties to the suit, though in the capacity of defendants, there was no question of any abatement of such of the suit and the dismissal of the application for transposition was, therefore, erroneous. Reliance in this connection was also placed upon the decisions of the Supreme Court in Mahabir Prasad v. Jageran , Jayaram Reddi v. Revenue Divisional Officer and Thona Varkey v. Krishnan Nair . It was also contended that the suit in C.S.No. 353 of 1987 was one for partition and in such a suit, even a defendant should be considered to occupy the position of a plaintiff, and, therefore, there cannot be any valid objection whatever for the transposition of the appellant as the plaintiff in the suit. On the other hand, learned Counsel for the respondents submitted that Alamelu Ammal died on 26-10-1988, but the application for transposition was filed by the appellant only 23-11-1989, and the suit had, in the meanwhile, abated and without seeking a condonation of the delay in setting aside the abatement, the appellant cannot be permitted to obtain the reliefs prayed for by him in the application and, therefore, the dismissal of the application cannot be taken exception to.
4. There is no dispute that the plaintiff in the suit Alamelu Ammal died on 26-10-1988 and that even that appellant and the respondents herein were parties to the suit instituted by her, having been impleaded as defendants 1 to 3. In other words, some of the legal representatives of deceased plaintiff in C.S. No. 353 of 1987 were already parties to the suit, though in the capacity of defendants. In the event of death of a party in a proceeding in which one or more of the legal representatives are already on record in another capacity, all that would be necessary is that by an application made, the person already on record in a different capacity should also be recorded as heir and legal representatives of deceased person. This would be so even if there are other legal representatives and an application for impleading them is not taken out within the period of limitation and the proceedings will not abate. That this is the position is well settled by the decisions relied on by the learned Counsel for the appellant. In Mahavir Prasad v. Jagram , the Supreme Court pointed out that where a party to a proceeding dies and the legal representatives of the deceased party is already shown in array of parties in another capacity, it would only be necessary to describe him as the heir and legal representatives of the deceased person and that the proceeding will not abate even if there are other heirs and legal representatives and an application for bringing them on record is not filed within the period of limitation prescribed under the Limitation Act. To similar effect is the decision reported in Jayaram Reddi v. Revenue Divisional Officer , where the court pointed out at page 1403 as follows:
The principle deducible from this decision of the court is that where one of the legal representatives of the deceased party is before the Court at the time when the proceedings is heard but in another capacity, it is immaterial whether he is described as such or not even if there are other legal representatives, the cause will not arise.
Again, in Thona Varkey v. Krishna Nair , the sole appellant in a second appeal died leaving behind him his son and wife, who were already patties to the second appeal. The wife filed an application for transposing her as an additional appellant in the place of the deceased appellant. An objection was raised that the presence of the son and the wife as respondents in the appeal would not prevent abatement and the application for transposition must be dismissed, as there was no application to set aside the abatement. In rejecting this objection, reference was made to the following observations of Khalid, J. in Palikandi Rohibi v. Padmini I.L.R. (1978) 2 Ker. 311.
The ultimate position therefore is that, since all the legal representatives of deceased Thalo, the original appellant, were on the record, failure on the part of the legal representatives in not having the part of the legal representatives in not having filed a petition in time, cannot be visited with dismissal of the appeal. All that was necessary for them was to move foar their substitution in the place of the original appellant, which they have done by this application....The position is now well settled that in appropriate cases, not only can a court allow the application for transposition but the court in the interests of justice, allow persons on the array for he defendants or respondents to be transposed as plaintiffs or appellants.
It was also held that as the legal representatives of the appellant were already on record, they cannot be made parties over again and there was therefore no abatement and the application to record them as the legal representatives, though made ninety days after the death, would not be barred by limitation. Applying the principles laid down in the decisions referred to above, it is seen that in this case also the legal representatives of the deceased plaintiff were already on record, though as defendants, and all that the appellant prayed was that he should be transposed as a plaintiff in order to enable him to continue the suit, as he had succeeded to the entire interest of his deceased mother, which she had agitated in the suit, under her Will dated 17-9-1986, with reference to which the appellant had also taken out proceedings in O.P.No.503 of 1989 for Letters of Administration and there could, therefore, be no question of abatement at all. It follows that there was no need for the appellant to have prayed for the condonation of the delay in setting aside the abatement or even to set aside the abatement and the appellant was entitled to be transposed as a plaintiff in the place of his deceased mother. The same conclusion would also follow viewing the position of the appellant as a party to a suit for partition where in every defendant will also occupy the position of a plaintiff in relation to the relief of partition. It would all the more be so in this case where the appellant claims to have secured under the will of his mother her entire interest, the right to partition which she had agitated in the suit and under these circumstances the refusal to transport the appellant as the plaintiff in the suit cannot be sustained. We, therefore allow the appeal and set aside the order of the learned Judge and direct that the appellant herein who is the third defendant in the suit, will be transposed as the plaintiff in order to enable him to continue the suit C.S. No. 353 of 1987, subject to his obtaining Letters of Administration with the Will dated 17-9-1986 annexed, as prayed for by the appellant. There will be no order as to costs in this appeal.