Patna High Court
Ramsewak Mishra And Anr. vs Mt. Deorati Kuer And Ors. on 14 November, 1961
Equivalent citations: AIR1962PAT178, AIR 1962 PATNA 178
JUDGMENT R.K. Choudhary, J.
1. This is an appeal by defendants 84 and 85, and it arises out of a final decree passed in a partition suit. The suit for partition being Partition Suit No. 30 of 1943, was instituted by the plaintiffs-respondents first party in the Court of the Subordinate Judge at Muzaffarpur, and a preliminary decree was passed on the 12th of March, 1946. It appears that, after the arguments were over in the Court below and before the preliminary decree was passed, one of the plaintiffs, namely, 'Ramautar Singh, died on the 1st of March, 1946. The death of this plaintiff was not brought to the notice of the Court, and in the preliminary decree, that was prepared by the trial Court, the name of the said deceased plaintiff continued. He had left certain heirs and legal representatives who were already on the record of the case as co-plaintiffs in the suit. He had also left a widow, Mossammat Deorati Kuer, who, however, was net a party to the suit and was not brought on the record by way of substitution in his place. Thereafter, a final decree for partition was passed on the 22nd of December, 1949, and a separate takhta was carved out for all the plaintiffs of the partition suit.
The appellants, being dissatisfied with the takhta carved out for them, filed the present appeal in this Court impleading the widow of the deceased plaintiff Ramautar Singh and other remaining members of his joint family as respondents 1 to 7. They also filed an application in this Court for substitution of the widow of the said deceased plaintiff and a Division Bench of this Court on 8-1-1951, passed an order that the substitution petition be kept on record and that no further action was necessary. Mossammat Deorati Kuer, the widow of the deceased plaintiff, along with the other heirs and legal representatives of her deceased husband, appeared in this appeal by filing vakalatnama in November, 1952.
2. The appeal came up for hearing before Rai and U. N. Sinha, JJ. It was contended before their Lordships on behalf of the appellants that, as the widow of the deceased plaintiff Ramautar Singh had not been substituted in the- proceedings for the preparation of the final decree, the final decree was passed in favour of a dead person and was thus void and ineffectual and was liable to be set aside. This contention was overruled by Raj, J., who held that the decree passed in absence of the widow of the deceased plaintiff Ramautar Singh was not void and that his widow could be substituted in his place. He therefore, modified the final decree passed by the trial Court only to this extent that the name of Ramautar Singh was directed to be struck off and in his place the name of his widow, Mossammat Deorati Kuer, was directed to be inserted along with the other heirs and legal representatives of Ramautar Singh, who were already parties to the decree. Accordingly, the allotments made by the trial Court in the preliminary decree were allowed to stand and the final decree passed by the Court below was affirmed in other respects. U. N. Sinha, J., however, took a different view, and held that the non-substitution of the widow of Ramautar Singh before the final decree was passed affected the validity of the decree and it could not be maintained. He, therefore, allowed the appeal, and set aside the decree of the trial Court.
3. On difference of opinion between the two learned Judges on the point in question that fell to be decided in the case, this case has been placed before me for decision under Clause 28 of the Letters Patent of this Court.
4. It is too well established principle of law that a suit does not abate if a party dies after the passing of the preliminary decree. Counsel for the parties have not challenged this proposition of law, and, therefore in the present case the suit did not abate on account of the death of the plaintiff Ramautar Singh. Mr. Shreenath Singh, appearing for the appellants, has, however, contended that, the widow of Ramautar Singh not having been brought on the record before the passing of the final decree, no such decree could be validly passed in order to be binding on her. He has, therefore, submitted that, in order to have an effectual and valid final decree, it was incumbent upon the rest of the plaintiffs to have brought the widow of Ramautar Singh on the record in the proceedings for preparation of the final decree. It is also submitted that any final decree passed in favour of a dead person is null and void, and the decree passed in this case, therefore, has to be set aside. On behalf of the plaintiffs respondents it has been contended that the widow of Ramautar Singh was added as a respondent in this Court at the instance of the appellant's themselves, and she has appeared and supported the decree. She has made no complaint about the decree having been passed in her absence, and, therefore, it was not open to the appellants to contest the validity of the decree on that ground. It has also been submitted that the Court could make the widow a party to the appeal in order to make the final decree effectual, if there was any inherent defect in it on account of the non-substitution of the widow. In my opinion, the contention raised on behalf of the appellants is sound and must prevail.
5. There are various provisions in the Code of Civil Procedure for bringing a party on the record of a case. Order 1, Rule 10 of the Code of Civil Procedure empowers the Court to add any person as a party to the suit in proper cases for the effective decision in the case. Rules 3 and 4 of Order XXII of the Code provide for substitution of the heirs and legal representatives of a deceased plaintiff and defendant during the pendency of the suit, and the above rules read with Rule 11 of that Order, provide for substitution of the heirs and legal representatives of the deceased appellant or respondent. Rule 10 of Order XXII of the Code mates a provision for bringing on record a person, with permission of the Court, on whom the interest of any of the parties to the suit has devolved during the pendency of the suit. The said rule, read with Rule 11 of that Order, makes provision for "addition of such a party if the devolution has been during the pendency of the appeal. The substitution of the heirs of a deceased party in a suit after the passing of the final decree is not governed either by Order 1, Rule 10 or Order 22, Rules 3 and 4 of the Code and it is only Rule 10 of Order XXII under which' such a substitution could be made. As already observed, there is no abatement on account of the death of the party after a preliminary decree. Therefore, Rules 3 and 4 of Order XXII could have no application in case of the death of a party after a preliminary decree, and the case is governed by Rule 10 of Order XXII of the Code of Civil Procedure, If any authority is needed, reference may be made to a Division Bench decision of this Court in Shanti Devi v. Khodai Prasad Singh, AIR 1942 Pat 340, where it was held that Rules 3 and 4 of Order XXII do not apply in case of the death of a party after a preliminary and before the final decree in a mortgage suit, and that the subsequent arrangement for continuation of the suit must be governed by Order XXII, Rule 10 of the Code of Civil Procedure. Though the above decision was in regard to a mortgage suit, yet, in my opinion, the same principle applies to a partition suit so far as the question of substitution of the heirs and legal representatives of a party dying after the preliminary decree is concerned.
6. It has been contended on behalf of the plaintiffs respondents that this Court could make the substitution of the widow under the provisions of Order XXII, Rule 10 of the Code of Civil Procedure. That argument, however, cannot prevail in view of the fact that for such a case arising in an appeal a specific provision has been made in Rule 11 of Order XXII. Reading Rules 10 and 11 of Order XXII together, the position in law, in my opinion, seems to be clear that, if a party dies after the preliminary decree, his heirs and legal representatives can be brought on the record by the original Court dealing with the proceeding for preparation of the final decree, and not by the appellate Court before which an appeal has been preferred against the final decree passed by the trial Court. The substitution, therefore, could be made only by the trial Court, which passed the final decree, and not by this Court sitting in appeal over the decree of that Court.
7. The effect of the non-substitution of the widow before the final decree is to render the decree null and void, because a decree either for or against a dead person is absolutely ineffectual and invalid. The above view gains support from a decision of the Assam High Court in Ajoy Kumar Mukhopadhyaya v. Puspabala Chaudhury AIR 1953 Assam 54. " That was a suit for accounts, and a final decree was passed in that case after the death of the defendant who was alive when the preliminary decree was passed but without malting his heirs and legal representatives parties to the proceeding of the final decree. There it was held that the final decree was void and a nullity. The view taken in AIR 1942 Pat 340, referred to above, also seems to support this proposition of law. While considering the question of law whether in the case of a death of a party after the preliminary decree in a mortgage suit the substitution of his heirs and legal representatives would be governed by Rules 3 and 4 of Order XXII or Rule 10 of that Order, their Lordships observed that the rule is that on the one hand, no final decree can be passed without the representative of the deceased party being brought on the record; but on the other hand, that Rule 10, and not Rules 3 and 4 of Order XXII of the Code of Civil Procedure are to be regarded as governing the procedure for making the necessary substitution. It is, therefore, manifest that the final decree passed in the instant case in the absence of the widow of Ramautar Singh is null and void and has to be set aside. I, accordingly, agree with the view taken by U. N. Sinha, J. that the appeal should be allowed.
8. The result, therefore, is that the appeal is allowed, the final decree passed by the trial Court is set aside, and the case is sent back to that Court for a fresh decision in accordance with law after giving opportunity to the plaintiffs respondents to bring on record the widow of the deceased plaintiff Ramautar Singh, after hearing the parties. The costs of this appeal will abide the final result,