Andhra HC (Pre-Telangana)
Datla Chandraiah (Died) By Lr And Anr. vs Kothalanka Durga Vara Prasad Rao And ... on 3 July, 2002
Equivalent citations: 2002(5)ALD294, 2002 A I H C 4259, (2002) 5 ANDHLD 294 (2003) 1 ICC 459, (2003) 1 ICC 459
JUDGMENT P.S. Narayana, J.
1. A novel, but an interesting question arises for consideration in this appeal, in view of the peculiar facts of the case.
2. The legal representative of the 1st appellant who was brought on record in this appeal, who ought to have been added as a party to the suit being a necessary party but had not been added as a party, raised an objection relating to the validity and the binding nature of the judgment and decree so far as it relates to the plaint A Schedule property is concerned made in OS No. 52/82 on the file of Subordinate Judge, Bhimavaram.
3. The 1st respondent in the present appeal is the plaintiff in OS No. 52/82 on the file of Subordinate Judge, Bhimavaram and the 1st defendant in the suit one Smt. Datla Chandraiah who had preferred the present appeal died pending appeal and her daughter Kalidindi Venkata Subbamma was brought on record as appellant No. 2 as legal representative of the deceased appellant No. l by an order dated 10-10-1995 in CMP No. 13437/95. CRP No. 1685/2002 also was filed by the same appellant, aggrieved by the passing of final decree for division of properties made in IA No. 1992/99 in OSNo. 52/82 on the file of Senior Civil Judge, Bhimavaram and since both these matters relate to the plaint A Schedule property in the said suit, both are being disposed of by this Common Judgment.
4. As already referred to supra, AS No. 174/90 was filed by the 1st defendant- the 1st appellant who died pending the appeal, and her daughter as legal representative was brought on record to further prosecute the litigation.
5. The 1st respondent/plaintiff filed the suit for declaration that the plaintiff in the suit and 6th and 14th defendants are entitled to half share in plaint A and B schedule properties after the death of their mother under settlement deed dated 14-4-1958 with vested remainder in the half to the life time of the 7th defendant and also for the relief of partition of plaint A and B schedule properties into four equal shares by metes and bounds allotting one such share to plaintiff, one to 6th defendant and one to 34th defendant and the remaining two shares to 7th defendant for enjoyment-by defendants 1 to 5 during the life time of 7th defendant and to deliver the same after ejecting the defendants therefrom and also to grant a decree for past profits and future profits. The learned Subordinate Judge, Bhimavaram - Senior Civil Judge, Bhimavaram, on the respective pleadings of the parties had settled the following issues:
1. Whether the plaintiff is entitled to the declaration and partition prayed for ?
2. Whether the plaintiff is entitled for any profits and if so to what profits as against the defendants 3 and 4 ?
3. Whether the Kothalanka Venkateswara Rao is dead or is deemed to be dead ?
4. Whether the suit valuation is correct ?
5. Whether the suit is in time ?
6. Whether the defendants 3 and 4 have perfected their title also by adverse possession ?
7. Whether the suit is bad for nonjoinder of parties or mis-joinder of parties?
8. Whether the defendants 3 and 4 are entitled to exemplary costs ?
9. To what relief?
After recording the evidence of PWl to PW7 and DW1 to DW7 and making Exs.Al to A24 and Exs.B1 to B57 ultimately decreed the suit for declaration that plaintiff, 6th defendant and 14th defendant are entitled to half of A Schedule property alone on the death of their mother Kamalavathi Kameswaramma with vested remainder in the other half after the life time of 7th defendant and a preliminary decree was passed for division of A Schedule property alone into two major halves and divide further one such half into three equal shares and deliver one such share to plaintiff, 6th defendant and 14th defendant each and similar partition with regard to the remaining half after the life time of 7th defendant and the plaintiff, 6th and the 14th defendants were entitled to mesne profits on half of plaint A Schedule property alone from the date of filing of the suit, determined by filing a separate application in this regard. The prayer for past profits was negatived and also the relief relating to plaint B Schedule property was totally negatived and aggrieved by the same inasmuch as the 1st defendant was concerned with plaint A Schedule property only she had preferred the present appeal and pending appeal inasmuch as she died, her daughter was brought on record as legal representative.
6. To avoid the repetition of pleadings so far as they relate to the present controversy, they will be dealt with at appropriate time.
7. As far as CRP No. 1695 of 2002 is concerned, as already referred to supra, it was filed as against the passing of final decree in pursuance of preliminary decree made in OS No. 52 of 1982 on the file of senior Civil Judge, Bhimavaram.
8. Sri Suryaprakash Rao the learned Counsel representing the 2nd appellant-legal representative in the present appeal, with all vehemence had made the following submissions. At the outset, the learned Counsel had made it clear that the subject-matter of the present appeal is only in relation to plaint A schedule property. The learned Counsel also had drawn my attention to the oral and documentary evidence on record to this limited extent and had pointed out that under Ex.A24 Kothalanka Subbamma had executed a settlement deed dated 14-4-1958 giving half share in favour of her son. The learned Counsel had further pointed out that the present appellant who was brought on record as the legal representative, in fact had purchased this property which is not at all in dispute and under Ex.B4 settlement deed she had given only life interest to the 1st appellant, her mother. But though a specific stand was taken in this regard by the 1st appellant as the 1st defendant in the suit and though she is a necessary party to the suit she was not impleaded as a party in the said suit. The learned Counsel also would maintain that there is a specific issue framed in this regard i.e. Issue No. 7 and the trial Court had totally erred in decreeing the suit in relation to plaint A schedule property in the absence of a necessary party. The learned Counsel also had drawn my attention to Order I, Rule 3 and also Order 1, Rule 9 CPC in this regard and also had placed reliance on Vamamamlai Thevar and Ors. v. Narayana Pillai, 1968 MLJ 622, Chuba Temsu AO v. Nangpongcr, AIR 1994 Gau. 110, Subbaraya v. Seetha Ramuswamy AIR 1933 Mad. "664, N. Venkaieswarly v. P.Pullamma. . The learned Counsel also had further contended that a distinction has to be drawn between a legal heir and a legal representative and the present appellant was brought on record only for the limited purpose of prosecuting the litigation and hence it cannot be said at any stretch of imagination that the 2nd appellant also is found by the said decree. The learned Counsel also had drawn my attention to the definition of legal representative under the Code of Civil Procedure and had placed reliance on Custodian of Branches of Banco National Ultramarino v. Nalini Bai Naique, . The learned Counsel also had brought to my notice that the present legal representative already had instituted suit OS No. 72/96 for declaration of title and injunction relating to the self-same property on the file of Senior Civil Judge, Bhimavaram and the same is pending disposal. The learned Counsel also had drawn my attention to Sections 34 and 35 of Specific Relief Act 1963 and also certain interlocutory proceedings and the orders made thereon in the suit. The learned Counsel further contended that here is a peculiar case where the legal representative is acting in dual capacity, one as a necessary party to the suit itself and yet another as a legal representative for the purpose of prosecuting the litigation filed by the 1st appellant/lst defendant. The learned Counsel also had contended that there is no question of granting mesne profits unless the possession is established to be unlawful and the learned Counsel placed reliance on Lucy Kochuvareed v. P.Mariappa Gounder, AIR 1979 SC 1214, in this regard. The learned Counsel also had maintained that the result in CRP No. 1685/2002 will depend upon the decision which may be rendered in the main Appeal.
9. Sri T.S. Anand, the learned Counsel representing the 1st respondent/plaintiff on the other hand had emphatically contended that so as to defeat the legal rights of his party, the 2nd appellant is now taking a technical defence. The learned Counsel also had pointed out that the 1st defendant filed a written statement and a specific stand had been taken by her in paragraph-6 that she was the absolute owner thereof. The learned Counsel also had stated that there is no plea regarding non-joinder of necessary parry and the plea was only a vague plea. The learned Counsel further submitted that there cannot be variance between pleading and proof and the matter was decided, on the specific stand taken by the 1st defendant in the suit. The learned Counsel placed strong reliance on Allam Gangadhara Rao v. Gollapallt Gangarao, . The learned Counsel further contended that the legal representative in a litigation cannot take a different stand from that of the original party and in the light of the specific stand taken by the mother the daughter is bound by the same and the mere fact that she was not impleaded as a party is of no consequence. The learned Counsel also had pointed out that the fact that at the relevant point of time the 1st defendant alone was in possession of the property also is not in dispute and at any rate the defence or interest, if any of the daughter, the present appellant, had been well protected by the mother as her representative and inasmuch as this party was effectively represented she cannot be permitted now to contend that the said Judgment and decree are not binding on her. The learned Counsel also had brought to my notice that the plaint B schedule property is totally different and a separate appeal is pending relating to the same which has nothing to do with the present dispute since this appeal is concerned with only plaint A schedule property. The learned Counsel placed reliance on Vidyavathi v. Manmohan, 1995 (2) APLJ 84 (SC). The learned Counsel also had contended that inasmuch as CRP No. 1685/2002 was filed as against the final decree proceeding, no doubt the decision in the said CRP will depend on the result in the main appeal. But however it was contended that the 2nd appellant in the appeal had filed the said CRP as against the passing of final decree and inasmuch as a final decree also is a decree within the meaning of Section 2(2) of the Code of Civil Procedure, as against the same, the CRP under Section 115 CPC is not maintainable and hence the said remedy is a misconceived remedy.
10. Heard both the Counsel at length in both the matters and also perused the material available on record.
11. In the light of the respective contentions of the parties, the following Points arise for consideration in these matters:--
(a) Whether the Judgment and decree in OS No. 52/82 on the file of Senior Civil Judge, Bhimavaram are binding on the 2nd appellant?
(b) What is the effect of the 2nd appellant coming on record as legal representative of the 1st appellant/ 1st defendant ?
(c) Whether the 2nd appellant is a necessary party to the suit ?
(d) Whether CRP No. 1685/2002 is maintainable ?
(e) To what relief ?
12. For the purpose of convenience. Points (a) to (c) those Points are discussed together.
13. The dispute in the present appeal is only relating to plaint A schedule property. The 1st respondent/plaintiff had filed the suit for the reliefs already specified supra making the following averments in the plaint.
14. Plaintiff, defendants 6 and 14 are the sons of 7th defendant. A and B schedule properties originally purchased by adoptive mother of 7th defendant, Smt. Kothalanka Subbamma from Terragopu Satyanarayana and Ors. On 14-4-1958 late Smt. Kothalanka Subbamma executed a settlement deed in respect of the property. Under it, she reserved her life interest in item II of both A and B schedule properties with further life interest in item II of both A and B schedule properties, with further life interest in the same with 7th defendant and his wife Kamalavathi and the vested remainder to the male children of 7th defendant. In respect of item I of A and B schedule property, she conveyed life interest to 7th defendant and his wife and vested remainder to the male issues of 7th defendant. The right of even sale is prohibited during the life time of herself, 7th defendant' and his wife. These three people can only enjoy the usufruct over this. Kothalanka Subbamma died in the year 1969. Consequently the 7th defendant and his wife Kamalavathi became entitled to the life interest in A and B schedule properties. Kamalavathi died in the year 1972. Consequently the 7th defendant became entitled to enjoy half of A and B schedule properties and other half fell to plaintiff, defendants 6 and 14 with absolute rights.
15. The plaintiff came to know that A schedule property was purchased by 1st defendant from late Kothalanka Subbamma and D.7 and she is now in possession and enjoyment of the same. He also learnt that parts of B schedule properties were purchased by defendants 2 to 5 and they are enjoying the same. Kothalanka Subbamma or 7th defendant have no absolute interest in A and B schedule properties and any sale effected by mem will not enure beyond her lifetime and after the death of late Kamalavathi half the interest in A and B schedule property should devolve upon plaintiff and defendants 6 and 14.
16. The plaintiff and D6 caused a notice on 28-4-1976 to defendants to 3 and 5 calling upon them to partition the suit A and B schedule properties. Defendants 2 and 3 gave evasive replies that they purchased the property exclusively belonging to Kothalanka Subbamma and 7th defendant for valuable consideration. Insofar as B schedule property is concerned, the plaintiff submits that part of R.S.No. 446/3 was sold to D.N.R. College, Bhimavaram, in the year 1946 by Kothalanka Subbamma and D7, by mistake, the entire exten was included therein that Ac.0.25 cents covered by residential house of late Kothalanka Subbamma continued to be in exclusive possession and enjoyment notwithstanding sale in favour of the college. She never claimed any right or interest in Ac.0-25 cents in possession. The mistake was discovered in the year 1965 when D.N.R. College executed a sale deed at the request of Kothalanka Subbamma and D.7 in their favour to avoid any future claims by the college authorities. The possession of title was never conveyed to the college. The sale deed by D.N.R. College was executed only in recognition of her exclusive title to the B schedule property and she always enjoyed it paying municipal taxes, getting it repaired in her own right. Though she executed settlement deed on 14-4-1958, even titled house in B schedule property was constructed by Kothalanka Subbamma in 1962, she alone is the rightful owner and she has got only life interest as per the settlement deed dated 14-4-1958. So, sale of this property also will not go beyond her life time.
17. 'A' schedule property is a very fertile land capable of yielding two crops a year, 'B' schedule property which is a house and site fetches normally a rent of net less than Rs. 500/- per month. After the death of Kamalavathi, plaintiff, 6th and 14th defendants are entitled to half the B and A schedule properties and they are entitled for profits also. But the claim is restricted to only three years prior to the institution of the suit claiming Rs. 1,500/-per acre on A schedule property and Rs. 500/-per month on B schedule property. So, the suit is instituted for declaration that the plaintiff, defendants 6 and 14 are entitled to half of A and B schedule properties after the death of their mother Kamalavathi in 1972 with vested remainder in other half after the life time of 7th defendant and for a consequential relief of partition of past and future profits.
18. Defendants 1 and 9 filed written statement which was adopted by defendants 8, 10 to 12 and 13 and no doubt defendants 3 and 4 filed a separate written statement and the 5th defendant also filed a separate written statement. Likewise, defendants 6 and 14 also filed separate written statements, but however inasmuch as the present appeal relates to the plaint S schedule property only it may be sufficient to have a glance at the pleading of the 1st defendant/ 1st plaintiff, the allegations are as hereunder:
19. The Ownership and the execution of settlement deed dated 14-4-1958 by Kothalanka Subbamma had been denied. It was further pleaded that the plaintiff must also prove that Kothalanka Subbamma died in the year 1969 and Kamalavathi died in the year 1972 etc, Smt. Kalidindi Venkata Subbamma, wife of Venkateswara Raju purchased A schedule property from Kothalanka Subbamma under a registered sale deed dated' 15-3-1963 for a valuable consideration of Rs. 6,000/- along with standing dalwa crop. The vendor discharged a mortgage debt of Smt. Arimilli Venkatalakshmi dated 2-6-1992 from out of the sale consideration and the same was obtained by the vendee as vouchers of the sale deed. Smt.Kalidindi Venkata Subbamma in her turn executed a registered settlement deed in respect of the property purchased by her in favour of 1st defendant, who is no other than her mother on 17-3-1963. Ever since she is in possession and enjoyment of Ac. 1-86 cents of land in R.S.No. 467/3 shown as A schedule.
20. The deceased 2nd defendant purchased an extent of Ac.0-14 cents in R.S.No. 446/3 within the boundaries :
East: Site of Vardanapu Martamma etc;
South : Public road, West: D.N.R. College Girl's.hostel;
North : Site of Guddati Subbarao 's wife, with tiled house bearing Municipal Assessment No. 425/1 under a registered sale deed dated 17-10-1967 for a valuable consideration of Rs. 12,800/- from Kothalanka Perayya Sastry and Smt. Kothalanka Venkata Subbamma. The sale consideration was utilised to discharge mortgage and other debts. The 2nd defendant constructed a terraced building in a portion of the said site adjoining D.N.R. College Girls Hostel investing lakhs of rupees. The 2nd defendant died intestate. Defendants 8 to 12 being the Class I heirs of 2nd defendant, succeeded to the suit property which happens to be part of B schedule property. The 2nd defendant and after her death, defendants 8 to 12 have been in uninterrupted possession and enjoyment of it with absolute rights.
21. Plaintiff, defendants 6 and 14 cannot question the truth or validity of the sale deeds. The defendants are not, aware that 7th defendant has no right in the suit property beyond their life time and they cannot sell it to anybody. For the registered notice issued by plaintiff and D6 dated 28-4-1976 the 2nd defendant issued a reply notice with correct set-off facts. It is also denied that by mistake Kothalanka Subbamma included Ac.0-25 cents of site with her residential house in the sale deed executed in favour of D.N.R. College and that she always held possession of the property and in recognition of it the property was reconveyed to her and that she constructed tiled house in 1962 and that it fetches a rent of Rs. 500/- per month.
The valuation of the property is not correct. The 2nd defendant and her legal heirs perfected their title by adverse possession also. The suit is bad for non-joinder of Smt. Kalidindi Venkata Subbamma as party to the suit. Defendants 3 and 4 are not necessary parties to the suit. The suit is bad on that score. The suit may be dismissed with exemplary costs of defendants 1, 8 to 13.
22. As already referred to supra, the pleadings of the other parties are not very essential. However, it is suffice to state that they also reiterated virtually the same stand.
23. On the respective pleadings of the parties, the issues which had been settled already had been referred to supra and ultimately the suit was decreed in relation to the plaint A schedule property.
24. One Kothalanka Subbamma was the original absolute owner of the property and she is the paternal grand mother of the plaintiff, 6th defendant and 14th defendant and the 7th defendant is the father and adopted son of Kothalanka Subbamma. Ex.Al is the certified copy of the sale deed dated 27-6-1935 under which Kothalanka Subbamma purchased A schedule property. Ex.A2 is the registered mortgage redemption deed discharging the debt of Kothalanka Subbamma relating to the said land and the said Kothalanka Subbamma executed Ex.A24 settlement deed on 14-4-1958 whereunder she has reserved life interest in item No. II of plaint A and B schedule properties with further life interest to 7th defendant and his wife and his wife Kamalavathi with vested remainder to male issues of the 7th defendant and in respect of item I of A and B schedule properties, she conveyed life interest to 7th defendant and his wife and vested remainder to the male issues of the 7th defendant and Kothalanka Subbamma and the 7th defendant and his wife Kamalawathi had no rights of alienation over the property and they have a right to enjoy the property for their life time. The said Subbamma died on 30-11-1967 and Ex.Al6 is the certificate. Likewise, Kothalanka Kameswaramma died on 1-2-1971 as per Ex.A17 certificate and thus defendants 6 and 14 became entitled to the share of Kothalanka Kameswaramma in the plaint schedule properties to an extent of half share. The 7th defendant should enjoy the remaining half during his life time and the vested remainder would devolve upon the plaintiff, defendants 6 and 14. Defendants 1 to 5 in the suit are the purchasers of both A and B Schedule properties and the 2nd defendant died pending litigation and his legal representatives were brought on record as defendants 8 to 13. Insofar as plaint A schedule property is concerned after execution of Ex.A24 settlement deed, Kothalanka Subbamma sold it to Smt. Kalidindi Venkata Subbamma, the 2nd appellant herein, who in turn executed registered settlement deed in respect of the same property in favour of her mother, the 1st defendant in which only life interest was given. The other oral and documentary evidence may not be of much relevance. But however, the 1 st appellant/1 st defendant had deposed as DW1 that under Ex.Bl sale deed dated 15-3-1963, Kothalanka Subbamma sold the entire Ac. 1-86 cents, the plaint A schedule property, to her daughter Venkata Subbamma for discharging the mortgage debt of one Ramalingeswar Rao and pronote debt of one Venkata Lakshmi and the discharge mortgage bond and pronote were marked as Ex.B2 and Ex.B3. The said witness also further deposed that Kalidindi Venkata Subbamma had conveyed the same in her favour on 17-3-1963 by means of a settlement deed marked as Ex.B4 and ever since they have been cultivating the same by paying land revenue and the receipts are marked as Ex.A5. Ex.B6 is the original, document of Kothalanka Subbamma under which she purchased this property from Satyanarayana and his undivided sons and the registration extract already was marked as Ex.A1. While the land was under Kothalanka Subbamma it was mortgaged to Kameswararao to discharge her duties and Ex.B7 is the discharge mortgage bond dated 27-4-1960. She also discharged pronote debt by contracting the said mortgage debt. The discharge promotes are marked as Ex.B8 and Ex.B9.
25. The son-in-law of DW1 one Kalidindi Venkateswararaju was examined as DW2 and had supported his mother-in-law DW1. At the outset it can be stated that both the Counsel had placed strong reliance on the pleading of the 1st defendant i.e., paragraph-6 of the written statement. A serious attempt was made by the teamed Counsel representing the "1st respondent/plaintiff to convince the Court that the plea taken relating to the aspect of non-joinder of necessary party was only a vague plea and in fact in paragraph-15 of the written statement it was pleaded:
"Defendants 1 and 2 and the successors-in-interest of the 2nd defendant have perfected their title by adverse possession also in respect of the said property. This suit is bad for non-joinder of Smt. Kajidindi Venkata Subbamma, donor of the 1st defendant etc".
Apart from this pleading, the learned Counsel for the 1st respondent/plaintiff also had drawn my attention to the specific portion in paragraph-6 of the written statement wherein it was pleaded:
"Again the said Smt. Kalindi Venkata Subbamma in her turn executed a registered settlement deed dated 17-3-1963 in respect of the said property in favour of the 1 st defendant, who is no other than her mother. Since then onwards plaint 'A' schedule which is Ac. 1-86 cents of wet land in R.S.No.467/3 of Bhimavaram is in continuous and uninterrupted possession and enjoyment of the 1st defendant and she has absolute rights over it."
On the strength of the stand taken by the 1st appellant/lst defendant, the learned Counsel for the 1st respondent/plaintiff had made an attempt to convince the Court that though the 2nd appellant was not impleaded as a party in view of the fact that the 1 st appellant/1 st defendant had taken a specific stand in this regard and had defended the action as a representative of the daughter and further DW2 also was examined, there is no illegality committed by the trial Court in passing the decree, much less any prejudice will be caused to the 2nd appellant and hence it cannot be said that the judgment and decree, so far as they relate to the plaint 'A' schedule property, is bad for non-joinder of necessary party - the 2nd appellant, who came on record as legal representative in the present appeal. This stand taken by the learned Counsel cannot be accepted for reasons more than one, which are discussed infra. It is not in dispute that the owner of the plaint A schedule property in view of the registered sale deed Ex.Bl, dated 16-3-1963, is Kalidindi Venkata Subbamma and it is also not in dispute that she had executed Ex.B4 settlement deed in favour of the 1st appellant/lst defendant who is no doubt no other than her mother giving only life interest and reserving a right of reversion with her. It is not as though the said fact was not brought to the notice of the 1st respondent/plaintiff and in fact a specific plea was taken in this regard and an issue also was framed. The word or expression "reversion" is defined in Oxford Reference of Law as follows :
'The interest in land of a person (called reversioner) who is granted some lesser interest than his own to enter but has not disposed of his own interest".
Hence in the light of both Ex.Bl and Ex.B4, Kalidindi Venkata Subbamma i.e., 2nd appellant in the present appeal continues to be the owner of the property despite the fact that a life interest had been created for a limited period in favour of the 1st appellant/1st defendant. The mere fact that incidentally the 2nd appellant is the daughter of the 1st appellant, in my considered opinion, may not change or alter the situation in any way. It is no doubt true that the 2nd appellant came on record as the legal representative for the purpose of prosecuting the litigation instead of coming on record as legal representative, but the fact remains that she had been in fact brought on record. Section 2(11) of the Code of Civil Procedure defines "legal representative" and the said provision reads as follows :
"legal representative" 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".
As already discussed supra, the 1st appellant/ 1st defendant was not the owner of the plaint A schedule property even during the pendency of we suit and hence at any stretch of imagination it cannot be said that the 2nd appellant herein was represented by mother, 1st defendant in the litigation and hence it cannot be said that the mother was sued as a representative of the daughter and hence it cannot be said that the daughter is representing the estate of the 1st appellant/1st defendant. Even otherwise, the estate, if any, is only the life estate which had been given which is bound to revert to the real owner of the property inasmuch as the death of the 1st defendant at a particular point of time is a certainty. In Gyan Datt v. Soda Nand Lal, AIR 1938 All. 163, it was observed that in order to be a legal representative under Section 2(11) C.P.C. it is not necessary that a person should be a legal heir of a deceased person. In the decision referred (supra), while dealing with the expression "legal representative", the Apex Court held:
"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 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 representative."
It is no doubt true that in the peculiar facts and circumstances the 2nd appellant is acting in dual capacity - one as the legal representative on record only for the purpose of prosecuting the litigation and another in contesting the litigation on the ground that the Judgment and decree are not binding and are bad in law since though she was a necessary party she was not impleaded as a party in the suit. Having come on record to prosecute the litigation further, can such a party be permitted to raise such a contention ? It is not in dispute that the 2nd appellant was not impleaded as a party and Issue No. 7 in fact had been specifically framed even by the trial Court. In the decision referred to (supra), the facts in nut-shell are as follows:
The plaintiff who claimed that the suit properties were settled under a deed on herself and her husband for their life time to be enjoyed jointly, sued the alienee defendants for recovery of possession, impleading in the suit, her son also. The trial Court dismissed the suit. The plaintiff filed an appeal but died pending the appeal. In the appeal, her son who was the 2nd respondent was transposed as the appellant as the legal representative of the plaintiff. His legitimacy was questioned in the suit but the issue was left open by all the parties but no objection was raised to his being impleaded as the legal representative of the deceased plaintiff-appellant. The appellate Court allowed the appeal and granted decree for possession and directed the ascertainment of mesne profits separately; The alienees appealed and it was held that there can only be a declaration that the plaintiff had title and right to the possession of the suit properties for her life under the deed of settlement. The decree of the appellate Court granting possession and providing for ascertainment of future mesne profits will be set aside. As the cause of action does not survive to the heir of the deceased plaintiff, the relief of possession cannot be maintained by the legal representative. The Substantial relief claimed in the suit is assertion of the title to possession only, till death. With the death it is extinguished and does not survive to her legal representative. The claim for future profits made in the plaint is not on any independent cause of action. Where the action cannot be maintained for possession it could not be continued as a claim for future mesne profits. The remedy of the legal representative as the remainderman under the deed of settlement is to sue on his title.
Order 1, Rule 9 of the Code of Civil Procedure reads as follows:
"No suit shallbe defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
Provided that nothing in this rule shall apply to non-joinder of a necessary party".
In Udit Narayan Singh v. Board of Revenue, , while dealing with necessary and proper parties and the distinction thereof the Apex Court held that the law as to who are necessary or proper parties to proceeding is well settled and a necessary party is one without whom no order can be made effectively and proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. In the light of the same, and in the facts and circumstances of the case, this Court has to arrive at an irresistible conclusion that the 2nd appellant being the owner of the property is a necessary party to the suit. In the decision referred to supra, it was held that the non-joinder of a necessary party and the objection relating thereof can be raised even in appellate Court. In the decision referred to supra, it was held that where a person who was a necessary party was not impleaded as a defendant in spite of such objection being taken at the very beginning, decreeing the suit is bad and such suit is liable to be dismissed. In fact, Order 1, Rule 9 CPC had been amended by the Amendment Act of 1976 and the proviso had been added making it specific that a necessary party shall be impleaded and this was the judicial opinion even prior thereto (See Kali Charon v. Ganesh Prasad, ). In the decision referred to (supra), this Court held that where a necessary party is not impleaded in a suit or appeal it will have to be dismissed on that ground.
26. The learned Counsel for the 1st respondent/plaintiff also no doubt had advanced yet another contention that the 2nd appellant being the legal representative cannot put-forth any other defence and reliance was placed on the decision of the Apex Court referred to (supra). It is pertinent to note that in the said case it was held that where a legal representative was impleaded as a party defendant, all rights under Order 22, Rule 4(2) CPC and defences available to deceased defendant become available to such a party but such legal representative having independent right, title or interest in the property has to get herself impleaded in the suit as a party defendant and set up her own right, title or interest. It is no doubt true that in the present case, as a legal representative, the 2 appellant cannot put-forth any other defence other than the stand taken by the 1st appellant/1st defendant. But here is a case where the 2nd appellant is contesting the litigation for a limited extent taking the same stand which had been taken by her mother in the suit.
27. Reliance also was placed on the decision referred to (supra) contending that there cannot be variance between pleading and proof. I do not think that these decisions are of any help to the 1st respondent/plaintiff.
28. Apart from this, yet another aspect of the matter is that the judgment and decree of this nature, not being a judgment in rem cannot be said to be binding on a non-party to the litigation. Section 41 of the Indian Evidence Act dealing with relevancy of certain judgments in probate, etc., jurisdiction reads as follows:
"A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.
Such judgment, order or decree is conclusive proof that any legal character which is confers accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person;
that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property."
Further, Section 34 and 35 of the Specific Relief Act, 1963 also are to be looked into since they are relevant for the purpose of deciding the binding nature of such a judgment and these provisions read as follows:
"Discretion of Court as to declaration of status or right:--Any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying or interested to deny his title to such character or right and the Court may in its discretion, make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief:
Provided that no Court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of a title, omits to do so.
Explanation :--A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence and for whom, if in existence, he would be a trustee "Effect of declaration :--A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons from whom, if in existence at the date of the declaration, such parties would be trustees."
In the Law of Specific Relief, by me, while dealing with the scope of Section 35 of the said Act, I had stated as follows:
"This Section corresponds to Section 43 of the Old Act the principle laid down in this section is just akin to the principle of res judicata though it is wider in one sense and narrower in another sense. A declaratory decree is binding on the persons who are parties to the litigation or persons litigating through them but not on a stranger. Such judgments are binding interparties since such judgments are not judgments in rem."
In the light of this legal position, at any stretch of imagination, it cannot be said that in the absence of impleading the 2nd appellant as a party defendant in the suit, it cannot be said that the said judgment and decree are binding on her so far as it relates to the plaint A schedule property. May be that it is a very technical aspect. But the law appears to be in favour of the 2nd appellant in this regard. It is also pertinent to note that already she had instituted an independent suit OS No. 72/96 on the file of Senior Civil Judge, Bhimavaram and the same is pending disposal and hence in the light of the same and in the peculiar facts and circumstances it is to be held that the Judgment and decree made in OS No. 52/82 so far as it relates to the plaint A schedule property is concerned, is not binding on the 2nd appellant - a non-party to the litigation.
Point (d):--The civil revision petition is preferred as against the final decree. Sub-section (2) of Section 2 of the Code of Civil Procedure defines decree as follows:
"decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include--
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation:--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final"
It is needless to mention that whether a decree is preliminary or final, the remedy is only by way of appeal and the remedy by way of revision under Section 115 of the Code of Civil Procedure is undoubtedly a misconceived remedy. No doubt, both the Counsel had stated that if a preliminary decree is liable to be set aside the final decree which is the subject-matter of the present CRP may not have the legs to stand. Whatever may be the legal effect, in view of the clear legal position, the remedy by way of civil revision petition is not available to the 2nd appellant and hence this civil revision petition is not maintainable.
Point (e):--In the light of the findings which had been recorded in detail above, the judgment and decree in OS No. 52/82 on the file of Subordinate Judge, Bhimavaram, so far as they relate to plaint A schedule property is concerned, are liable to be set aside and inasmuch as the 2nd appellant already had been brought on record, no doubt in a different capacity as a legal representative of the 1st appellant in the appeal, in the fitness of things the trial Court shall add the 2nd appellant being a necessary party defendant to the suit and give opportunity to the parties concerned and decide the matter afresh and inasmuch as already suit O.S.No. 72/96 had been instituted by the 2nd appellant on the file of Senior Civil Judge, Bhimavaram, it is but reasonable that the matter be clubbed with the said O.S.No. 72/96 and both the suits be disposed of after giving opportunity to all the parties concerned, in accordance with law. Hence, the Judgment and decree in O.S.No.52/82 so far as they relate to the plaint A schedule property is concerned, are hereby set-aside and the matter is remanded to the trial Court to be tried along with O.S.No.72/96 after impleading the 2nd appellant as a party defendant to the suit and after affording proper opportunity to the said party also to contest the litigation.
29. Accordingly, the appeal is allowed to the extent indicated above and the civil revision petition is dismissed as not maintainable. However, in the peculiar facts and circumstances of the case, no order as costs.