Kerala High Court
Chellamma Bhargavi Amma (Died) vs Lekshmy Amma (Died) on 24 September, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
THURSDAY, THE 25TH DAY OF JULY 2013/3RD SRAVANA, 1935
RSA.No. 1182 of 2004 (G)
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AGAINST THE JUDGMENT IN AS 141/2002 of I ADDL.SUB COURT,
THIRUVANANTHAPURAM DATED 24-09-2004
AGAINST THE JUDGMENT IN OS 1424/1968 of I ADDL.MUNSIFF COURT,
THIRUVANANTHAPURAM DATED 09-01-2001
APPELLANT(S)/APPELLANT/ADDL.6TH DEFENDANT::
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1. CHELLAMMA BHARGAVI AMMA (DIED)
AGED 81 YEARS, RESIDING AT ERATHUVILAKATHU, VEEDU
KURIYATHI, IRANIMUTTAM (NEW MANACAUD)
THIRUVANANTHAPURAM.
ADDL. APPELLANTS
2. P. RADHAKRISHNAN NAIR, AGED 65 YEARS,
RESIDING AGT ERATHUVILAKATHU VEEDU, KURIYATHI,
MANACADU P.O., THIRUVANANTHAPURAM.
3. B. RADHAMONY AMMA, AGED 65 YEARS,
RESIDING AT ERATHUVILAKATHU VEEDU, KURIYATHI,
MANACADU P.O., THIRUVANANTHAPURAM.
4. B.P. RAMACHANDRAN NAIR, AGED 55 YEARS,
S/O.LATE CHELLAMMA BHARGAVI,
RESIDING AT ERATHUVILAKATHU VEEDU, KURIYATHI,
MANACADU P.O., THIRUVANANTHAPURAM.
ADDL. A2 TO A4 IMPLEADED BEING THE LEGAL HEIRS OF DECEASED
SOLE APPELLANT AS PER ORDER DATED 20.2.2013 IN I.A. NO.541/2013
ADDL. A2 TO A4 BY ADV.SRI.P.S.RAMESH KUMAR
...2
RSA.No. 1182 of 2004 (G)
-2-
RESPONDENT(S)/RESPONDENTS/ADDL.PLAINTIFFS 3,4,6 TO 14::
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1. LEKSHMY AMMA (DIED)
PADMAVILASOM, KARIYAVATTOM, THIRUVANANTHAPURAM.
2. L. KANTHIMATHY,D/O. LEKSHMI AMMA,
RESIDING AT PADMAVILASOM, KARIYAVATTOM
THIRUVANANTHAPURAM.
3. L. SANTHAKUMARI, D/O. LEKSHMI AMMA
RESIDING AT PADMAVILASOM, KARIYAVATTOM
THIRUVANANTHAPURAM.
4. L. CHANDRIKA DEVI, D/O. LEKSHMI AMMA, (DIED)
RESIDING AT PADMAVILASOM, KARIYAVATTOM
THIRUVANANTHAPURAM.
5. L. AMBIKA DEVI, D/O LEKSHMI AMMA,
RESIDING AT PADMAVILASOM, KARIYAVATTOM
THIRUVANANTHAPURAM.
6. L. VALSALA DEVI, D/O. LEKSHMY AMMA,
PADMAVILASOM, KARIYAVATTOM, THIRUVANANTHAPURAM.
7. M. BHAGAVATHY AMMA, WIFE OF MADHAVAN
PILLAI, KIZHAKKEKARAVELI VEEDU, AMBUJAVILASOM ROAD
VANCHIYOOR, THIRUVANANTHAPURAM.
8. N. MOHANAKUMAR, RESIDING AT
KIZHAKKEKARAVELI VEEDU, AMBUJAVILASOM ROAD, VANCHIYOOR
THIRUVANANTHAPURAM.
9. B. MEENAKUMARI, D/O. BHAGAVATHY AMMA,
KIZHAKKEKARAVELI VEEDU, AMBUJAVILASOM ROAD, VANCHIYOOR
THIRUVANANTHAPURAM.
10. N. MADHUKUMAR, RESIDING AT
KIZHAKKEKARAVELI VEEDU, AMBUJAVILASOM ROAD, VANCHIYOOR
THIRUVANANTHAPURAM.
11. B. SHEELA KUMARI, RESIDING AT
KIZHAKKEKARAVELI VEEDU, AMBUJAVILASOM ROAD, VANCHIYOOR
THIRUVANANTHAPURAM.
12. BHAGAVATHY AMMA DEVAKI AMMA, (DELETED)
RESIDING AT PARUTHIYIL VEEDU, MELLILLOM, THIRUVALLOM
THIRUVANANTHAPURAM.
13. B. SOMAN NAIR, PARUTHIVILAKOM VEEDU, (DELETED)
NEMOM P.O., THIRUVANANTHAPURAM.
..3
RSA.No. 1182 of 2004 (G)
-3-
14. HARI, PARUTHIYI VEEDU, (DELETED)
MEEVALLAM DESOM, THIRUVALLOM, THIRUVANANTHAPURAM.
15. AMMINI, PARUTHIYIL VEEDU, (DELETED)
MEEVALLAM DESOM, THIRUVALLOM, THIRUVANANTHAPURAM.
ADDL. RESPONDENTS
16. CHITHRA SURESH, AGED 37 YEARS,
D/O. CHANDRIKA DEVI, PADMAVILASOM,
KARIYAVATTOM, THIRUVANANTHAPURAM.
17. HARISH, AGED 34 YEARS, S/O. MANIKYAM PILLAI,
PADMAVILASOM, KARIYAVATTOM, THIRUVANANTHAPURAM.
18. MANICKAM PILLAI, AGED ABOUT 70 YEARS,
HUSBAND OF LATE CHANDRIKA DEVI,
RESIDING AT PADMA VILASOM, KARIYAVATTOM,
SREEKARIYAM P.O., THIRUVANANTHAPURAM.
R12 TO R15 ARE DELETED FROM PARTY ARRAY AS PER ORDER
DATED 27.10.2004 IN RSA 1182/2004
1ST RESPONDENT DIED AND RESPONDENTS 2, 3 5 AND 6 ARE
RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 1ST
RESPONDENT AS PER ORDER DATED 20.1.2011 IN I.A.NO. 147/2011
ADDL. RESPONDENTS 16 AND 17 IMPLEADED AS THE LEGAL HEIRS
OF DECEASED 4TH RESPONDENT AS PER ORDER DATED 20.1.2011 IN
I.A. NO.146/2011
ADDL. R18 IMPLEADED AS THE LEGAL HEIR OF DECEASED R4 AS PER
ORDER DATED 6.3.2013 IN I.A. NO.943/2012
R2,R3,R5TO11,R16,R17,ADDL.18 BY ADVS. SRI.SAJAN VARGHEESE K.
SRI.LIJU. M.P
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
25-07-2013, ALONG WITH RSA. 648/2010, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
JJJ
C.R.
N.K. BALAKRISHNAN, J.
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R.S.A. No. 1182 of 2004
&
R.S.A. No. 648/2010
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Dated this the 25th day of July, 2013
J U D G M E N T
R.S.A. No. 1182 of 2004 is filed against the final decree passed by the trial Court. R.S.A. 648/2010 is filed by the very same appellant challenging the decree and judgment passed by the lower appellate Court reversing the decree of the trial Court. That was a suit filed by the appellant contending that the preliminary decree (Ext.A9) passed in O.S.1424/1968 is null and void and that it is not binding on the appellant. Since these appeals pertain to the very same subject matter, both appeals are heard together.
2. Appellant is the daughter of Govinda Pillai who was the sole defendant in O.S. No.1424/1968. That was a suit for redemption and for recovery of possession. When R.S.A. Nos. 1182/2004 & 648/2010 -2- O.S. No.1424/1968 (Ext.A9 suit) was pending Govinda Pillai died in 1970. Defendants 2 to 4 therein were impleaded as the legal heirs of deceased Govinda Pillai. Another person was also impleaded as the 5th defendant therein contending that she was creating some documents pertaining to the suit property mentioned therein. A preliminary decree was passed in that suit. When final decree application was filed in 1985 the appellant herein was impleaded in that final decree application and a notice was issued to the appellant. That was in the year 1985. In the final decree application, the appellant herein contended that Ext.A9 preliminary decree is a nullity since the judgment in that suit was pronounced on 31-8-1971 long after the death of Govinda Pillai who was the sole defendant in that suit.
3. Defendants 2 to 4 who were impleaded in that suit were not the legal heirs and that they were total strangers R.S.A. Nos. 1182/2004 & 648/2010 -3- and that those persons were deliberately impleaded in the suit with mischievous design, it was pleaded. It was contended that since the preliminary decree is a nullity as it was passed against a dead person, no final decree can be passed as sought for in the application filed by the legal heirs of the deceased plaintiff. The objections raised by the appellant herein were not accepted by the trial court. Rejecting those contentions final decree was passed. As against the same, the appellant filed appeal as A.S. 141/2002. That was dismissed by the appellate court on 24-09-2004. It is against that judgment R.S.A. 1182/2004 has been filed.
4. The suit O.S. 4/2003 was filed when notice in the execution petition filed by the respondents was received by the appellant. It was contended that the suit was not barred by limitation in view of the fact that the preliminary decree was passed against a dead person and so it is a R.S.A. Nos. 1182/2004 & 648/2010 -4- nullity and that since the objections were raised with regard to the same in the final decree application, there was no necessity to file, at that stage, a suit for a declaration that the preliminary decree passed in O.S. No. 1424/1968 is a nullity. Final decree was passed on 09.01.2001. Since the suit, O.S. No.4/2003, was filed within three years from the date of passing of the final decree, the suit is not barred by limitation, the appellant contended.
5. In the written statement filed by the defendants in O.S. No. 4/2003 the allegations made by the appellant were denied. It was contended that O.S. No. 4/2003 is barred by res judicata since the contentions raised by the appellant in the final decree applications were negatived by that Court. Since the notice in the final decree application was received in the year 1985, if as a matter of fact, the preliminary decree was not binding on the appellant she should have filed a suit within three years from the date of R.S.A. Nos. 1182/2004 & 648/2010 -5- receipt of the notice but the suit was filed only in the year 2003 and so it is hopelessly barred by limitation.
6. It is also contended that the preliminary decree is not a nullity since defendants 2 to 4 were impleaded in that suit. It was also contended that deceased first defendant had appeared and filed written statement seriously disputing the plaint allegations therein and since the preliminary decree was passed after considering all those contentions, the decree cannot be said to be a nullity and in any event the suit is barred by limitation.
7. Since all the contentions were raised in O.S. No.4/2003 and evidence was adduced in that case, the parties are referred to as they are referred to in the suit.
8. The plaintiff therein was examined as P.W.1 and Exts. A1 to A20 were marked. The 8th defendant therein was examined as DW1 and Exts.D1 to D4 were marked. R.S.A. Nos. 1182/2004 & 648/2010 -6-
9. The learned Sub Judge after discussing the entire evidence found that the suit is not barred by limitation in view of the fact that the preliminary decree is a nullity as it was passed against a dead person. It was also found that since the final decree was passed only in January 2001, the suit is not barred by limitation. The lower appellate Court reversed the decree and judgment passed in O.S. 4/2003 holding that there is no evidence to show that the preliminary decree was obtained by fraud and in any event the suit should have been filed within three years from 1985 when the appellant got knowledge about the filing of the final decree proceedings on the basis of the preliminary decree. Hence, the judgment and decree passed by the trial court was reversed by the appellate court.
10. Learned counsel for the appellant would submit that the lower appellate Court has gone wrong in holding that the suit is barred by limitation. It is contended that R.S.A. Nos. 1182/2004 & 648/2010 -7- when the case set up by the appellant throughout is that the preliminary is a nullity since it was passed against a dead person and since his estate was not represented by the legal heir, it should not have been held by the lower appellate court that the suit is barred by limitation. When the specific case put forward by the appellant is that fraud played not only against the appellant who is the sole legal heir of deceased Govinda Pillai and also upon the court, the court should not have viewed things lightly and ignored all these aspects and held that since the appellant had participated in the final decree the appellant cannot plead that the impugned preliminary decree is a nullity.
11. The following substantial questions of law have been framed:-
i) When a decree is attacked on the ground that it is a nullity as it was passed against a dead person and when the suit was filed immediately after the final R.S.A. Nos. 1182/2004 & 648/2010 -8- decree was passed, is the lower appellate Court justified in holding that O.S. 4/2003 is barred by limitation ?
ii) When the allegation is that the decree was obtained by playing fraud on the Court and when there were sufficient materials to hold that the sole legal heir of the defendant in O.S.1424/1968 was not impleaded and when the plaintiff therein had no explanation why the appellant was not impleaded and when some strangers were impleaded, is the lower appellate Court correct in holding that the preliminary decree is not a nullity?
iii) Is the lower appellate court justified in holding that since all the contentions were raised by the appellant in the final decree proceedings, the subsequent suit is only a parallel proceedings and so it should not be entertained ?
R.S.A. Nos. 1182/2004 & 648/2010 -9-
12. Admittedly, the appellant is the legal heir of deceased Govinda Pillai. There is no case for the respondent is that the appellant is not the sole legal heir of deceased Govinda Pillai. The defendants in O.S. 4/2003 who are the respondents herein have no case that they had made any enquiry as to whether the appellant is not the sole legal heir of deceased Govinda Pillai. It is submitted by the learned counsel for the appellant that the lower appellate has not gone through the pleadings. In paragraph 8 of the plaint it was specifically stated that the plaintiff/appellant was unaware of the preliminary decree passed in O.S.1424/1968. It was also stated that her father died in the year 1970. It was further averred that instead of impleading the appellant who was the sole legal heir (the plaintiff herein), some strangers were impleaded and they obtained fraudulent preliminary decree which is not binding on the plaintiff herein. It was stated in R.S.A. Nos. 1182/2004 & 648/2010 -10- paragraph 9 of the plaint that the preliminary decree in O.S. 1424/1968 was obtained by playing fraud on court colluding with defendants 2 to 5 in the said suit and the said preliminary decree is a nullity and it is not binding on the plaintiff. In para 12 of the plaint it was also stated: "The court below was compelled to find that since defendants 2 to 4 in the said suit remained ex parte, title was found in favour of the plaintiff therein". It was stated that the actual title holder of the property was the plaintiff herein, who was the sole legal heir of Govinda Pillai the defendant in O.S. 1424/1968, but she was deliberately kept out of the proceedings. Again it was stated in the very same paragraph that the title in O.S.1424/1968 was found in favour of the plaintiff therein only because the four defendants who figured as the legal heirs of the deceased first defendant remained ex parte.
R.S.A. Nos. 1182/2004 & 648/2010 -11-
13. On going through O.S.1424/1968 it is clear that no contest was raised by defendants 2 to 4 who were impleaded as the legal heirs of deceased first defendant. There was no iota of evidence nor was any other material to hold that the defendants 2 to 4 who were impleaded in that suit were the legal heirs or that there was anything else to have a bonafide belief in the mind of the plaintiffs therein to implead those persons as the legal heir of the deceased Govinda Pillai. In this connection the written statement filed by the defendants in O.S. 4/2003 can also be referred to. Govinda Pillai the first defendant in O.S. 1424 of 1968 or the present plaintiff has got no right or title over the property scheduled in O.S.1424/1968. In paragraphs 14 and 15 of the written statement it was contended that Govinda Pillai had appeared in the suit and vehemently contested the suit and a preliminary decree was passed in that suit when Govinda Pillai was alive. There is nothing on R.S.A. Nos. 1182/2004 & 648/2010 -12- record to show that Govinda Pillai had actually appeared in Court or any written statement was filed therein. The specific contention raised by the appellant is that no summons was served on Govinda Pillai the first defendant in that suit but it was made to appear that Govinda Pillai was served with a notice. Whether Govinda Pillai was actually served with summons or not could not be verified since, it is submitted that the records in O.S.1424/1968 with regard to those papers were not available as those papers were destroyed as per the Rules pertaining to destruction of records.
14. It is actually immaterial to find whether the first defendant had filed written statement in that suit when admittedly Govinda Pillai expired long prior to the disposal of the suit. There is also no dispute regarding the fact that if the legal heir of deceased Govinda Pillai was not impleaded in the suit, then the decree would be a nullity. R.S.A. Nos. 1182/2004 & 648/2010 -13- Admittedly, the appellant was the sole legal heir of Govinda Pillai. No document was produced by the plaintiffs in that suit so as to implead defendants 2 to 4 in that suit. Had any vestige of title or any colour of title to hold that they are persons entitled to represent the estate of deceased first defendant. Admittedly, they are not the legal heirs of the deceased first defendant.
15. The learned counsel for the appellants would submit, pointing out the names of D2 to D4 impleaded in the suit, that they are none other than the sisters or near relatives of the defendants. The 5th defendant was impleaded in that suit only to make it appear that the suit was contested. D5 is not the legal heir of deceased first defendant. She was impleaded contending that she was creating some documents pertaining to the property. But it could be seen from the judgment passed in O.S.1424/2008 that, in fact, as per a document produced therein the 5th R.S.A. Nos. 1182/2004 & 648/2010 -14- defendant had already sold her right over the property to the plaintiff's father, and so there was nothing for her to raise any contest to the suit. It was also observed by the trial Court in that case that although the 5th defendant had taken up the contention that she has got jenm right, no document was produced to substantiate her contention.
16. It was further observed that in the absence of production of any of the documents referred to by the 5th defendant it has to be found that the plaintiff's father got the property by 'Ext.P2' and that after his death the plaintiffs got right to redeem the property. Since there was nothing more, it was held by the trial Court that defendants 1 to 4 are the persons 'who are in possession of the property'. The first defendant was already dead. Any way it is not necessary to give that much importance to the finding ultimately entered, in that case since that finding was entered when the sole defendant in the case was R.S.A. Nos. 1182/2004 & 648/2010 -15- dead.
17. It is argued by the learned counsel for the appellant that if the preliminary decree was passed against a dead person, there can be no doubt that it is a nullity. The only other question is whether the first defendant was represented by his legal heir. The plaintiff who is the sole legal heir was not impleaded in the suit. Therefore, it cannot be said that there was proper representation of the easte of the deceased and so the suit was abated. If the suit abates it cannot be given life to unless the abatement is set aside by filing a proper petition for that purpose. It is equally important to note that when notice in the final decree proceedings was received by the plaintiff herein he raised a specific contention that the preliminary decree is a nullity, since it was passed against a dead person. Still it did not occur to the plaintiff to file a review petition before the trial court to see that the preliminary decree is reviewed R.S.A. Nos. 1182/2004 & 648/2010 -16- and to set aside the abatement after filing a petition to condone the delay in filing that application and to implead the appellant herein as the legal heir of the deceased first defendant and to have a fresh decree passed after making the appellant a party to the proceedings. If so, that would have put an end to the controversy. But, unfortunately the plaintiffs therein did not choose to do so. They proceeded with the final decree petition knowing fully well that the preliminary decree is a nullity. Nothing could turn out based on such a decree which is a nullity.
18. There is only one sentence in paragraph 19 of the written statement that the plaintiffs in the suit bonafide impleaded D2 to D4 as the legal heirs of the first defendant in that suit. That sentence itself is mischievous. Nothing has been stated in the written statement as to what was the enquiry conducted by the plaintiffs in that suit to find that defendants 2 to 4 impleaded in that suit were the legal heirs R.S.A. Nos. 1182/2004 & 648/2010 -17- of the deceased first defendant.
18. It is important to note that the specific contention raised by the plaintiff in O.S. 4/2003 is that the defendants 2 to 4 are total strangers. That could not be properly controverted by the defendants. Therefore, it is a case where the estate of the deceased / sole defendant was not represented at all and as such the preliminary decree passed in O.S. 1424/1968 is a nullity. It is pointed out that the lower appellate court has gone wrong in holding that there is no pleading to the effect that the decree is a nullity and that there is no pleading regarding fraud. When it is the specific case that the plaintiffs in O.S.1424/1968 had played fraud on the court and that total strangers were impleaded in the suit and the decree was obtained behind the back of the sole legal heir, nothing more is required with regard to the same, the learned counsel for the appellant submits. It is a case where instead of impleading the sole R.S.A. Nos. 1182/2004 & 648/2010 -18- legal heir, some strangers were impleaded and the plaintiffs therein obtained a decree by playing fraud on the Court. There is no pleading as to what was the enquiry conducted by the plaintiff in that suit. Nothing was said in the written statement in O.S. 4/2003 that any such enquiry was conducted by them. In the absence of anything, it cannot be said that the defendants 2 to 4 were impleaded in O.S.1424/1968 bonafide believing that they are the legal heirs of deceased D1. There was also no reason for them to believe that defendants 2 to 4 were the legal heirs of deceased first defendant.
19. It is also pertinent to note that the preliminary decree (Ext.A9) was passed in O.S. No.1424/1968 on 31.8.1971. The final decree application was filed only in August, 1985. It was filed by the legal heirs of the deceased plaintiff. It was only then the appellant herein was impleaded as the 6th respondent in the final decree R.S.A. Nos. 1182/2004 & 648/2010 -19- petition. In fact, the appellant raised an objection to the effect that the final decree application itself was barred by limitation. Whatever that be, the delay of about 14 years in filing the final decree application was caused by the respondents. Therefore, it is submitted by the learned counsel for the appellant that the lower appellate court was not justified in finding that there was delay in filing the present suit - O.S. No.4/2003. In the written statement it was contended by the respondents that the plaintiffs in A9 suit were informed that the defendants 2 to 4 are the legal heirs of the deceased first defendant. It is too vague a plea that can be countenanced. Where from such an information was received and what was the basis or source of information for impleading D2 to D4 in O.S. No.1424/1968 is not at all stated in the written statement. There is no evidence on that point also.
R.S.A. Nos. 1182/2004 & 648/2010 -20-
20. The learned counsel for the appellant would further submit that the lower appellate court has recorded many of the findings purely based on surmises and conjectures. For example when Ext.A7 - the copy of the plaint in O.S. No.1424/1968, was filed the lower appellate court observed that the copy of the plaint might have been served on the plaintiff's father, who was the 1st defendant in that suit and so it has to be assumed that the plaintiff had come to know of the pendency of that suit. The learned counsel for the appellant submits that there is no basis for having such an assumption. There is absolutely no evidence to show that any summons or notice was served on the plaintiff or even on her father who was the 1st defendant in the suit. The lower appellate court found fault with the plaintiff for not producing such records. The summons, notices etc will not be available after the expiry of the period prescribed for destruction of records as per the Rules. R.S.A. Nos. 1182/2004 & 648/2010 -21-
21. Though it was contended by the respondent in the suit that the 1st defendant was represented by a very senior lawyer and that written statement was filed in that suit, there is no evidence on that point. Therefore, it remains in the realm of pleading alone. When there is absolutely no evidence to show that the appellant was aware of Ext.A9 preliminary decree before the notice in the Final Decree Application was received in 1985, there was no justification for the lower appellate court to have such assumptions. As stated earlier, the specific case advanced by the appellant is that she came to know of the filing of the suit and the passing of the preliminary decree only in 1985, when notice in the final decree was served on her.
22. The learned counsel for the appellant would submit that the lower appellate court proceeded to hold that after the receipt of the notice in the final decree application she should have challenged the preliminary decree then and R.S.A. Nos. 1182/2004 & 648/2010 -22- there or, at any event, a suit should have been filed immediately on receipt of the notice in 1985. When the specific case put forward by the appellant is that the preliminary decree is a nullity as it was passed against a dead person, there was no necessity for the plaintiff to file a suit at that point of time or to challenge the preliminary decree, which had no life at all at the relevant time as it was passed against a dead person. The fact that the appellant herein had appeared in the final decree proceedings, cannot be a reason to say that she did not object to the preliminary decree passed in the suit. It was specifically contended by the appellant in the final decree application also that the preliminary decree is a nullity as it was passed against a dead person. It was also averred in the objection statement filed by the appellant that some strangers were impleaded in the suit as defendants 2 to 4 and that she - the plaintiff, was deliberately kept away only to get a decree behind her R.S.A. Nos. 1182/2004 & 648/2010 -23- back. It is in tune with those averments, the specific pleading was raised in the suit also.
23. It is submitted by the learned counsel for the appellant that the lower appellate court was persuaded to decide the case against the appellant because the preliminary decree was passed in 1971. But at the same time, the fact that the final decree application was filed by the respondent in 1985 should not have been over looked by the lower appellate court.
24. The lower appellate court also observed that since the appellant did not get the preliminary decree set aside on the ground of fraud within three years from the date of knowledge in 1985, the suit is barred by limitation. The lower appellate court observed that:
"The plaintiff now indirectly wants to set aside a preliminary decree passed against her father and now she is R.S.A. Nos. 1182/2004 & 648/2010 -24- claiming as legal heir of her father and questioning the same."
It is not known how such a statement can be accepted. It is a proved fact that the preliminary decree was passed against a dead person. It has also come out in evidence and is not disputed also that defendants 2 to 4 in Ext.A9 suit were not the legal representatives of deceased Govindan Pillai. If so, it eludes comprehension how it can be said that the plaintiff was indirectly attacking the preliminary decree when no such preliminary decree was passed against her father when he was alive.
25. The learned counsel for the appellant also submits that another observation made by the lower appellate court that if the plaintiffs in Ext.A9 suit had intention to get a decree behind the back of the appellant herein, there was no necessity for the plaintiffs in Ext.A9 suit to implead the appellants in the final decree as they could have obtained a R.S.A. Nos. 1182/2004 & 648/2010 -25- final decree also behind the back of the appellant herein. This, according to the learned counsel appearing for the appellant, is a strange reasoning. It admits of no doubt that if the appellant had not been made a party to the final decree proceedings, then the decree passed therein cannot be executed since the executability of the decree would certainly be raised by the appellant as she was not made a party to the final decree proceedings. It was in order to avoid that plea, she was later impleaded. There was no case for the plaintiffs in Ext.A9 suit that they came to know that the appellant was the real legal representative, only at that point of time. The respondents should have filed a review petition in Ext.A9 suit to get the preliminary decree reviewed after bringing on record the actual legal representative of deceased 1st defendant therein and to have a revised preliminary decree.
R.S.A. Nos. 1182/2004 & 648/2010 -26-
26. Exhibit A9 would show that defendants 2 to 4, who were impleaded in that suit, were Bhagavathi Amma Karthiani Amma alias Panki Amma, Bhagavathi Amma Karthiani Amma Parvathi Amma and Bhagavathi Amma Devaki Amma. The 5th defendant is also shown as Bhagavathi Amma Parvathi Amma. It is contended by the appellant that defendants 2 to 4 who were impleaded as the defendants were actually the near relatives of the plaintiff. When the 8th defendant was examined as DW1, in cross examination, he admitted that he does not know Panki Amma, Devaki Amma or Parvathi Amma (defendants 2 to
4). If so, how could those three persons be impleaded as the legal heirs of deceased 1st defendant. It was admitted by DW1 that the 5th defendant Parvathi Amma was the sister of the 1st plaintiff's father (sister of PW1's father). DW1 feigns ignorance as to why the Bhagavathi Amma was impleaded in the final decree application. The cumulative R.S.A. Nos. 1182/2004 & 648/2010 -27- effect of all these answers would throw much light on the dubious method adopted by the respondents to hoodwink the court and to obtain a preliminary decree behind the back of the plaintiff.
27. The trial court accepted the case of the plaintiff that the right to sue did accrue to the plaintiff only in November 2002 when she received the notice in the execution proceedings pursuant to the final decree passed in Ext.A9 suit. According to the appellant a suit for declaration can be filed within three years from the date when the right to sue first accrues. Another limb of the argument is that when a preliminary decree is non est in the eye of law there can be no limitation because a decree which is a nullity cannot be put to execution. But at the same time since the plaintiff has chosen to contest in the final decree application that preliminary decree is a nullity and no final decree can be passed based on such a preliminary decree and when R.S.A. Nos. 1182/2004 & 648/2010 -28- that contention was rejected by the trial court, then he cannot wait till the disposal of the appeal or till execution petition is filed, because the words "first accrues" would make it clear that the suit should be filed at the earliest among the causes of action when there is a series of causes of action. If a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. Therefore, even if the contention raised by the appellant that the cause of action arose only when she received the notice in the execution petition in November, 2002 is not accepted, still the plaintiff can very well contend that there was a threat to infringe his right when the final decree was passed in 9.1.2001. The suit was filed within three years from that date.
28. The decision in Chenkalvaraya Naidu (Died) by LRs v. Jagannatha (Dead) by LRs and others - AIR 1994 SC 853 was referred to by the learned counsel for the R.S.A. Nos. 1182/2004 & 648/2010 -29- appellant. In that case the preliminary decree was questioned by the parties in the final decree proceedings on the ground of fraud. It was held by the apex court that even during the final decree proceedings if it was proved that the preliminary decree was obtained by fraud then court can refuse to pass final decree. The lower appellate court did not place reliance on this decision because it was not pertaining to the plea of limitation. But the learned counsel for the appellant would submit that immediately on receipt of the notice in the final decree proceedings it was not necessary for the appellant to rush to the court to file a suit for declaration because it was open to the appellant to raise the contention that the final decree cannot be passed because the preliminary decree was a nullity and so till a decision was taken by the court on the objection so raised by the appellants, there was no necessity for the appellant to file a suit. There is force in that submission. R.S.A. Nos. 1182/2004 & 648/2010 -30-
29. The contention advanced by the learned counsel for the respondent that if, as a matter of fact, the appellant had any challenge against the preliminary decree then immediately on receipt of the notice in the petition to implead her as the supplemental 6th respondent, she should have filed a petition to review or reopen the preliminary decree or should have filed a suit then and there and not to wait till the disposal of the final decree is bereft of any merit because the party who was subsequently impleaded at the final decree stage has every right to challenge the preliminary decree, if it is vitiated by fraud or if it is a nullity as the said decree was passed against a dead person and also because she was not impleaded in Ext.A9 suit as the legal representatives of the deceased sole defendant.
30. The lower appellate court has observed that when the appeal filed against the final decree was pending, this suit was filed. The appeal against the final decree was R.S.A. Nos. 1182/2004 & 648/2010 -31- disposed of by the appellate court only on 24.9.2004. But it was also pointed out that the suit was filed immediately after the filing of the final decree and when notice was received by the appellant in the execution proceedings. Therefore, the fact that the suit was filed during the pendency of the appeal against the final decree is no reason to hold that it was a frivolous or vexatious suit. The appellant would contend that separate suit to declare that the preliminary decree is a nullity for the reasons already stated was filed because the objections raised by her in the final decree application was turned down by the trial court. The suit was filed raising all the contentions to get a declaration that the preliminary decree is a nullity and so there is nothing wrong in the filing of the suit.
31. The fact that total strangers were impleaded as the legal representatives of the deceased 1st defendant was not given due consideration by the lower appellate court on R.S.A. Nos. 1182/2004 & 648/2010 -32- an erroneous assumption that the plaintiff impleaded D2 to D4 in Ext.A9 suit bonafide. But even the written statement filed by the defendants would make it clear that they made no attempt to enquire about the actual and real legal representatives of the deceased 1st defendant. It was the duty of the plaintiff to bring the actual legal representatives of the deceased on record and not some strangers of their choice and to get a decree behind the back of the actual legal representatives. Assumption made by the respondents herein, which was to some extent accepted by the appellate court that it was as per the information received, D2 to D4 in Ext.A9 suit were impleaded, is quite unconvincing and is rather unsound and untenable also. The respondents have no case that D2 to D4, impleaded in Ext.A9 suit, were having any right or interest to represent the estate of the deceased 1st defendant. Therefore, at least when objection was raised in the final decree petition, the respondent R.S.A. Nos. 1182/2004 & 648/2010 -33- should have sought to review the preliminary decree to bring on record the actual legal representatives of deceased D1 and to get a decree afresh, after the estate of the 1st defendant was/is represented by the actual legal representatives. Therefore, it is too late in the day for the respondents to lament over the matter.
32. The lower appellate court has relied upon the decision in Gopalakrishna Pillai v. Rajamma - 2006 (4) KLT 377 to hold that prior judgment cannot be upset on a mere general allegation of fraud or collusion. A party alleging fraud is bound to establish it by cogent evidence. It was held that in a suit to set aside a decree on the ground of fraud, it is open to the court to consider the question as to whether the claim of the plaintiff in the previous suit was true or false and only if the plaintiff is able to show that there was non service of summons and the same is attributable to fraud committed by the other party in the R.S.A. Nos. 1182/2004 & 648/2010 -34- previous suit with the object of keeping the present plaintiff in ignorance of the suit and of preventing him from placing his case before the Court. But here the position is different. Admittedly defendants 2 to 4 in Ext.A9 suit were not legal representatives of the deceased 1st defendant. D5 was admittedly a stranger. It is also not disputed that the appellant herein is the sole legal heir of deceased Govinda Pillai - the 1st defendant. The estate of Govinda Pillai was not represented in the suit by anybody else. Therefore, there was abatement of the suit as against the estate of the deceased 1st defendant. It is trite law that abatement is automatic and that no formal order of the court is required. If so, the decree subsequently passed would certainly be a nullity. The contention raised by the respondent and the observations made by the lower appellate court that there is no sufficient pleading regarding fraud and as to how the fraud was played, is also found to be devoid of any merit R.S.A. Nos. 1182/2004 & 648/2010 -35- since in various paragraphs of the plaint the nature of the fraud played by the plaintiff in Ext.A9 suit was narrated in detail. It was also stated that the preliminary decree passed in Ext.A9 suit is a nullity. When the suit is founded on the ground that Ext.A9 - preliminary decree is a nullity for the reasons already stated, further details regarding fraud were actually not necessary. Therefore, the observations to the contrary made by the lower appellate court is unsustainable. It is not a case of mere allegation of fraud or collusion, but a proved fraud on Court played by the plaintiffs in Ext.A9 suit. The observations made by the lower appellate court that merely because wrong persons were impleaded as legal representatives on a bonafide belief that they are the legal representatives, it cannot be said that it is a fraudulent act on the part of the plaintiff in that suit, is also unsound and unreasonable because there is nothing on record to show that D2 to D4 were impleaded on any such bonafide belief. R.S.A. Nos. 1182/2004 & 648/2010 -36- There is no factual foundation nor is there any legal evidence on that point. If so, it remains to be only a surmise.
34. It is not a case where Article 59 of the Limitation Act has any application. There was no necessity to file a suit for cancellation or for setting aside an instrument or to set aside Ext. A9 preliminary decree because the appellant was not a party to the proceedings in which the decree was passed. No doubt, if her father was alive at the time of the passing of the preliminary decree, then certainly she would be bound by the preliminary decree. But that is not the case here. Similarly, Article 113 of the Limitation Act also has no application since it is not a case where no period of limitation is provided elsewhere. It is Article 58 of the Limitation Act that would apply which says that the suit has to be filed within 3 years from the date when the cause of action first accrues.
R.S.A. Nos. 1182/2004 & 648/2010 -37-
35. The learned counsel for the appellant would submit that so far as the appellant is concerned, she had raised all her contentions in the final decree application. It includes the plea that the preliminary decree (Ext.A9) is a nullity as it was passed against a dead person. That plea was raised on the premise that no legal heir of the sole deceased first defendant represented the estate of D1. The estate of the first defendant was not represented in that suit in any other manner. In order to save abatement of the suit,plaintiff cannot implead strangers as legal heirs and then contend that the suit is not abated. It is the duty of the party to implead the actual legal heirs who is competent to represent the estate of the deceased. There was no reason or justification for impleading strangers to the proceedings and to obtain a preliminary decree behind the back of the appellant. Since all the objections were raised by the appellants in the final decree proceedings R.S.A. Nos. 1182/2004 & 648/2010 -38- there was no necessity for her to rush to the Court to file a suit immediately. She could legitimately wait till the final verdict is passed in that final decree application. That final decree application was disposed of only in 2001 and as such the suit filed in 2003, within three years from the date of the pronouncement of the judgment in the final decree application, is perfectly maintainable and is well within time.
36. It is also worthwhile to note that even according to the respondents the first defendant had filed a written statement and was hotly contesting the suit and so it is not a case where, Order XXII Rule 4 (4) would have any application. Similarly, it is also not a case where the case was already heard and the death of the sole defendant took place subsequent to the hearing and before passing judgment and thus Order XXII R 6 also has no application.
37. The decision in Kutti Kunhunni Raja v.
Kuthiravattath Nair's Estate - 1960 KLT 101 can be R.S.A. Nos. 1182/2004 & 648/2010 -39- referred to here. That was a case where the Court did not pass any order to the effect that the suit has abated. But it was held that such an order, however, is unnecessary under the rule since the abatement is automatic. Meenakshi Pilliathiri Amma v. Lakshmi Amma - 1966 KLJ 898 was a case where a decree was obtained against a dead person and so it was held that the decree passed in favour of a dead person is nullity. It was further held in that case that the remedy provided under Order XXII Rule 9 is to apply for an Order to set aside the abatement and that abatement is to be set aside if the party is able to make out a sufficient case before the Court. In that case a second suit was filed and, therefore, it was held that it is not maintainable since the relief must be obtained only in the earlier suit by having recourse to Order XXII of the Code. The same is the view taken in Uma Antharjanam v. Neelakandan Namboodiri - 2001 (1) KLJ 721. R.S.A. Nos. 1182/2004 & 648/2010 -40-
38. It was held by the Hon'ble Supreme Court in Gannon Dunkerley and Company Ltd. v. Union of India
- AIR 1970 SC 1433 thus:
"The right to sue under Article 120 of the 1908 Act accrues when the defendant has clearly or unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective or innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right."
39. The decision of the Division Bench of this court in Premier Cable Company Ltd. v. Government of India and others - 1991 (1) ILR page 49 also has no R.S.A. Nos. 1182/2004 & 648/2010 -41- application to the facts of this case. That was a case where the plaintiff sued for declaration that the levy on Central Excise was without the authority of law. The suit was filed after the revision was dismissed and when the authorities took steps to recover the tax amount. In that context it was held that the suit was not barred by limitation.
40. The decision in Raghubir Jha v. State of Bihar
- AIR 1986 SC 508 also is not applicable to this case. In that case the appellant therein was discharged from service on 27.7.1961. After the appeal and revision before the Government were disposed of, a suit was filed on 7.9.1968 seeking a declaration that the Order of discharge from service was illegal and void. But there it was found that the Order rejecting the revision petition was not communicated to the plaintiff/appellant till 19.12.1965. In that context it was held that the suit was not barred by limitation. R.S.A. Nos. 1182/2004 & 648/2010 -42-
41. It was held by the Hon'ble Supreme Court in Khatri Hotels Private Limited and Another v. Union of India and another - (2011) 9 SCC 126 thus:
"While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word 'first' has been used between the words 'sue' and 'accrued'. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued".
R.S.A. Nos. 1182/2004 & 648/2010 -43-
42. But the contention that the appellant's should have filed a suit in 1985, immediately on receipt of the notice in the final decree application is bereft of any merit since the appellant had every right to contest the final decree raising grounds including the ground that the preliminary decree is a nullity and it was passed against a dead person and because his legal heirs were not impleaded in the suit. (See Chenkal Vasaya Naidu's case AIR 1994 SC 853 cited supra) If Ext.A9 preliminary decree is held to be non-est then the subsequent final decree passed, based on that non-est preliminary decree can have no legal existence.
43. In the light of what has been stated above, the view taken by the lower appellate court that the suit is barred by limitation cannot be sustained. The preliminary decree and judgment in O.S. No.1424/1968 is null and void and not binding on the appellant herein. The decree and R.S.A. Nos. 1182/2004 & 648/2010 -44- judgment of the lower appellate court is set aside and the decree and judgment passed by the trial court in O.S. No.4/2003 is restored. Hence, R.S.A. No.1182/2004, which is directed against the final decree passed in Ext.A9 preliminary decree, is also to be allowed.
In the result, both these appeals are allowed. The preliminary decree and subsequent final decree and judgment passed in O.S. No.1424/1968 are null and void and not binding on the appellant. The final decree passed pursuant to the preliminary decree (Ext.A9) in O.S. No.1424/1968 is set aside. No costs.
Sd/-
N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj/ani