Mr. Banwari Lal Sharma, J. - Petitioner/defendant Bhanwar Devendra Singh and petitioner/substituted defendant Smt. Kusum Kumari assailed the impugned order dated 21.12.2009 passed by learned Additional District Judge No. 4, Jaipur city Jaipur in Civil Regular Suit No. 152/2006 (241/1992) whereby learned Court below dismissed the applications submitted by petitioners Bhanwar Devendra and Smt. Kusum Kumari under Order 22, Rule 4 (3) C.P.C. dated 8.9.2009 and 15.9.2009 respectively.
2. Since the applications of petitioners dated 8.9.2009 and 15.9.2009 decided by common impugned order dated 21.12.2009 and revisions were filed separately by petitioners Bhanwar Devendra Singh and Smt. Kusum Kumari, therefore both revisions are heard today and are being decided by this common order.
3. The brief facts of the case are that a suit for specific performance of contract is pending against the petitioners along with other defendants. During pendency of suit defendant No. (3) Surya Vijay Singh expired on 8.11.2003. Petitioner Bhanwar Devendra Singh filed an application under Order 22, Rule 4 (3) C.P.C. and petitioner/substituted defendant No. 1/1 Smt. Kusum Kumari filed another application under Order 22, Rule 4 (3) C.P.C. on 15.9.2009 stating therein that defendant No. (3) Suiya Vijay Singh expired on 8.11.2003 but no steps were taken for bringing on record his legal representatives.
4. It is further stated that defendant No. (3) Surya Vijay Singh was son of divorced wife of Shri Sangram Singh and Smt. Daulat Kumari. Therefore, Daulat Kumari natural mother is only Class I heir of Surya Vijay Singh as per Hindu Succession Act.
5. Smt. Daulat Kumari is alive but no steps were taken for bringing her on record. Therefore, the whole suit has been abated, therefore, same may be dismissed.
6. While filing reply to the applications plaintiffs stated that after death of defendant No. (1) Sangram Singh, his legal representative Smt. Kusum Kumari has already been taken on record as defendant No. 1/1 and amended cause title has already been filed in this regard on 25.3.1995.
7. Since, the LR of defendant No. (3) Surya Vijay Singh is already thereon record, therefore, suit cannot be abated. This Court in the matter of S.B. Civil Misc. Appeal No. 279/1998 called for the record of the suit wherein defendant No. 2 filed an application on 4.11.2004 stating therein that defendant No. 3 Surya Vijay Singh has expired on 8.11.2003. Therefore, the appeal is abated.
8. The application was replied by the defendants wherein it was stated that mother of defendant No. (3) Smt. Kusum Kumari is already there on record as respondent No. 1/1. Therefore, appeal cannot be abated.
9. After hearing the application dated 27.11.2004 was dismissed by the Co-ordinate Bench of this Court vide order dated 13.5.2005. In view of its also the application may be dismissed.
10. Learned Trial Court after hearing both the parties dismissed the application of petitioners vide impugned order dated 21.12.2009 hence these revision petitions.
11. Shri Kamalkar Sharma learned Senior Counsel appearing on behalf of petitioners submits that Ms. Kusum Kumari is step mother of deceased Surya Vijay Singh and Smt. Daulat Kumari is natural mother of Surya Vijay Singh. Smt. Daulat Kumari was divorced by the father of Surya Vijay Singh long back and is residing separately who is alive and is Class I heir of deceased Surya Vijay Singh. No steps were taken for bringing her on record as legal representative of deceased Surya Vijay Singh, therefore, the whole suit is abated. Learned Court below without considering this fact wrongly rejected the applications, therefore impugned order may be quashed and set aside.
12. Per contra Shri Sudhanshu Kasliwal learned Senior Advocate appearing on behalf of respondent plaintiffs submits that legal representative is defined in Section 2(11) of C.P.C. that means the person who in law represents the estate of a deceased person, and includes person, who inter-meddles with the estate of deceased. He submits that Smt. Kusum Kumari step-mother and Devendra Singh brother of deceased are already on record who inter-meddles with the estate of deceased, therefore, suit cannot be abated. Shri Kashliwal Senior Counsel submitted that Smt. Daulat Kumari has also expired.
13. Learned Counsel relied on Sanna Govappa v. Rodda Sanna Govappa & Ors., AIR 1929 Madras 482, Chandri v. Hiralal & Anr., AIR 1933 Nagpur 73, Bibhuti Bhusan Roy & Anr. v. Narendra Narayan Ghose & Ors., AIR 1951 (38) Calcutta 228, Jagannadhadas v. Tirthanannda, AIR 1952 Orissa 312, Custodian of Braches of Banco National Ultramarino v. Nalini Bai Naique, 1989 Supp. SCC 275, Yogenda Bhagata & Ors. v. Pritlal Vadav & Ors., AIR 2009 Patna 168 (Full Bench) and Sudama Devi & Ors. v. Jogendra Choudhary & Ors., AIR 1987 Patna 239 (Full Bench).
14. I have considered the submissions made by learned Counsels and also perused the impugned order and available record.
15. It is not disputed that defendant No. (3) Surya Vijay Singh expired on 8.11.2003. It is also not disputed that after death of Surya Vijay Singh, no application was filed by the plaintiffs for substitution of legal representatives of deceased defendant No. (3) Surya Vijay Singh.
16. The question arises for consideration before this Court is that:-
17. Whether on the death of defendant No. 3 Surya Vijay Singh during the pendency of suit filed by respondents plaintiffs before the Trial Court, in view of the fact that no application was made within stipulated period prescribed by Law of Limitation for substitution of the legal representatives, the whole suit had abated or not?
18. The controversy raised is in relates to Order 22, Rule 4 C.P.C which reads as under -
Procedure in case of death of one of several defendants or of sole defendant.
(1) Where one of two or more defendants dies and the rights to sue does not survive against the surviving defendants or defendants alone, or a sole defendant or sole surviving defendant dies and the right behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.
[(5) Where-
(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under Section 5 of that Acton the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said Section 5 have due regard to the fact of such ignorance, if proved.]
The word "Legal Representative" is used in the above provision which is defined in Section 2(11) of C.P.C. which reads as under-
"Legal Representative" means a person who in law represents the estate of a deceased person, and includes any person who inter-meddles 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;"
19. It is plain from the above that the definition herein is a wide and inclusive one and conceives of two distinct categories. Firstly, the heris or person, who in law represent the estate of the deceased person. However, at par with them and in a class by itself is any person who inter-meddles with the estate of the deceased. Such a person is equally a legal representative. Now, the phrase inter-meddler with the estate has come to be a term of art and has been construed as one of the widest amplitude. This apart, even the dictionary meaning of the word is one of considerable width. In Chamber''s Twentieth Century Dictionary the word ''meddle'' is given the meaning to "interfere unnecessarily, or, without being entitled". In the New Oxford Illustrated Dictionary, ''meddle'' means to concern one-self with what is not ones business. According to the Random House Dictionary ''inter-meddler'' means one who "interferes or inter-meddles" which in turn means to "interfere or inter-meddles", which in turn means to "interfere officiously and unwantedly". It is thus manifest that even on its plain dictionary meaning the word is one of wide amplitude.
20. From the aforesaid meaning inter-meddling means to meddle with the affairs of other in which one has no concern, to meddle officious; to interpose or interfere improperly. It signifies meddling with the property of another improperly. Inter-meddling may take several forms collecting or taking possession of the assents or other act, which might evince a legal control.
21. A legal person, who inter-meddles, is on the same footing as an executor de son tort (executor of his own wrong) as he takes upon himself the office of an executor by intrusion and not so constituted by the testator. He is a person who without authority inter-meddles with the estate of the deceased.
22. From the perusal of aforesaid definition of "Legal Representative" it is clear that it means that the person who represents the estate of a deceased person which includes in person who inter-meddles with the estate of deceased.
23. Here in the case in hand Smt. Kusum Kumari Step-mother and Devendra Singh brother of deceased who are co-sharers of the suit property are already on record as defendants as inter-meddlers, therefore, they are legal representative of deceased Surya Vijay Singh as defined in Section 2(11) of C.P.C.
24. In the matter of Sanna Govappa v. Rodda Sanna Govappa (supra) Chandari v. Hiralla & Anr. (Supra), Bibhut Bhusan Roy & Anr v. Narendra Narayan Ghose & Ors. (supra) and Jagannadhadas v. Tirthananda (supra) Hon''ble Madras, Nagpur, Calcutta and Orissa High Courts observed that even after wrong legal representative is impleaded bona fidely, the decree is binding one real legal representative and it was also observed that "Legal Representative" includes those who represent the estate even though when title has enshrined in Section 2(11) of C.P.C.
25. In the matter of Custodian of Branches of Banco National Ultramarino v. Nalini Bai Naique (supra), Hon''ble Supreme Court also observed that "Legal Representative" includes inter-meddlers to estate as enshrined in Section 2(11) of C.P.C.
26. In the matter of Yogendra Bhagata & Ors. v. Pritlal Yadav & Ors. (supra) Full Bench of Patna High Court while interpreting Order 22, Rule 10 (A) read with Order 22, Rule 10 C.P.C. held that-
"Due to death of one co-owner of suit property, during pendency of appeal whole appeal would not abate. Since other co-owner apart from being brothers were inter-meddlers to estate of decree."
It was further observed that-
"In an appeal arising out from a decree passed in a suit for obtaining possession by ejecting trespassers, if one of the co-owner-respondents (plaintiffs) dies during the pendency of the appeal then in presence of the other co-owners-plaintiffs, the whole appeal would not abate. The definition of word "Legal Representative" as provided under Section 2(11) of the Code is inclusive in character and its scope is wide. It is not confined in a preferred class of heirs only but also includes even inter-meddlers. In the instant case, apart from being co-owners, some of the plaintiffs were brothers also and even if they were Class II heris, they being inter-meddlers to the estate of deceased, in the facts and circumstances of the case, represent him. Therefore, there is not question of abatement of the entire appeal."
27. In the matter of Sudama Devi & Ors. v. Jogendra Choudhary & Ors. (supra), the suit for partition was filed against father and minor son and their suit was decreed. During pendency of appeal by defendants minor died and mother who was Class I heir of deceased was not brought on record within time. In that full eventuality Patna High Court held that appeal did not abate as father became his legal representative as inter-meddler on minor''s death.
28. In the matter of Jaigopal Verma @ Madhushudan v. Rajendra Singh Sacheti, Coordinate Bench of this Court while interpreting Order 22, Rule 10 (A) read with Order 22, Rule 10 C.P.C. observed that-
"Abatement of suit is not proper without full information about death and survival of right to sue is not furnished.
Providing merely the information with regard to this fact of death is more sufficient compliance of the Order 22, Rule 10 (A) C.P.C. unless and until the Counsel enshrines the information with regard to the details of the persons on whom and against whom the right to sue survives and the information under Order 22, Rule 10 (A) C.P.C. and the object behind it could remain incomplete. Parties would still be labouring to inquire who are the legal representatives and find out as to upon whom and against whom the right to sue survives."
29. In the case in hand petitioners defendants never pleaded before Trial Court that Sangram Singh got married twice. Even after death of Sangram Singh when the application for substitution was filed by the plaintiffs in its reply defendants never pleaded that Sangram Singh got married twice.
30. This fact was disclosed firstly in the application of Smt. Kusum Kumari that the natural mother of Surya Vijay is Smt. Daulat Kumari. The said Daulat Kumari also not filed any application under Order 1, Rule 10 C.P.C. for impleadment.
31. Even Counsel for late Surya Vijay Singh defendant No. 3 after death of Surya Vijay Singh never informed the Trial Court regarding the legal representatives of deceased Surya Vijay Singh in compliance of provision enshrined in Order 22, Rule 10 (A).
32. It is duty of the Counsel as per Order 22, Rule 10 (A) C.P.C. that after death of his client he should inform the Court not only in regard to the death of his client but also regarding legal representative/representatives of deceased party. In absence thereof some times it is very difficult to the plaintiff to bring on record all the legal representatives of deceased defendant.
33. It is not disputed that brother of deceased Surya Vijay Singh and his Step-mother Ms. Kusum Kumari were petitioners and are co-sharers of the suit property are already on record as inter-meddlers with estate of the deceased, are also legal representatives of deceased Surya Vijay Singh.
34. As per Order 22, Rule 4 (1) the suit can be abated only when right to sue does not survive against the remaining defendants.
35. In the case in hand the right to sue is indisputedly survive against the remaining defendants Ms. Kusum Kumari and Devendra Singh also who are petitioners before us. Therefore, no question arises for abatement of suit. Not only this between the same parties Co-ordinate Bench of this Court in S.B. Misc. Appeal No. 279/1998 during pendency of appeal Devendra respondent No. (2) (petitioner herein) has filed an application on 27.11.2004 to the effect that respondent No. (3) Surya Vijay Singh has died on 8.11.2003 and no steps have been taken for bringing on record his legal representatives, therefore, appeal be dismissed as abated wherein Co-ordinate Bench of this Court vide order dated 13.5.2005 dismissed the application observing that legal representative of deceased respondent No. (3) Surya Vijay Singh is already on record i.e. respondent No. 1/1 Smt. Kusum Kumari mother of deceased respondent No. (3). Therefore, the appeal does not abate. That order has attained finality. This Court cannot contradictory order to that order.
36. As discussed above, both Revision Petitions devoid merits which are hereby dismissed.
