Full Judgment Text
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PETITIONER:
CUSTODIAN OF BRANCHES OF BANCO NATIONALULTRAMARINO.
Vs.
RESPONDENT:
NALINI BAI NAIQUE
DATE OF JUDGMENT28/04/1989
BENCH:
SINGH, K.N. (J)
BENCH:
SINGH, K.N. (J)
SAIKIA, K.N. (J)
CITATION:
1989 AIR 1589 1989 SCR (2) 810
1989 SCC Supl. (2) 275 JT 1989 Supl. 159
1989 SCALE (1)1410
ACT:
Portugees Law of Inheritance in Goa-Holder of ’Meeira’
rights-Whether legal heir--Whether competent to be substi-
tuted as a party under the Code of Civil Procedure.
Code of Civil Procedure, Order XXII, Rule 4: Holder of
’Meeira’ rights under the Portugees Law of
Inheritance--Whether a ’legal representative’--Whether
represents the entire estate--Other heirs not brought on
record within time--Suit whether abates.
’Legal representative’--Connotation of--Code of Civil
Procedure. 1908, O.22. R. 4.
HEADNOTE:
The appellant bank instituted a suit against respond-
ent’s husband for recovery of a large amount advanced as
loan. The defendant contested the suit. issues were flamed
and evidence was being recorded. He, however, died before
the next hearing on 4th November, 1970 when the court was
informed by his pleader orally about his demise. The appel-
lant on inquiry learnt on 7th November that the defendant
had died on 4th August. The 8th November being Sunday, an
application under Order XXII Rule 4 of CPC was filed on 9th
November for bringing on record the widow as his legal
representative. Another application for condoning delay in
making the application was also made. The appellant later
made another application requesting to treat the latter
application as an application under Order XXII Rule 9 for
setting aside the abatement of the suit. These applications
were contested by the respondent on the ground that the news
regarding the death of her husband had been published in the
local newspapers and the plaintiffs had knowledge of his
death, and that the suit had abated as no application for
setting aside abatement had been filed within time.
In the meanwhile, the appellant made another application
for adding the names of four sons and two daughters of the
deceased defendant on the ground that earlier it had no
knowledge about that. On behalf of the respondent, it was
asserted that the application for
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substitution was not maintainable as it was filed beyond
time, and in the alternative she was not the legal heir of
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the deceased defendant but only his "Meeira" and as other
legal heirs of the deceased defendant were not brought on
record within time the application was not maintainable.
The trial court found that the application under Order
XXII Rule 4 was not barred by time since it had been filed
within four days of coming to know of defendant’s death. It
further held that since the widow, one of the legal repre-
sentatives of the deceased-defendant, was brought on record
within time the sons and daughters could also be impleaded
as defendants along with her. It, therefore, set aside the
abatement of the suit.
The Judicial Commissioner, however, took the view that
the widow was not a legal representative of the deceased as
under the Portugees Law she had acquired Meeira rights and
her status was not that of ’Cabeca De Casal’ (Head of the
family and administrator) of the other heirs of the de-
ceased. Since all the heirs of the deceased defendant had
not been brought on record alongwith the widow within time,
the suit had abated as she alone could not represent the
estate of the deceased defendant.
Allowing the appeals,
HELD: 1.1 The trial court committed no error in law in
allowing the substitution application. [815EF]
1.2 A ’legal representative’ as defined in Civil Proce-
dure 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 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 rifle
either as executors or administrators in possession of the
estate of the deceased. All such persons would be covered by
the expression ’legal representative’. If there are any
heirs, those in possession bona fide, without there being
any fraud or collusion, are also entitled to represent the
estate of the deceased. The Civil Procedure Code was ap-
plicable to the proceedings in the instant case. [814G-815A]
812
1.3 The respondent had acquired ’Meeira’ rights under
the Portugees Law of Inheritance, which was applicable to
Goa at the relevant time, according to which she had ac-
quired half share in the estate left by her husband and the
remaining half share was inherited by sons and daughters of
the deceased. As she was brought on record within time, she
represented the estate of the deceased defendant and the
suit could proceed on merits. The impleadment of other legal
representatives at a subsequent stage could not affect
validity of the proceedings. [815B, 816C]
Daya Ram & Ors. v. Shyam Sundari, [1965] 1 SCR 231 and
N.K. Mohd. Sulaiman v. N.C. Mohd. Ismail, [1966] 1 S.C.R.
937, referred to.
Mannem Venkataramaih v. M. Munnemma & Ors., AIR 1963
A.P. 406, approved.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1154-1155
(N) of 1974.
From the Judgment and Order dated 30.6.1972 of the Court
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of Judicial Commissioner of Goa, Daman and Diu in Civil
Revision Application Nos. 13 and 14 of 1972.
Anil Dev Singh and Miss A. Subhashini for the Appellant.
S.K. Mehta and Dhruv Mehta for the Respondent.
The Judgment of the Court was delivered by
SINGH, J. This appeal is directed against the judgment
and order of the Judicial Commissioner, Goa dated 30.6.1972
setting aside the order of the Civil Judge, Senior Division,
Panaji and declaring that the suit instituted by the appel-
lant had abated.
The appellant Bank instituted a suit before the Civil
Judge for recovery of an amount of Rs. 63,315 against Vi-
naique Naique, advanced to him as loan by it. Vinaique
Naique, the defendant contested the suit, issues were framed
and evidence was being recorded. On 26.2. 1970 statement of
PW-I was recorded and the case was adjourned to another date
but on that date also the case was adjourned to 23.7.1970.
The suit was again adjourned on 23.7. 1970 on the ground
that the defendant Vinaique Naique was indisposed and
813
was hospitalised. Thereafter, the suit was taken up for
hearing on 4.11. 1970. On that date the defendant’s pleader
informed the Court orally that the defendant had died at
Margaon but did not give any further details. The Custodian
of the appellant Bank Panaji deputed his clerk to Margaon to
collect necessary information and to obtain death certifi-
cate from the Civil Registration Office if the defendant was
found to be dead. The clerk visited Margaon on 5th and 6th
November, 1970 and on enquiry he came to know that the
defendant had died on 4.8.1970, he obtained death certifi-
cate from the Civil Registration Office on 6.11.1970 and
handed over the same to the Custodian of the Bank on 7th
November, 1970. Since 8th November, 1970 was Sunday, the
Custodian could not file the same in the court. The appel-
lant made application under Order XXII Rule 4 of CPC on 9th
November, 1970 for bringing on record Smt. Nalini Bai Naique
as the legal representative of the deceased original defend-
ant. He made another application for condoning delay in
making the application duly supported by affidavit. The
appellant made another application requesting the court to
treat his earlier application made for condonation of delay
as an application under Order 22 Rule 9 for setting aside
the abatement of the suit. Smt. Nalini Bai Naique late
defendant’s widow contested the applications on the ground
that the news regarding the death of Vinaique Naique had
been published in the local newspapers and the plaintiff had
knowledge of his death and further the suit had abated on
the expiry period of 30/60 days of the death of original
defendant-as no application for setting aside abatement had
been filed within time. Meanwhile the appellant made another
application for adding the names of six heirs four sons, one
major son and three minor sons and two minor daughters of
the deceased defendant Vinaique Naique on the ground that
earlier the appellant had no knowledge about the sons and
daughters of the deceased defendant. On behalf of Mrs.
Nalini Bai it was vehemently asserted before the trial court
that the application for substitution was not maintainable
as it was filed beyond time, and in the alternative she was
not the legal heir of the deceased defendant but she was
only his ’Meeira’ and as other legal heirs of the deceased
defendant were not brought on record within time the appli-
cation for bringing the sons and daughters on record was
liable to be rejected. The trial Judge on an elaborate
consideration of the rival contentions held that even though
the news relating to the death of original defendant Vi-
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naique Naique had been reported in local newspapers but in
view of the affidavit of Custodian and other material on
record the appellant Bank came to know of the death of the
defendant only on 4. ] 1. 1970 from the deceased defendant’s
lawyer in the court and within four days thereof application
for
814
bringing the legal representative of the deceased defendant
was made, therefore, the application made under Order XXII
Rule 4 was not barred by time. The learned Judge further
held that since Smt. Nalini Bai Naique one of the legal
representative of the deceased defendant was brought on
record within time, the sons and daughters could also be
impleaded as defendants along with her. On these findings
the learned Judge by his order dated 16.11. 1971 set aside
the abatement of the suit and directed for substituting the
name of the widow Smt. Nalini Bai Naique along with the name
of four sons and two daughters as defendants to the suit in
place of deceased defendant Vinaique Naique. Mrs. Nalini Bai
filed a revision application under Section 115 of Code of
Civil Procedure before the Judicial Commissioner of Goa at
Panaji against the aforesaid order of the trial Judge. The
Judicial Commissioner by his order dated 30.6.1972 set aside
the order of the trial Judge and declared the suit to have
abated. Aggrieved the plaintiff Bank has preferred this
appeal after obtaining special leave.
The learned Judicial Commissioner interfered with the
order of the trial Judge on the sole ground that Mrs. Nalini
Bai whose name was proposed to be brought on record was not
legal representative of the deceased Vinaique Naique as
under the Portugees Law she being the widow had acquired
Meeira rights and her status was not that of "Cabeca De
Casal" (Head of the family and administrator) of the other
heirs of deceased Vinaique Naique. Since all the heirs of
the deceased defendant had not been brought on record along
with Mrs. Nalini Bai within time the suit abated as Mrs.
Nalini Bai alone could not represent the estate of the
deceased defendant. The learned Judicial Commissioner did
not interfere with other findings recorded by the trial
Judge, instead he set aside the order of the trial Judge on
the sole ground as aforesaid, and declared the suit to have
abated.
After hearing learned counsel for the parties, we are of
opinion that the learned Judicial Commissioner committed
serious error of law in setting aside the order of the trial
Judge. "Legal representative" as defined in Civil Procedure
Code which was admittedly applicable to the proceedings in
the suit, 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
815
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". If there are many heirs,
those in possession bona fide, without there being any fraud
or collusion, are also entitled to represent the estate of
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the deceased. In the instant case it is not disputed that
under the Portugees Law of Inheritance which was applicable
to Goa at the relevant time Mrs. Nalini Bai had acquired
"Meeira rights" according to which she had acquired half
share in the estate left by the deceased Vinaique Naique and
the remaining half share was inherited by sons and daughters
of the deceased who were subsequently brought on record. On
the admitted facts Mrs. Nalini Bai therefore represented the
estate of the deceased Vinaique Naique. Once the name of
Mrs. Nalini Bai was brought on record within time and the
application for setting aside abatement was allowed by the
trial Judge, the suit could proceed on merits and the mere
fact that the remaining legal representatives were brought
on record at a subsequent stage could not render the suit
defective. The Custodian of the appellant Bank had no knowl-
edge that there were other legal representatives of deceased
defendant along with Mrs. Nalini Bai. He had filed affidavit
that on making diligent and bona fide inquiry, he had come
to know that Nalini Bai was the sole legal representative
but later on he acquired knowledge that the deceased had
left four sons and two daughters as legal representatives,
along with Mrs. Nalini Bai, therefore, he made another
application for bringing them on record. The trial Judge
accepted the testimony of the Custodian, and placing reli-
ance on the decision of Andhra Pradesh High Court in Mannem
Venkataramaih v. M. Munnemma & Ors., AIR 1963 A.P. 406 he
allowed the substitution application. The trial court com-
mitted no error in law, instead he applied correct princi-
ples of law.
In Daya Ram & Ors. v. Shyam Sundari, [1965] 1 SCR 231
this Court recognised the principle of representation of the
estate by some heirs, where the defendant died during the
pendency of the suit to enforce claim against him and all
the heirs are not brought on record within time. This Court
held that if after bona fide inquiry, some, but not all the
heirs, of a deceased defendant, are brought on record the
heirs so brought on record represent the entire estate of
the deceased and the decision of the Court in the absence of
fraud or collusion binds even those who are not brought on
record as well as those who are impleaded as legal represen-
tatives of the deceased defendant. In N.K. Mohd. Sulaiman v.
N.C. Mohd. Ismail, [1966] 1 SCR 937 this Court
816
rejected the contention that in a suit to enforce a mortgage
instituted after the death of a Muslim, if all the heirs of
the deceased were not impleaded in the suit and a decree was
obtained, and in execution the property was sold, the auc-
tion purchaser could have title only to the extent of the
interest of the heirs who were impleaded, and he could have
no title to the interest of those heirs who had not been
impleaded to the suit. The Court held, that those who were
impleaded as party to the suit in place of the deceased
defendant represented the entire estate as they had share in
the property and since they had been brought on record the
decree was binding on the entire estate
In the instant case Mrs. Nalini Bai had admittedly hall
share in the property left by the deceased defendant and as
she was brought on record within time, she represented the
estate of the deceased defendant and the suit could proceed
on merit. In this view the impleadment of other legal repre-
sentatives at a subsequent stage could not affect validity
of the proceedings. In the result we allow the appeal and
set aside the judgment and order of the Judicial Commission-
er dated 30.6.1972, and restore the order of the trial
Judge. Since trial of the suit has been delayed, we direct
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the trial court to make every effort to decide the suit
expeditiously. The appellant is entitled to its costs
throughout.
P.S.S. Appeal allowed.
817