Second Civil Appeal No.20 of 1997

21st January, 1997

Petitioner Counsel: Shri. NITIN SARDESSAI

Cases Cited:
AIR 1989 SC 1589 [Para 9]
Civil Rev. Appln. No.169/83 [Para 11]
AIR 1987 SC 1353 [Para 13]

JUDGMENT

JUDGMENT :- The appellants had filed a suit for recovery of possession of the suit property, for declaration that they are owners of the suit property; for rectification of the survey records, mesne profits and for permanent injunction restraining the respondents and her husband from interfering with the suit properties. the suit was filed on 5-12-1984 and, as can be seen from judgments of two Courts below, it appears that the said suit came up for hearing for the first time on 24-3-1988, when it was fixed for filing of written statement/settlement of issues. On that day, respondent, namely defendant No.2. filed an application stating that defendant No. had died in the year 1986; the heirs were not brought on record and she required time to file written statement as she had to obtain necessary documents.

2. On 8-6-1988 the appellants filed an application for bringing heirs of deceased defendant No.1 on record. In the said application it was contended by the appellants that the suit had come up for hearing for the first time on 21-3-1988 (it appears that actually it had come up for hearing on 24-3-1988) for written statement of defendants; the plaintiffs had been in Bombay all along and came occasionally to Goa on short holiday; that they came to know of the death of defendant No.1 which took place in the year 1986, only on 21-3-1988 (again there is a mistake in the date) for the first time. Accordingly, the appellants expressed their desire to bring heirs of deceased defendant No.1 on record and prayed before the Court that defendant No.2 be directed to furnish to the plaintiffs names with their respective addresses of sons and daughters of the deceased defendant No.1. It was also prayed that the delay be condoned for reasons stated above as they had no knowledge of the death of defendant No.1 till 24-3-1988. This application was supported by affidavit of plaintiff No.1, namely, appellant No.1.

3. Respondent/defendant No.2 filed reply to this application stating that the plaintiffs are residing at the same place where the defendants reside and ought to have known of the death of defendant No.1; that the suit is for declaration and other reliefs due to which the suit abates as a whole; that the application for bringing heirs on record is not tenable and that the application be dismissed as well as the suit which has abated.

4. After hearing Advocates for the parties, the trial Judge came to the conclusion that the suit has abated as a whole and that the suit was dismissed. The appellants went in appeal before the district Court at Panaji and learned Additional District Judge, vide impugned judgment dated 29th March, 1991, dismissed the appeal which brings the appellants in second appeal in this Court.

5. The Second Appeal was admitted on two substantial questions of law, namely :-

(1) Where the wife is already on record and the estate is represented, whether the suit for declaration, possession and cancellation could have been dismissed as having been abated.

(2) Whether on the facts and circumstances of the case, the Appellants had shown sufficient cause for bringing the legal heirs on record.

6. Learned Advocate Shri Nitin Sardessai made the following submissions before me :-

(1) Suit does not abate as a whole ;

(2) The estate was sufficiently represented by respondent/defendant No.2 which militates against the principles of abatement;

(3) Advocate for the defendants did not inform the Court of the death of defendant No.1 in terms of Order 22, Rule 10-A C.P.C.; and

(4) Sufficient cause had been shown by the appellants to set aside abatement from the date of knowledge of death of defendant No.1.

I shall deal with the points raised by Advocate for the appellants one by one.

7. In respect of the first submission, it has been contended by the learned Advocate for the appellants that the suit may, at the most, abate as against defendant No.2 whose heirs were not brought on record, but it does not abate as a whole. Some of the tests which are relevant for judging the question whether a suit will abate in its entirety for non-impleading the legal representatives of one of the defendants, who died during the pendency of the suit, are :-

(a) Whether the deceased defendant was a necessary party in the suit, or, in other words, if the plaintiff could file the suit excluding the deceased defendant;

(b) Whether the decree which is to be passed in case the plaintiff succeeds in the suit will be rendered ineffective in the absence of legal representatives of the deceased defendant; and

(c) Whether there is likelihood of conflicting decrees coming into existence.

Admittedly, the suit is for declaration of ownership, recovery of possession and injunction subsequent to declaration. In the absence of legal heirs of deceased defendant No.1, obviously, suit of such nature could not be proceeded with in view of the tests which have been enumerated above. I, therefore, cannot accept the contention of learned Advocate for the appellants that on account of non-impleading of legal heirs of deceased defendant No.1, the suit will abate only against deceased defendant No.1 and not as a whole. His contention is that non-joinder of the legal heirs may, at the most, lead to non-granting of relief at the final stage, but on that count the suit could not be dismissed as a whole on the ground of abatement. This contention of learned Advocate for the appellants does not merit any consideration.

8. The next submission which has been advanced by learned Advocate for the appellants is that Advocate for the defendants had not performed the statutory duty of informing the Court of the death of defendant No.1. There is also no merit in this contention, since it is the case of the appellants that the suit had come up for filing of written statement/settlement of issues for the first time on 24-3-1988 and it is on the first date itself that Advocate for the defendants had informed the Court by filing an application that defendant No.1 had died.

9. The third contention advanced by learned Advocate for the appellants is that the respondent/defendant No.2, being moiety holder of the suit property in respect of which relief was sought, continued to substantially represent the estate even after the death of her husband and in the absence of heirs being brought on record and in view of the said substantial representation, the suit could not abate as a whole. In support of his contention, learned Advocate for the appellants has relied upon a judgment of the Apex Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique (AIR 1989 SC. 1589). This ruling has direct bearing in the matter and it is necessary to quote the following observations of the Apex Court in this respect :-

" "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 to 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". 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 the deceased. Under the Portugees Law of Inheritance a widow acquires "Meeira rights" according to which she gets half share in the estate left by her deceased husband. Such widow therefore represented the estate of her deceased husband. When in a suit against the husband of such Portugees widow and after the death of her husband, the name of his widow is brought on record within time, the abatement of suit would be liable to be set aside, and the suit could proceed on merits notwithstanding the fact that the remaining legal representatives of the deceased husband were brought on record at a subsequent stage. That could not render the suit defective."

Though, these observations were made by the Apex Court in a suit for recovery of money, yet the principles can be imported and applied to suits relating to immovable property. Of course, in the suit before the Apex Court, initially, only the wife was brought on record as legal representative on the death of her husband who was the sole defendant. it was contended before the Apex Court that the plaintiffs therein after making diligent and bonafide enquiry had come to know that the wife was the sole legal representative, but, later, they acquired knowledge that the deceased had left 3 sons and 4 daughters as legal representatives and the said sons and daughters were also joined later on but beyond the time prescribed under law.

10. In the case under consideration, the suit was filed for declaration of ownership, recovery of possession and other reliefs against husband and wife, namely, defendants Nos. 1 and 2. The husband died leaving the wife who would be the moiety-holder in relation to the property in question. It is also pertinent to note that her moiety right is in relation to the undivided suit property and, as such, prima facie, it can be said that she contined to represent the estate even after the death of her husband and this representation could be considered as substantial representation. This, however, would not dispense with the bringing of the heirs on record for the purpose of effectively determining the suit as against all the legal representatives. In fact, in the case under consideration, the appellants had expressed their desire to bring the legal heirs of deceased defendant No.1 on record and for that purpose sought details from defendant No.2 and also prayed for condonation of delay in bringing the legal heirs on record. Therefore, in the facts and circumstances of the case, the suit did not abate as a whole.

11. The last contention advanced by learned Advocate for the appellants is that the appellants had come to know of the death of defendant No.1 only on 24-3-1988; that they did not know the details of the heirs and there was some delay in filing condonation application. On this aspect, the trial Judge and the appellate Judge have taken a very narrow view of the matter. The trial Judge went by the title of the suit which had shown the address of the appellants and that of the respondent as living in houses adjacent to each other, whereas the appellant No.1 on affidavit had stated that they were living in Bombay. No counter-affidavit was filed by the respondent to challenge the said fact. Of course, the appellants had not stated how occasionally they used to come to Goa which could certainly be taken as a factor against them while considering whether the appellants had shown any sufficient cause for not moving the application for bringing heirs on record within the time-limit prescribed by law. Of course, the trial Court found that sufficient cause was not shown. The appellate Court proceeded likewise and stated that no evidence was produced by appellant No.1 that he was really in Bombay after the institution of the suit. According to appellate Judge, delay in filing of the application in question for almost 2 and half months after the alleged date of knowledge was a grossly negligent act on account of which it was held that sufficient cause was not shown. Reliance was placed on the judgment of Single Judge of this Court in Govind Damu Natekar and his wife v. Premavatibai Sitaram Natekar (Civil Revision Application No.169/83). It is stated by the appellate Judge that the facts therein were similar and the suit was held to be rightly dismissed as abated.

12. It is settled law that abatement is automatic and on the expiry of the period for bringing legal heirs on record, the suit automatically abates and no order is required in this respect. Defendant No.1 had admittedly died in the year 1986 and the suit as against defendant No.1 automatically stood abated at the end of the period prescribed for bringing legal heirs on record. The question which remained to be decided was whether the suit abated as a whole. I have already stated above that taking into account the relief sought by the appellants the suit would abate as a whole for not bringing the heirs on record, though, in the facts and circumstances of the case it did not abate as a whole. Alternatively, even if the suit is taken as abated as a whole, the remedy for the appellants in such a situation is to apply for settling aside of abatement and for condonation of delay in bringing the legal heirs on record. There is no doubt that the application in question filed by the appellants on 8-6-1988 for bringing heirs on record does not, in fact, seek setting aside of abatement. However, what is important to note is that the appellants did file an application for condemnation of delay in bringing the heirs on record and non-mention of relief of setting aside the abatement would be a mere technicality under the circumstances even though the appellants should have asked for setting aside of abatement.

13. The case of the appellants is that they had come to know of the death of defendant No.1 on 24-3-1988. The appellants had filed affidavit in support of the said contention wherein it was stated that the appellants had been in Bombay all along and come to Goa occasionally on short holiday. Even in the absence of details as to how occasionally they used to come to Goa, knowledge of death of defendant No.1, cannot, under the circumstances, be attributed to them. No affidavit in rebuttal was filed by respondent No.1 to rebut the contention of the appellants that they had been all along in Bombay nor she gave any details as to when the appellants had come to Goa. In such eventuality, the appellants' case that they had come to know of the death of defendant No.1 on 24-3-1988 can, prima facie, be accepted. Even after the date of knowledge, the application was filed after about 2 and half months. The case of the appellants is that they were not aware of the legal heirs of defendant No.1 and, in fact, in the said application they had sought details of heirs of defendant No.2. This contention of appellants was not rebutted by respondent by filing any affidavit that the appellants were aware of her legal heirs. Naturally, if the legal heirs are not known, some time will be taken for the purpose of making enquiries to find out the legal heirs. It is now well settled that sufficient cause has to be liberally construed so as to advance cause of justice and when there is no gross negligence, deliberate inaction or lack of bonafides, delay can be condoned. The Apex Court in Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others (AIR 1987 SC 1353) has laid down :-

"The legislature has conferred the power to condone delay by enacting S.5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that :-

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal...."

Applying the principles laid down by the Apex Court, it cannot be said that there was either gross negligence, deliberate inaction or lack of bonafides in making the application under consideration. The Courts below should have accepted the cause shown for not filing the application for bringing heirs on record immediately after the date of knowledge of death.

4. For the aforesaid reasons I am of the opinion that the Appeal succeeds on the substantial questions of law raised in this Appeal, subject to observations made in the Order. The respondent was not represented before this Court since she had refused notice sent by Registered Post. However, the respondent did contest the application in question before the Trial Court as well as before the appellate Court, which naturally involves expenditure. I would, therefore, award costs in favour of respondent which are quantified at Rs.1,000/- as the matter was contested by her in the trial as well as in appellate Courts though no appearance was put in before this Court.

5. Accordingly, the Appeal is allowed and the Orders of two Courts below are set aside. The appellants shall furnish details of the legal heirs of defendant No.1 to be brought on record within a period of one month from today, in the Court below. Appeal stands disposed of accordingly. The appellants shall deposit the costs with the trial Judge which will be condition precedent for filing the application in question. C.c. to be expedited.

Appeal allowed.