Chamber Summons Nos.456 of 2007,Chamber Summons Nos.457 of 2007,Suit No.2435 of 2005

10th January, 2008

Petitioner Counsel: Mr. J. P. SEN, with Mr. PARVATI KAUSHIK
Respondent Counsel: Mr. F. D'VITRE,Mr. SHIRAZ RUSTAMJEE , Mr. FARHAN DUBHASH,M/s. FEDERAL & RASHMIKANT,Mr. ASPI CHINOY,Mr. NAVROZ SEERVAI,Mr. ABHAY JADEJA,Mr. KARL SHROFF

Cases Cited:
Dareppa Alagouda Vs. Mallappa Shivalingappa, AIR (34)1947 Bombay 307 [Para 11]
Mahindra Singh Vs. Chander Singh, AIR 1957 PATNA 79 [Para 11]
M. Veerappa Vs. Evelyn Sequeira, (1988)2 SCC 556 [Para 14,15,18]
Rustomji Dorabji Vs. W. H. Nurse, ILR 44 Madras 357 [Para 15]
Dr. Anant Trimbak Sabnis Vs. Vasant Pratap Pandit, AIR 1980 Bombay 69 [Para 17]

JUDGMENT

JUDGMENT :- Chamber Summons No. 456 of 2007 is by Indu Parmanand Patel, who is plaintiff No.2 in Suit No.2435 of 2005 along with her late husband Parmanand Patel, the plaintiff No.1. She is on record under Order XXXII, Rule 15 of the Code of Civil Procedure as a next friend of her late husband Parmanand Patel, who suffered from mental infirmity and incapacity and was not capable of protecting his interests. By this chamber summons she has prayed for being impleaded as plaintiff in place of the deceased plaintiff No.1 i.e. Parmanand Patel.

2. In brief, in Suit No.2435 of 2005 the deceased Parmanand Patel has, through his wife and next friend Indu Patel, sued for a declaration that the purported will predominantly in favour of his elder daughter Sudha Chowgule and the purported gifts almost wholly in favour of the said daughter are void having been got executed by the said daughter by exerting undue influence on him.

3. Chamber Summons No.457 of 2007 is by Jaya Patel, the daughter of late Parmanand Patel who is defendant No.2. She has prayed for being transposed as plaintiff in her capacity as a legal heir and representative of the deceased Parmanand Patel in the plaint and other proceedings. Sudha Chowgule the elder daughter of Parmanand Patel is the 1st defendant to the suit. Thus, Suit No.2435 of 2005 was filed by the late Parmanand Patel through his wife and next friend Indu Patel against his two daughters and others including the company in which he held shares after his death on 20.11.2006. His widow Indu Patel has sought impleadment as plaintiff No.1 and his second daughter Jaya Patel, defendant No.2 has sought transposition as plaintiff in the suit filed by the husband and father respectively.

4. Sudha Chowgule who was defendant No.1 and claims to be the Executor under the challenged Will of Parmanand Patel, has taken no steps for preventing the abatement of the suit.

5. Suit No. 2435 of 2005 in which these Chamber Summons arise was filed by Parmanand Patel through his wife Indu Patel as a next friend interalia for a declaration that the document purporting to be his Will dated 23.1.2005 and two letters dated 23.1.2005 purported to be gifts of shares of the defendant No.5 Company by him in favour of the defendant No.1 Sudha Chowgule are null and void and of no effect in law. This suit has been filed because according to Parmanand Patel the Will and the purported gift of shares in favour of his elder daughter Sudha Chowgule were got executed by her taking advantage of his inability to understand the consequences of his action. In fact according to the plaint allegations the defendant No.1 virtually hustled him to his office and there he was prevailed upon to sign such papers which were placed before him. Those documents turned out to be the alleged Will of Parmanand Patel and two letters purportedly addressed by Parmanand Patel to the defendant No.1 Sudha Chowgule and Arjun Chowgule purported to record that he had already handed over by way of gift, share certificates in respect of his entire 85% shareholding in the company to Sudha Chowgule. Under the letters the defendant No.1 is to become a Chair Person of the company and is to hold 90% shareholding of the company till the scheme is implemented. Under the Will the assets are to be divided equally by Executor who happens to be the elder daughter Sudha Chowgule between the two daughters. Thus in effect the late Parmanand Patel through his wife Indu Patel has prayed for annulment of the purported transfer of shares gifting 85% share holding to only one of the daughters i.e. Sudha Chowgule and the Will dividing certain property in favour of both daughters by the Executor i.e. elder daughter Sudha Chowgule.

6. By these chamber summons the widow and the second daughter Jaya Patel who are excluded from the gift entirely, have applied for being impleaded and transposed as legal representatives for continuing the suit respectively. Apparently, and for reasons not difficult to understand there is no application by the Executor, elder daughter Sudha Chowgule who is the chief beneficiary of the gift to the exclusion of her mother and sister, for continuing the suit for cancellation of the grants in her favour because she exerted undue influence.

7. Mr. Devitre, learned counsel for the applicant in chamber summons No.457 of 2007 i.e. Indu Parmanand Patel submitted that the applicant already on record as a next friend, be brought on record along with certain minor amendments as a legal representative to prosecute the suit as a plaintiff since there is no dispute of her status as a legal heir. By the proposed amendment, this applicant mainly seeks to delete the averments in the plaint appropriate to her earlier status as a next friend. The said averments are to the effect that she has no interest adverse to the plaintiff No.1 and does not seek any relief for herself in the present suit.

8. Mr. J. P. Sen, the learned counsel for the applicant in chamber summons No.456 of 2007 Jaya Patel prayed for transposition of the defendant No.2 the daughter of the deceased Parmanand Patel as the plaintiff for permission to continue the suit. This applicant Jaya Patel interalia seeks an amendment to the effect that she is entitled to prosecute the suit as an heir of Paramanand Patel and legal representative and that the defendant No.1 has an interest adverse to the estate of their father.

9. Both these applications seek impleadment of the applicants as legal heirs and legal representatives of the estate of the deceased Parmanand Patel.

10. Mr. Chinoy, the learned counsel for defendant No.1 Sudha Chowgule submitted that the applications for impleadment and transposition of the widow and younger daughter of late Parmanand Patel are liable to be rejected, interalia, on the ground that the applications are not made for being impleaded as legal representative of the estate of the deceased Parmanand Patel but in order to assert their independent rights in the suit. He further submitted that in any case the applications for being impleaded cannot be entertained in relation to that part of the suit which pertains to a challenge to the Will since that challenge is in the nature of an action in Tort and the challenge is therefore not tenable in view of maxim actio personalis moritur cum persona and that the cause of action to challenge the Will cannot be said to have survived to the heirs of late Parmanand Patel. It is also the contention of the learned counsel for the defendant No.1 that there is no power in the court to appoint an heir as a legal representative when there is an executor appointed by the deceased in the Will, the executor in this case being Sudha Chowgule, the second defendant, in whose favour the gift is said to have been made.

11. The first contention of Mr. Chinoy in opposition to the Chamber Summons is based on Order XXII which enables the Court to bring on record the legal representative of the deceased plaintiff to be made a party so that he can proceed with the suit. According to Mr. Chinoy a person who wishes to be brought on record as a legal representative can only carry on the suit as framed by the plaintiff for an assertion of and on the cause of action pleaded therein. In other words, a person who wishes to assert an independent or a right hostile to that of the deceased plaintiff is not entitled to be brought on record as a legal representative. Mr. Chinoy relied on a decision of this court in Dareppa Alagouda Vs. Mallappa Shivalingappa (AIR (34)1947 Bombay 307) and a decision of the Patna High Court in the case of Mahindra Singh and ors. Vs. Chander Singh and ors. (AIR 1957 PATNA 79) in support of the proposition.

In the first case, this court held it was not open to a legal representative of a deceased defendant to assert his individual or hostile title to the suit. It was held that if a legal representative wants to raise any new point which the deceased party could not have raised he must get himself impleaded in his personal capacity or challenge a decree in a separate suit. Therefore, where a deceased defendant was estopped from challenging his right to mortgage the vatan land beyond his lifetime his legal representative was held equally disentitled to plead that father could not mortgage the vatan land beyond his lifetime.

In the other case the Patna High Court held that the "right to sue" means the right to bring a suit asserting a right to the same relief which the deceased plaintiff asserted at the time of his death; that the legal representative of a deceased plaintiff is confined to the pleadings and case of the plaintiff, whose representative he is, and cannot agitate in that suit his own claims against the other plaintiffs in the case though he may do so in any other proceedings.

With respect, there is no doubt of the correctness of the proposition.

What needs to be considered is whether the applicants are seeking to be brought on record as legal representatives of the deceased in order to assert an independent or a hostile right or do they wish to pursue the same cause of action already pleaded by the deceased plaintiff.

12. To begin with the prayer clauses, in both chamber summons the applicants have prayed for impleadment as a legal heir and legal representative of the estate of the deceased plaintiff. Likewise, in the affidavit in support the applicants claim that they are entitled to continue the suit as heirs of the deceased plaintiff. It is true that the applicants have sought impleadment as legal representatives because they claim to be legal heirs which they undisputably are. However, merely because they have stated that they want to be brought on record as legal heir, it cannot be assumed as contended on behalf of the defendant No.1, that they seek to assert a right independent of the right asserted by the deceased plaintiff and therefore they are not entitled to be brought on record as legal representatives. A reading of the affidavits in support to the chamber summons do not bear out the contention on behalf of the defendant.

13. It was contended by Mr. Chinoy that the application for impleadment of the widow of the deceased, viz. Indu Parmanand Patel is liable to be construed as an attempt on her part to be brought on record in order to assert her individual rights and seek a relief for herself in the present suit. This contention is based on the amendment proposed by the applicant by which she seeks the deletion of the following sentence :

"Plaintiff No.2 has no interest adverse to Plaintiff No.1 and does not seek any reliefs for herself in the present suit."

It is obvious that the applicant who was the plaintiff No.2 had made the above statement in the plaint appropriate to her character as a next friend of her husband the deceased plaintiff and it is therefore, now necessary to have that sentence deleted as a legal representative. In any case because the applicant has sought an omission of the words that she does not seek any relief for herself in the present suit, it cannot be inferred that she now asserts the opposite and intends to seek relief for herself, independent of the rights sought by the deceased plaintiff or in any manner hostile thereto. There is no change in the reliefs sought in the plaint nor in the reasons for seeking those reliefs. Everything material remains the same. The applicants seek to carry on the suit as framed by the deceased plaintiff. There is therefore no merit in this submission.

14. The next contention in opposition to the chamber summons is that part of the suit in which the deceased plaintiff had prayed for setting aside the purported Will in favour of the defendant No.1 cannot continue and be pursued by the legal heirs because it is an action in torts. According to Mr. Chinoy an action in torts is invariably governed by maxim actio personalis moritur cum persona. This objection has not been made in respect of that part of the suit which seeks a cancellation of the Gift Deed. In support of the contention, Mr. Chinoy relied upon a decision of the Supreme Court in M. Veerappa Vs. Evelyn Sequeira & Ors. [(1988)2 SCC 556]. In that case, the appellant, an advocate had been sued by the respondent by the predecessor in interest of the respondent. The original respondent had sued him for professional misconduct which allegedly resulted in the plaintiffs suffering mental agony, worry and loss of reputation. The plaintiff therefore claimed compensation in the sum of Rs.20,000/- but restricted it to a lesser figure. On the plaintiff's death, the District Court held the suit abated on the ground that the suit was one for damages for personal injuries and cause of action did not survive as per the maxim actio personalis moritur cum persona. The High Court reversed the order of the District Munsif and held that cause of action survived and the legal representatives were entitled to continue the suit. Before the Supreme Court, the contention on behalf of the appellant was that the suit was one in torts and therefore abates,on behalf of the defendants that the suit was one based on the contract of engagement of an advocate. Their Lordships of the Supreme Court found that neither the District Munsif nor the High Court had considered this aspect of the matter, vide paragraph 14. Their Lordships further observed that it was not permissible for the trial court or the High Court to come to the conclusion that the suit is based fully on tortious liability and reach different conclusions about the abatement of the suit without any enquiry and recording of evidence. Having held that the claim in torts such as that for defamation, assault or other personal injuries not causing the death of the party could not continue since it was personal to the plaintiff, their Lordships were of opinion that it is necessary to remand the matter to the trial Court to enquire into the nature of the suit. It was observed that if the entire suit claim is founded on torts that suit would abate. If the action is founded partly on torts and partly on contract then such part of the claim as relates to torts would stand abated and the other part would survive. If the suit claim is founded entirely on contract, then the suit would have to proceed to trial in its entirety and adjudicated upon. Based on the above decision, Mr. Chinoy submitted that the present suit is purely an action in torts to the extent that it seeks cancellation of the Will. According to the learned counsel a will is not a contract and a challenge to it can be only by an action in tort. Since, according to the learned counsel the act of prevailing upon another to execute a Will contrary to his intention is a tortious act, to which the maxim actio personalis moritur cum persona contemplated in Section 306 of the Indian Succession Act clearly applies, the suit must be held to have abated. Section 306 of the Succession Act reads as follows :

"Demands and rights of action of or against deceased survive to and against executor or administrator. All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, 1860 (45 of 1860) or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory."

On a plain reading, this provision states that the right to sue survives in relation to all causes of action except (A) a cause of action for defamation, assault or other personal injuries not causing the death of the party, and (B) where after the death of the party the relief could not be enjoyed or granting it would be nugatory.

15. According to the learned counsel, category (A) comprises of action in torts to which the present suit belongs and therefore it must be treated as abated. Having considered the matter it does not appear that part of the present suit in which the plaintiff has sought a cancellation of the Will on the ground that the defendant No.1 prevailed upon the plaintiff to execute that Will contrary to his own wishes, constitutes an action in torts. In the first place it is well recognised that the most important attribute of action in torts is an injury to the plaintiff and the redress sought by the plaintiff by way of unliquidated damages. Winfield and Jolowicz on Tort, Thirteenth Edition states as thus :

"Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages."

An action in torts and an action in contract may lie on the same set of facts and in such a case an important distinguishing feature between the two would be whether the plaintiff has claimed redress by way of unliquidated damages as compensation for an injury done to him or whether the plaintiff has sued for damages or other reliefs on the basis of a breach of contract. An appraisal of the plaint shows that the plaintiff has set out the manner in which the defendant No.1 prevailed upon him to execute the Will and the two letters of gift and has, without praying for any compensation whether by way of unliquidated damages or otherwise straightaway sought a cancellation of the Will. While this may be broadly classified as a personal injury it appears that the suit cannot be described as an action in tort. One may sue or prosecute on the same set of facts for different reliefs in contract or crime or for breach of trust. In fact the test of an action for unliquidated damages is used in law to distinguish an action in tort from the breach of trust also. While there does appear to be some overlap in the classification test, by and large it is settled law that an action in tort is distinguished by the compensation which the plaintiff seeks in unliquidated damages for the injury done to him. The present suit is thus not an action in tort. But the question that needs to be answered is whether the cause of action in the present case survives on the death of plaintiff. For there may be cases of torts affecting the property of a wrongdoer or resulting in accretion to the property of a joint tort-feasor, when the cause of action must be taken to have survived. Similarly there may be a suit based on contract when its performance is so inextricably linked to the acts of a defendant that his death must be taken to have defeated the cause of action for e.g. the contract to do a painting vide Illus. 2 to Section 40 of the Contract Act. Granting any relief in such a case would be negatory.

As an example of when a right to sue survives in an action in tort, it may be noted in M. Veerappa Vs. Evelyn Sequeira (supra) the Supreme Court has approved the decision of the Madras High Court in Rustomji Dorabji Vs. W. H. Nurse (ILR 44 Madras 357) and observed that "the maxim actio personalis cum moritur persona have been held inapplicable only in those cases where the injury caused to the deceased person tangibly affected his estate or has caused an accretion to the estate of the wrongdoer". In other words, it is held that the cause of action survives if the injury caused to the deceased person has tangibly affected his estate or has caused an accretion to the estate of the wrongdoer. In the present case the plaintiff clearly complained of an injury which affected his estate by the unintended disposition of his property by a Will. In such a case it is not possible to accept the argument on behalf of the defendant No.1 that when the suit was filed it could not be said that the plaintiff's estate was tangibly affected because a Will takes effect only upon the death of the testator. It cannot be said reasonably that a person can be forced to make a Will regarding his estate which he does not intend to make and yet that such a Will does not affect his estate. In fact at the present when the applicants are seeking to come on record as legal representatives of the estate of the deceased plaintiff, it is clear that the estate is affected beyond any doubt; and if the Will is good they stand deprived of their share in the property of the deceased plaintiff, i.e. their husband and father respectively. In this view of the matter it is clear that the cause of action and the right to sue survives and the suit is not liable to abate on that count.

16. There is substance in the contention of Mr. Devitre, the learned counsel for the applicants that the test whether the cause of action and the right to sue survives cannot be made solely depending on the classification of the action as a tort or a contract. But it should be assessed on whether the cause of action and the right to sue survives. Thus if it appears that the plaintiff has sued for cancellation of a Will, it is clear that the suit is for cancellation of Will and if the suit fails would result in a loss to the estate. It can hardly be contended the cause of action does not survive upon the death of the plaintiff. In any case right to sue must be taken to survive where the reliefs sought would be enjoyed and granting it would not be nugatory. I am therefore of the view that for this reason also that right to sue survives in the present suit.

17. It was lastly contended by Mr. Chinoy that by virtue of Section 211 of the Indian Succession Act, the court cannot appoint a legal representative of the deceased where the testator has appointed an executor. Therefore, since the deceased plaintiff has appointed the defendant No.1 Sudha Chowgule as an executor of his Will, no legal heir such as the applicants can apply for being appointed as legal representatives. The submission is based on Section 211, which reads thus :

"Character and property of executor or administrator as such.- (1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.

(2) When the deceased was a Hindu, Muhammadan, Buddhist, [Sikh, Jain or Parsi] or an exempted person, nothing herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed by survivorship to some other person."

According to the learned counsel for the defendant this section constitutes the executor of a deceased person as his only heir legal representative for all purposes and since all the property of the deceased vests in him no one including a legal heir can be appointed as a legal representative. The submission is not correct. Firstly, because the executor is constituted as a legal representative; it does not mean that the executor alone can be the legal representative of the deceased. Even though the section says "for all purposes" and further provides that "all property" of the deceased vests in him, a Division Bench of this court in Dr. Anant Trimbak Sabnis Vs. Vasant Pratap Pandit (AIR 1980 Bombay 69) has observed as follows :

"Section 211 does make the Executor a legal representative of the testator for all purposes, and all the property of the deceased person does stand vested in him. The sweeping language of Section 211 does suggest as if intestate property also stands vested in the Executor. It must, however, be borne in mind that the Executor is liable to be appointed only with respect of the property bequeathed and not intestate property in respect of which appointment of an administrator is contemplated under Section 213 of the Indian Succession Act. The words "all property" in sub-section (1), therefore, shall have to be restricted only to the property covered by the Will, Cases are not unknown where only a fraction of the property is bequeathed. Legislature could not have intended to extend the domain of the Executor of such a Will over the entire property and suspend its vesting in the lawful heirs till the Executor chooses to act."

Moreover it is obvious that the power to appoint a legal representative is conferred on the court by Order XXII, Rules 1, 3 and 4 of the Code of Civil Procedure. These Rules empower the court to appoint legal representative of the deceased plaintiff if the right to sue survives. "Legal representative" is defined by Section 2(11) of the Code of Civil Procedure, to read as follows :

"Legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;"

The term is obviously not restricted to a legal representative in the form of an executor. It includes others including those who intermeddle with the estate of the deceased. The court may be called upon to appoint a legal representative of a party in a suit which relates to property other than property bequeathed under a Will such as in the present case or the executor who objects to the appointment of the legal representative may have an interest intractably adverse to the estate of the deceased, such as in the present case. Clearly it cannot be said in such a case that the court has no power to appoint a legal heir as a legal representative even though there is an executor of a Will. In the present case the suit is filed by the deceased plaintiff interalia against the executor herself for diverting property to herself by a Will which is allegedly not valid.

It would indeed a travesty of justice to prevent other heirs from being appointed as legal representative of the deceased to continue the suit and accept the executor's objection that it is not permissible to do so. To accept such an objection would result in a party being permitted to allow the suit against him to be abated and thereby immunise himself from a challenge.

18. In any case there is no merit in the submission that an executor alone can continue the suit and other legal representatives are not entitled to continue the proceedings in view of the observations of the Supreme Court in M. Veerappa Vs. Evelyn Sequeira (Supra) as follows :

"Though Section 306 speaks only for executors and administrators and Order XXII of Rule 3 Civil Procedure Code sets out the rights of legal representatives to continue the proceedings instituted earlier by a deceased plaintiff if the right to sue survives, the courts have taken the view that the legal representatives stand on par with executors and administrators regarding their right to seek impleadment in order to continue the suit. We may in this connection only quote the following passage occurring in Melepurath Sankunni case : P.121, para 8).

Section 306 further speaks only of executors and administrators but on principle the same position must necessarily prevail in the case of other legal representatives, for such legal representatives cannot in law be in better or worse position than executors and administrators and what applies to executors and administrators will apply to other legal representatives also."

19. Thus there is no merit in any of the objections raised on behalf of the Defendant No.1. The Chamber Summons are therefore allowed. Amendment to be carried out within a period of six weeks from today.

20. At this stage, learned counsel for the Defendant No.1 prays for stay of this Order, application for stay is rejected.

Chamber Summons allowed.