IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA;
MANIPUR; MIZORAM; TRIPURA & ARUNACHAL PRADESH)
IMPHAL BENCH
LETTERS PATENT APPEAL NO. 2 OF 1997.
Shri Purnanand Sharma,
S/O (L) Shri Gopal Ram
Sharma of Thakurbari, Paona Bazar, Imphal,
now dead, by his Legal representatives -
i) Smt. Kamla Devi (Sharma) wife of late Purnanand Sharma
ii) Smt.Kaushalya Sharma, wife of late Mahendra Kumar Sharma,
iii) Shri Nishanka Sharma, minor, son of late Mahendrakumar Sharma, by mother at (ii) above,
iv) Km. Teressa Sharma, minor daughter of late Mahendrakumar Sharma, by mother at (ii) above,
v) Shri Vinodkumar Sharma, son of late Purnanand Sharma,
vi) Shri Deepak Sharma, son of late Purnanand Sharma,
vii) Smt. Bharti Joshi, daughter of late Purnanand Sharma,
viii) Smt. Aruna Sharma, daughter of late Purnanand,
---all residents of Thakurbari, Paona Bazar, PO-PS Imphal,
Dist. - Imphal West, Manipur.
… Plaintiff/Appellant.
-Vs-
1. Shri Mahabir Singh, died on 9.5.1989,
(no legal representative is brought on record),
2. Shri Hanumandas Sharma, son of late ---
C/o Bhairodan Nathmall, Paona Bazar, PS-PO Imphal,
3. Murlidhar Agarwala, -- died on 12.9.1982,
(no legal representatives are made party),
4. Shri Ramrata Sharma, - died on 17.12.1982,
(no legal representative is brought on record),
5. Shri Ramohajan Dadoo, - died on 31.8.1987,
(no legal representatives are made party),
6. Shri Gulab Singh Rajput, son of – resident of Paona Bazar, PS- PO Imphal,
7. Shri Bhagwandass Mahawar, - died on 23.6.1981,
(legal representatives brought on record), viz.,
(a) Shri Radheshyam Mahawar, son of late Bhagwandass Mahawar, resident of Thangal Bazar, PS-PO Imphal,
(b) Smt. Gaindi Devi, wife of late Shivdayal Mahawar, resident of Thangal Bazar, PS-PO Imphal,
8. Shri Narayan Prasad Jalan, son of late Bilas Rai Jalan,
resident of Thangal Bazar, PS-PO Imphal,
9. Shri Mohanlall Agarwala, son of late Harakchand Agarwala, resident of Paona Bazar, PS-PO Imphal,
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10. Shri Kanhayalall Sharma, son of – resident of Paona Bazar, PS-PO Imphal,
11. Shri Murarilall Agarwalla, died on 9.4.1981,
(no legal representatives are made party),
12. Shri Banshidhar Agarwala, now dead, through his legal representatives -
i) Smt. Bhauwri Devi, wife of late Banshidhar Agarwala,
died on 1.1.1993,
ii) Shri Manoharlal Agarwala, son of late Banshidhar Agarwala, of Thangal Bazar, PS-PO Imphal,
13. Shri Tanulall, now dead through his legal representatives –
i) Smt. Nungshi Devi, wife late Tanulall Malihan,
ii) Smt. Leihao Devi, wife of late Tanulall Malihan,
iii) Shri Bijaikumar Malihan, s/o late Tanulall Malihan,
iv) Km.Indira Devi, daughter of late Tanulall Malihan,
v) Shri Jitendra Kumar Malihan, son of late Tanulall Malihan,
- residents of Masjid Road, Paona Bazar, Imphal,
14. Shri Baluram Agarwala, now dead through his L. Rs.-
i) Shri Badri Prasad Agarwala, son of late Baluram Agarwala, of Thangal Bazarm PS-PO Imphal,
ii) Shri Kailash Prasad Agarwala, son of late Baluram Prasad, of Thangal Bazar, PS-PO Imphal.
15. Shri Surajmani Mahawar, now dead, through his L.Rs. –
i) Shri Kailashchand Mahawar,
ii) Shri Prakashchand Mahawar,
iii) Shri Mahendrakumar Mahawar,
iv) Shri Rameshkumar Mahawar,
v) Shri Ashok Kumar Mahawar,
vi) Kumari Uma Devi,
viii) Smt. Parbati Devi,
ix) Shri Ratanlal Mahawar,
- all of Thangal Bazar, PS-PO Imphal,
x) Km. Bimola Devi, daughter of Surajmal Mahawar,
resident of Alwar Limes Industries, Gulab Kunj, Alwar, Rajasthan.
….Defendants/Respondents.
BEFORE
THE HON’BLE MR.JUSTICE H.N. SARMA
THE HON’BLE MR.JUSTICE M.BK SINGH
For the Plaintiff/Appellants : Mr. A.Nilmani Singh, Sr.
Advocate- assisted by Mr.
A. Bimol Singh, Advocate.
For the Defendants/Respondents : Mr. L.Sashibushan, Advocate
Date of Hearing : 18.04.2006.
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Date of Judgment/Order :: 18.04.2006.
JUDGMENT & ORDER
(Oral)
HN Sarma, J.
This Letter Patent Appeal arises out of an order passed by the learned Single Judge on 10.09.1997 in F.A.No.2 of 1975, which is the oldest pending Civil Appeal in this Court. Incidentally, this appeal arises out of the suit filed on 16.4.1960, i.e., more than 46 years ago.
2. By virtue of the order impugned in this appeal, the learned Single Judge, inter alia, held that due to expiry of the appellant/defendant Nos-3, 5 and 11, the first appeal will not abet as a whole in the absence of substitution of the legal heirs of those appellants and rejected the preliminary objection raised by the present appellant/plaintiff.
3. We have heard Mr. A. Nilmani Singh ,learned Sr. Advocate assisted by Mr. A.Bimol, learned counsel appearing on behalf of the plaintiff/appellant as well as Mr. L. Sashibushan Singh, learned counsel appearing on behalf of the defendants/respondents ( appellants in the First Appeal).
4. The short question arises for consideration in this appeal is as to whether on the failure to bring on record legal heirs of respondent-appellant Nos-3, 5 and 11, the connected appeal , i.e., F.A. No.2 of 1975 will abet as a whole and whether the other surviving appellants have right to continue with the appeal.
5. For the purpose of disposal of this appeal relevant facts, in short, may be put as follows: The Original Title Suit No.58/60 (21/72, 22/73, 1/74) was filed by one Purnanand Sharma as plaintiff impleading 15 defendants alleging, inter alia, that the plaintiff is the Shebait of the Hindu Deity of Radha Krishna worshiped at its Temple at Thakurbari, Paona Bazar, Imphal and the defendants are interested in denying the said right of the plaintiff and has formed an unauthorized and unlawful Society in the year,1958 under the name and style of ‘Shri Shri Radha Krishna Mandir
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Karya Karini Prabandha Committee’ behind the back of the plaintiff. It is further alleged that the defendants indulged in activities prejudicial to the interest of the plaintiff in the management of the said Radha Krishna Temple and hence the suit was filed, inter alia, praying for decree for declaration that the plaintiff is the Shebait of the said Temple, and for perpetual injunction restraining the defendants from interfering with the duties of the plaintiff as the Shebait of the temple and in administration of its property. Another suit, being Title Suit No.60 of 1965 (5/65/54/95/2/74) was filed by the Deity of Radha-Krishna having represented by the Secretary of the ‘Shri Shri Radha Krishna Mandir Karya Karini Prabandha Committee, a society registered under the Societies Registration Act wherein defendant Nos-1 to 15 of T.S. 58/60 are members and impleaded Purnanand Sharma as the sole defendant. In this suit, the plaintiff prays for a decree of possession of the land described in the Schedule –B of the plaint and also for permanent injunction. Both the suits were heard analogously and the learned Addl.District Judge, Manipur, Imphal vide judgment and decree dated 30.11.74, decreed the suit filed by Purnanand Sharma, and partly the suit filed by the Society. The learned Addl. District Judge in disposing both the suits, held inter alia, as follows:
“In the result, it is, therefore, ordered that the Original Suit No.60/65/5/65/54/72/23/73/2/1974 be decreed that the defendant is to deliver possession of the plaint schedule ‘B’ land by demolishing all the structures standing thereon, to the plaintiff No.1. It is, further, ordered that, the plaintiff’s suit regarding permanent injunction be dismissed. It is also ordered that the Original Suit No.58/60/2/72/22/73/1/1974 be decreed that the plaintiff is one of the co-shebaits of the Deity Radha Krishna. It is also ordered that the plaintiff’s suit for issuing of perpetual injunction be dismissed. In the circumstances of the cases, parties are directed to bear their respective costs. Let a copy of this order be attached to the case records of O.S.No.1 of 1974.”
6. Aggrieved by the aforesaid judgment and decree two appeals, namely F.A. No.2/75 and F.A. No.3/75 were filed before this Court. F.A. No.2/75 was filed by the individual members of the Radha Krishna Mandir Karya Karini Prabandha Committee whereas F.A. No.3/75 was filed by the Deity of Radha-Krishna being represented by its Secretary. In both the appeals, Shri Purnananda Sharma, plaintiff in T.S. 58/60 has been impleaded as respondent, who also filed a cross-objection in the appeal.
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7. During the pendency of F.A.No.2/75, the appellant Nos-3,5 and 11 having been expired, their applications were filed to substitute their legal heirs which was not allowed by this Court on account of unexplained inordinate delay vide order dated 6.4.74. The consequence of such rejection of the prayer to substitute the legal heirs of appellant Nos-3, 5 and 11 was kept reserved for consideration at the time of hearing of the appeal. At the time of hearing of the appeal, the respondents raised preliminary objection regarding maintainability of the appeal in view of non impleadment of the legal heirs of the deceased appellant Nos-3,5 and 11. The learned Single Judge vide judgment and order dated 10.9.97 rejected the said objection holding, inter alia, that by the death of those three appellants, the appeal will not abet and surviving members of the Committee have the right to proceed with the appeal.
8. Challenging the said decision passed by the learned Single Judge, it is submitted by Mr. A. Nilmani Singh, learned Sr. counsel that the defendant-appellants having claimed the right over the property of the Deity , it cannot be said that in the absence of bringing the legal heirs of those deceased appellants on record, the appeal would survive inasmuch as the right of these three appellants are not separable but of joint nature and accordingly in the absence of their impleadment of their legal heirs, the appeal will abet as a whole. It is further submitted that right of the individual appellant will continue even after their expiry till the new members are inducted in the Committee. In support of his argument, the learned Sr. Counsel refers to the following decisions (1) AIR 1980 SC 707, (2) (2004)7 SCC 354, (3) (1996)1 SCC 291, (4) (1999)2 SCC 448, (5) (1979) 3 SCC 409 and (6) (1996) 2 SCC 205.
9. Mr. L. Sashibushan, learned counsel appearing on behalf of the respondent (appellant in F.A.No.2/65) has submitted that the 15 members who have been impleaded as defendants in the suit were individual members of an elected Committee out of which three members, i.e., defendant/appellant Nos-3, 5 and 11 expired during the Pendency of the appeal. Accordingly, they being only the elected members of the
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Committee, their rights are personal and it is not transferable or heritable and in the absence of bringing their legal heirs on record, right to continue with the appeal by the other appellants will not be extinguished. Both the learned counsel led us to the pleadings of the parties in order to substantiate their respective contentions.
10. We have heard the learned counsel for the parties and also considered the rival submissions so made by them.
11. In the suit filed by the present appellant, i.e., T.S. 58 of 1960, at paragraph 11, it is pleaded by the plaintiff which is quoted as follows:
“11. The defendants are interested in denying that the plaintiff is the shebait of the images of Shri Radha Krishna and that he is entitled to the management of the properties of the images. In 1958 they formed an unauthorized, unregistered and unlawful association under the name of ‘Shri Shri Radha Krishna Mandir Karya Karini Prabandha Committee’ behind the back of the plaintiff.”
12. The defendants/respondents submitted their common written statement in the suit on 19.7.60. At paragraph 26(B) (D) (I) & (J) of their written statements, the defendants pleaded as follows:
“26(B) A committee called Shri Radha Krishna Mandir Karya Karini Prabandhak Committee has along been functioning for managing the affairs of the Temple. The land under patta no.80/138 I.W.T/I.M.A Plot No.203/91 was acquired by the said Hindu residents for the purpose of the temple and dedicated to the Deity of the installed therein. By virtue of such litigation Deity became the owner of the patta lands and of all structures standing thereon. The Govt. land registered shows the Deity as such owner. The buildings and structures built through public munificences yield a decent income which is spent for maintenance of the institution.
(D) The committee lets out the shops standing on the land and collects the rent which forms the main item in the funds of the temple.
(I) The composition of the committee has changed from time to time by reason of periodic elections. The last such election was held in 1958. Though not a registered Society the committee has all along been performing the duties of the de facto shebayet of the temple and has been recognized as such all along by the Govt., local authorities as well as by the public at large.
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(J) The committee is actuated by the sole desire to promote the best interest of Hindu religion and culture in the locality. There is no question of any member of the committee having any personal interest in the property in suit.”
13. The law relating to requirement and procedure for bringing on record the legal heirs of deceased appellant or respondent is regulated and guided by Or.22 of the CPC. Or.22 r.1 provides that the death of plaintiff or defendant shall not cause the suit to abet if the right to sue survives. Or. 22 r 3 provides, inter alia, that where one or two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made on that behalf, shall cause the legal representatives of the deceased plaintiff to be made a party and shall proceed with the suit. It is an admitted position that the legal heirs of the appellant Nos-3, 5 & 11 are not brought on record.
14. The allegations made against the deceased appellants/defendants in the plaint itself, goes to show that they along with other defendants/appellants are denying the rights of the plaintiffs as Shebait and have unauthorisedly formed an unlawful association in the name of Shri Shri Radha Krishna Mandir Karya Karini Prabandha Committee. As pointed out hereinabove in the written statement, the defendants have pleaded, inter alia, that they did not have personal interest in the suit properties and the Committee is constituted by them for managing the affairs of the temple in the year, 1958. It is submitted that later on the Committee was registered under the Societies Registration Act. In the case reported in (1996) 2 SCC 205(PURAN SINGH AND ORS. VS STATE OF PUNJAB AND ORS.) as referred by Mr. A. Nilmani Singh, the Apex Court at paragraph 4 answering such question, held as follows:
“4. A personal action dies with the death of the person on the maxim actio personalis moritur cum persona. But this operates only in a limited class of action ex delicto, such as action for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the granting of the relief would be nugatory. (Girja Nandini Devi v. Bijendra Narain Choudhury). But there are other cases where the right to sue survives in spite of the death of the person against whom the proceeding had been initiated and such right continues to exist against the legal representative of the
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deceased who was a party to the proceedings. Order 22 of the Code deals with this aspect of the matter. Rule 1 of Order 22 says that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. That is why whenever a party to a suit dies, the first question which is to be decided is as to whether the right to sue scurvies or not. If the right is held to be a personal right which is extinguished with the death of the person concerned and does not devolve on the legal representatives or successors, then it is an end of the suit. Such suit, therefore, cannot be continued. But, if the right to sue survives against the legal representatives of the original defendants, then procedure have been prescribed in Order 22 to bring the legal representative on record within the time prescribed. In view of Rule 4 of Order 22 where one of two or more defendants dies and right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant dies and right to sue survives, the Court, on an application being made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. If within the time prescribed by Art.120 of the Limitation Act, 1963 no application is made under sub rule (i) of Rule 4, the suit shall abate as against the deceased defendant. This Rule is based not only on the sound principle that a suit cannot proceed against a dead person, but also on the principle of natural justice that if the original defendant is dead, then no decree can be passed against him so as to bind his legal representative without affording an opportunity to them to contest the claim of the plaintiff. Rule 9 of Order 22 of the Code prescribes procedure for setting aside abatement.”
In the instant case the are 15 appellants and the right of appellant Nos-3, 5 & 11, will extinguish after their death, whereas the right of the other appellants will remain unaffected thereby.
15. Regarding the construction of the provision of abetment, the Apex Court in the case of MITHAILAL DALSANGAR SINGH & ORS Vs ANNABAI DEVRAM KINI & ORS. reported in (2003) 10 SCC 691, held as follows:
“8. Inasmuch as the abatement results in denial of hearing on the merit of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside the abatement. So also a prayer for setting aside abatement as regards one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of
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law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representative proposing to be brought on record or any other applicant proposing to bring the legal representative of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representative on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical and pedantic an approach in such cases is not called for.”
16. From the pleadings of the parties, there is no doubt that the defendants are members of the Shri Radha Krishna Mandir Karya Karini Prabandha Committee, who were elected as such members in the year, 1958. It is submitted that these members are liable to be replaced from time to time whenever new members are inducted by way of election of the Society. Section 15 of the Societies Registration Act defines ‘Member’ as a person who having been admitted therein according to rules and regulations thereof, shall have paid a subscription or shall have signed role or list of members thereon and shall not have resigned in accordance with such rules and regulations. The Act is also silent about the right of inheriting by the legal heirs of members of the Society. Again Section 7 of the Societies Registration Act, provides that a suit, on the death of such person, would not abet. Section 7 is quoted herein below:
“7. Suits not to abate.- No suit or proceeding in any Civil Court shall abate or discontinue by reason of the person, by or against whom such suit or proceeding shall have been brought or continued, denying or ceasing to fill the character in the name whereof he shall have sued or been sued, but the same suit or proceeding shall be continued in the name of or against the successor of such person.”
17. From the averments made in the pleadings of the parties and the nature of dispute that has been raised for adjudication before this Court, we are constrained to hold that the rights of the defendants are personal in nature without having any heritable or transferable rights. On the other hand, surviving defendants have also similar rights to continue with the suit.
18. As the rights of the deceased defendants/appellant Nos-3, 5 & 11 were of personal right, due to non impleadment of the legal heirs of such defendants/appellants the appeal will not abet as a whole and the
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surviving appellant shall have the right to continue with the appeal, as the right to sue survives upon the surviving appellants. There is no doubt about the principles of law enunciated in the case laws by Mr. A. Nilmani Singh, the learned Sr. counsel, but those are not of any help to the appellants of the present case.
19. In view of the aforesaid discussion, we do not find any merit in this appeal and accordingly it stands dismissed.
Sd/- M.B.K.Singh, Sd/-H.N.Sarma,
JUDGE JUDGE
