It is, in this background that the Hon'ble Apex Court has considered the question and held that; where a plaintiff or appellant after diligent and bona fide enquiry as certains who the legal representatives of deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of suit or appeal and impleaded legal representatives sufficiently represent the estate of the deceased and that a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record. It is noticed that where a person is brought on record to be a legal representative, it would be consonant with justice and principle that in the absence of fraud or collusion, the bringing on record of such a legal representative is sufficient to prevent the suit or appeal from abating. At the end of paragraph, therefore, Hon'ble Apex Court opined that appeal did not abate. In paragraph 10 Hon'ble Apex Court has considered its two earlier judgments but then the decree there was joint and indivisible one and, therefore, the possibility of coming into existence of two inconsistent decree has been looked into in paragraph 10 as a relevant circumstance.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 580 OF 2005
Smt. Anusaya wd/o Purushottam Patil
: Versus :
1. Smt. Shobha w/o Govindrao Tembhare,
CORAM: B. P. Dharmadhikari, J.
DATED: 27TH FEBRUARY, 2008.
Citation; 2008(3)ALLMR739, 2008(3)MhLj423
The original plaintiff has by this second appeal challenged
reversing judgment and decree dated 29/6/2005 delivered by 10th
Ad hoc Additional District Judge, Nagpur in regular civil appeal No.
463 of 2000. The suit was filed by present appellant vide special
civil suit No. 554 of 1986 against present respondent No. 1 Smt.
Shobha for grant of specific performance and in the alternative for
recovery of Rs. 50,100/. The agreement dated 30/9/1985 was
with one Subhadrabai w/o Rambhau Kolhe and suit as filed on
04/12/1986 was also against Subhadrabai. Subhadrabai expired
during pendency of suit on 12/6/1990. Thereafter present
respondent Shobha was brought on record as her legal
representative and daughter. The trial Court decreed the suit on
30/7/1992.
The reason given by appellate Court for reversing the
2.
judgment of trial Court is that present appellant/plaintiff did not
bring on record husband of Subhadrabai by name Rambhau Kolhe
in civil suit and as such specific performance could not be granted.
The appellate Court has, therefore, ordered Shobhapresent
respondent to refund proportionate amount of earnest to the
appellant. This Court has admitted the second appeal on
06/4/2007 by framing the following substantial question of law:
“Whether the appellate Court was justified in reversing
the decree for specific performance of contract solely
on the ground that one of the legal heirs of deceased
Subhadrabai was not brought on record and the suit
against the respondent also abated, without
considering the conduct of the respondent and
Rambhau Kolhe, specially when an application was
filed by the plaintiff for bringing both the legal heirs of
deceased Subhadrabai on record?
While admitting the matter, this Court found that Rambhau
Kolhe was changing his stand and, therefore, notice was also issued
to him to show cause as to why he should not be joined as party
respondent in the present second appeal. Accordingly, Rambhau
appeared after he was served through paper publication and this
Court on 08/02/2008 after hearing Counsel for the appellant,
Counsel for respondent No. 1 and also Counsel for Rambhau,
directed Rambhau to be brought on record as respondent No. 2 for
the purposes of deciding question as formulated without prejudice
to the rights of present respondent Shobha or said Rambhau.
Accordingly, Rambhau has been added as respondent No. 2.
3.
In this background I have heard Advocate Shri S. P.
Hedaoo with Advocate Shri R.N. Patil for appellant/plaintiff,
Advocate Shri S.A Deo for respondent No. 1 Shobha and Advocate
Shri A. Y. Pathak for respondent No. 2 Rambhau.
Advocate Hedaoo has contended that trial Court has found
4.
that present appellant has proved agreement for sale dated
30/9/1985, payment of earnest money of Rs. 22,000/ to
Subhadrabai, that total consideration was fixed at Rs. 77,000/,
that she was ready and willing to perform her part of contact by
paying remaining consideration. In view of these findings, trial
Court held that plaintiff was not entitled to claim refund of Rs.
50,100/ with interest by way of damages and she was entitled to
specific performance. It found that defendant (present respondent)
could not prove that transaction was a loan transaction and
agreement was a security for loan amount. It is to be noticed that
the total amount as paid by present appellant to Subhadrabai as
recorded by trial Court in paragraph 15 of its judgment is Rs.
43,000/. He contends that all these findings are maintained even
by lower appellate Court. However, lower appellate Court has
found that after Subhadrabai expired, her daughter only was
brought on record and her husband who was also legal heir was not
brought on record and consequently lower appellate Court held that
suit abated against Rambhau only. He contends that in view of this,
the lower appellate Court found that it was not in position to
evaluate the market price and half share of Shobha in the suit
property and, therefore, it ordered refund of 50% only of total
amount paid by appellantplaintiff to Subhadrabai. Advocate
Hedaoo argues that this exercise undertaken by lower appellate
Court is totally arbitrary and unsustainable. He invites attention to
application at Exh. 90 on record of trial Court to point out that after
death of Subhadrabai on 12/6/1990, on 07/8/1990 said
application was moved by present appellant seeking permission to
bring her legal heirs on record. It was expressly mentioned therein
that present respondent Shobha was daughter of Subhadrabai and
Rambhau Marotrao Kolhe was her husband and as such, prayer was
made to permit both of them to be brought on record in place of
Subhadrabai as defendants. On the said application, respondent
No. 2 Rambhau recorded his say on 14/3/1991 expressing that he
has no concern with the case. On 22/3/1991 trial Court permitted
Shobha to be brought on record holding Rambhau not to be legal
heir of Subhadrabai. Advocate Hedaoo contends that in view of this
express order, appellantplaintiff had no option but to bring Shobha
alone on record. He further states that this order was not
challenged either by Shobha or by Rambhau and it attained finality.
He also invites attention to application at Exh. 40 again moved by
Rambhau and pointed out that such application was ordered to be
filed on 21/6/1991. He contends that even then order was not
challenged by either of the respondents. The appeal was then filed
by respondent No. 1 Shobha before the District Court and in the
said appeal Shobha moved application under Order VI rule 17
C.P.C. for amendment of memo of appeal and another application
under the same provisions for amendment of written statement.
The plea of nonjoinder of Rambhau Kolhe as partydefendant
before the trial Court and its effect was sought to be incorporated
and that amendment was allowed on 13/4/2004. Thereafter,
present appellant moved another application vide Exh. 15 for
joining said Rambhau as either appellant No. 2 or as respondent
and to remit necessary issue to the trial Court with direction to trial
Court to record his evidence and remit its finding on the said issue
back to the appellate Court. The application came to be rejected on
30/4/2005. Advocate Hedaoo therefore contends that never effort
was made by Rambhau for not joining him as partydefendant and
he did not file appeal also. In this background he places reliance
upon judgment of Hon'ble Apex Court reported at AIR 1965 SC
1049 (Daya Ram & others Vs. Shyam Sundari & others) and AIR
1966 SC 792 (N.K. Mohd. Sulaiman Sahib Vs. N. C. Mohd. Ismail
Saheb & others) to contend that suit cannot abate in such
circumstances. Recent judgment of this Court reported at 2007
(1) Mh. L. J. 467 (Ramu Oabdu Gavade Vs. Ramchandra Vishnu
Kulkarni & others) is also relied upon for this purpose. He also
points out that reliance by lower appellate Court upon judgment of
this Court reported at 2003 (2) Mh. L.J. 236 (Parvez Rustom
Nekoo Vs. Rustom Ardeshir Nekoo) in favour of respondent No. 1 is
misconceived.
5.
Advocate Deo appearing for respondent No. 1 Shobha and
appellant before lower appellate Court has contended that duty to
bring all known legal heirs on record is cast by law upon appellant
plaintiff and facts demonstrate that the plaintiff did not discharge it.
He contends that order below Exh. 19 ought to have been
challenged by present appellant before the appropriate forum as it
was a wrong order. He further states that after that order also
Rambhau made serious efforts to come on record before the trial
Court, but trial Court ignored those applications. According to him
in such circumstances, it was not necessary for either Rambhau or
respondent No. 1 Shobha to challenge these orders. He contends
that even before lower appellate Court though present respondent
N. 1 moved appropriate application and sought amendment of her
memo of appeal to raise additional grounds and also amendment of
her written statement to raise additional defences, no timely steps
were taken by appellantplaintiff to get Rambhau impleaded. He
states that applicationExh. 15 before learned lower appellate court
was moved after the appeal was finally heard and closed for
judgment. He points out that such application was, therefore,
rejected not on merits of application but in view of the fact that
once the matter was closed for judgment, the Court cannot take
cognizance of such application. He strongly relies upon judgment
reported in the case of Parvez Rustom Nekoo Vs. Rustom Ardeshir
Nekoo (supra) to substantiate his contention and argues that as the
contract was for sale of entire property, it could not have been sub
divided and as such the learned lower appellate Court has correctly
refused to exercise its discretion in favour of appellantplaintiff. He
further argues that respondent No. 1 is ready and willing to return
Court.
Advocate Shri Pathak appearing for respondent No.2
6.
the amount to appellantplaintiff as directed by the lower appellate
adopts arguments of Advocate Shri Deo. In addition, he states that
the question of any prejudice to respondent No. 2 Rambhau cannot
be gone into in the present matter because necessary facts have not
been placed on record by Rambhau as he never got opportunity to
file any written statement before trial Court. He argues that burden
to bring Rambhau on record was on appellantplaintiff and hence,
at the stage of second appeal, Rambhau cannot be heard on the
question of prejudice or otherwise. He further argues that if this
Court finds that Rambhau can be added as party even at this stage,
the matter needs to be remanded back to trial Court for fresh trial
in accordance with law giving opportunity to Rambhau to lead
evidence. He states that finding of lower appellate Court that suit
has abated against Rambhau is legally sound and no substantial
question of law for its reconsideration arises in this second appeal.
He also relies to the judgment on which Advocate Deo has based
reliance and in addition he also points out that in the case of Daya
Ram & others Vs. Shyam Sundari & others (supra), in paragraph 12
the observations of Hon'ble Apex Court also suggests that after
addition of Rambhau to completely constitute the appeal, the
appeal needs to be remanded back to trial Court. He, therefore,
states that no interference is warranted in this second appeal and
the appeal needs to be dismissed.
7.
The facts, therefore, which are not in dispute reveal the
efforts made by appellantplaintiff to bring Rambhau on record. The
suit has been filed against deceased Subhadrabai on 04/10/1986
and Subhadrabai herself had filed her written statement on
20/01/1987. It is not in dispute that she expired on 12/6/1990
and the application to bring her legal heirs was moved on
07/8/1990 by the present appellant. In paragraph 1 itself names of
Shobha and Rambhau and their relationship with deceased is
mentioned and prayer has been made to permit them to be brought
on record in place of deceased Subhadrabai. Rambhau has
personally received copy of this application (Exh. 19) on
30/01/1991. On the reverse of Exh.19 there are two independent
replies recorded on behalf of Shobha and Rambhau. Counsel for
Shobha has put a remark that application (Exh.19) was without any
substance and husband cannot be brought on record as legal
representative, and therefore, prayed for rejection of such
application. Counsel for Rambhau has stated that 'application is
opposed as this applicant Rambhau has no concern with the case'.
This say is given on 14/3/1991. Thereafter trial Court has passed
order as under:
“Shobhabai be brought on record as legal heir. But,
Rambhau cannot be legal heir of Subhadrabai. The
amendment be made accordingly”.
In view of this order, Shobha was added as defendant on
22/3/1991 itself and she has filed her written statement on
10/6/1991. Even before collecting copy of Exh. 19, Rambhau has
filed application on 11/02/1990 vide Exh. 27 for adjournment in
which he has mentioned that Anusayabai (plaintiff) has filed suit
No. 554 of 1986 against him. He has moved another application on
18/01/1991 vide Exh. 31 for adjournment and thereafter vide Exh.
32 for copy of Exh. 19. On 16/4/1991 he has filed application Exh.
ig
38 in Hindi objecting to civil suit No. 554 of 1986 and for its
dismissal. He has mentioned that after death of Subhadrabai, he
has become owner and he has not been made party. On 21/6/1991
again he has moved more or less similar application vide Exh. 40
and its copy was received by present respondent No. 1 Shobha. On
this application the learned trial Court has passed order on the very
same day that it was “filed”.
8.
In regular civil appeal No. 463 of 2000 filed by present
respondent No. 1 Shobha on 30/8/2005 Rambhau has moved
application seeking permission to make payment of the amount
within 15 days as per the judgment and order dated 29/6/2005.
The learned Presiding Officer has on 31/8/2005 passed orders on
the said application allowing it and asking Nazir to accept the
payment. The amount of Rs. 21,500/ which respondent No.1
Shobha was directed to refund to present appellant formed subject
matter of this application filed by Rambhau.
9.
Perusal of judgment of learned lower appellate Court, in
this background, shows that it formulated question about
abatement of such as point No. 5 and has considered it from
paragraph No. 10 of its judgment onwards up to paragraph No. 17.
In the process of consideration this aspect, it has relied upon
judgment in the case of Parvez Rustom Nekoo Vs. Rustom Ardeshir
Nekoo (supra) to note that as present applicantplaintiff had
knowledge of existence of Rambhau and his relationship with
deceased Subhadrabai, it was his duty to bring Rambhau on record.
It held that ordinarily when some of the legal heirs are brought on
record, suit does not abate but when the litigant is aware of
omission on his part to bring on record other legal heirs, law
enjoins responsibility upon him to bring such legal heirs on record.
It held that in the fact before it therefore, trial Court was wrong in
not permitting Rambhau to be brought on record. It further held
that for such fault of trial Court, the litigant must not suffer and suit
at the most abate only against Rambhau. At the end of paragraph
25 while considering other points, it held that suit abated only
against Rambhau did not abate against appellant Shobha. It is, in
view of this finding that it then proceeded to consider point Nos. 6
and 7 framed by it together. By said questions it considered
whether plaintiff was entitled to specific performance or whether to
alternative relief of refund of Rs. 50,100/ with interest.
From paragraph 25 onwards it has applied its mind to this aspect
and it held that Shobha, appellant before it, could not have
transferred entire plot to plaintiff. It further found that Shobha
could have executed direct sale deed in respect of her own share
but then proceeded to observe that plaintiff had agreed to purchase
entire suit property for Rs. 77,000/ and had paid Rs. 43,000/.
After this, it has observed “I do not know what could be the value of
the half share of the appellant in suit property”. Then it has found
that the death of Subhadrabai was an unforeseen circumstances and
grant of specific performance of the contract would also involve
some hardship. In paragraph 27 it found that total amount paid by
plaintiff to Subhadra was Rs. 43,000/ and, therefore,
Shobha was liable to return half of it i.e. Rs. 21,500/ to other
respondentplaintiff before it. Accordingly it partly allowed the
appeal by directing Shobha to refund amount of Rs. 21,500/ to
plaintiff with 10% interest per annum from the date of suit till the
10.
date of decree and thereafter 6% till realisation.
The perusal of judgment of this Court in case of Parvez
Rustom Nekoo Vs. Rustom Ardeshir Nekoo (supra) reveals that there
the issue was being considered in review. The suit for ejectment
and possession was filed and were decreed against said judgment
and decree, two appeals were filed and in those appeals Mr. Parvez
(appellant before High Court) sought himself to be impleaed as
appellant as third party. District Court rejected that application.
He approached High Court in civil revision and High Court granted
him that permission. Thereafter the appeals were dismissed on
merit by Additional District Judge, Pune which directed the
appellant i.e. original defendant No. 1 to vacate the suit premises.
Mr. Parvez then filed writ petition under Article 227 vide writ
petition No. 2581 of 1991 before the High Court. During pendency
of that writ petition, original defendant No. 2 expired and hence
civil application No. 4434 of 1988 to bring on record his two legal
representatives was moved. Those two legal heirs were shows as
1A and 1B. This application was dismissed for non removal of
certain office objection against legal heir No. 1B on 8/3/1999.
Thereafter civil application No. 4434 of 1999 came for hearing and
the High Court found that with dismissal of civil application
against heir 1B, impugned decree for eviction had become final
and as such main writ petition itself did not survive as it could
result into two inconsistent decrees in one suit. The civil
application was therefore rejected on 21/12/2000 and writ petition
automatically stood dismissed as abated. Thereafter, Mr. Parvez
moved civil application No. 171 of 2002 with a prayer to review
order on civil application 4434 of 1999 and for restoration of writ
petition No. 2581 of 2002 for its hearing on merits. It is in this
background that this Court considered arguments and various case
laws cited and noticed that interest of Mr. Parvez were adverse to
the interest of deceased respondent. After noting this in paragraph
21, the contention that as one of the legal heirs was already on
record, though in some other capacity, writ petition did not abate
was taken up for consideration. Judgment of Hon'ble Apex Court in
case of Daya Ram & others Vs. Shyam Sundari & others (supra) was
thereafter noticed and it has been observed that once some of the
legal heirs of deceased are brought on record, the proceedings do
not abate. But, when petitioner is put on notice about his omission
to implead other legal heirs, it becomes obligatory for him to bring
on record such left out legal heir and it is not open for such
petitioner to contend that as one of the legal heirs is already on
record, proceedings does not abate. It is observed that in case
before High Court, Parvez was aware of other legal representatives
and had rightly moved application to being them on record and
having suffered adverse order in the process, he could not escape
the legal consequences flowing therefrom.
11.
This judgment of Hon'ble High Court i.e. Daya Ram &
others Vs. Shyam Sundari & others (supra) starts from consideration
of civil Suit No. 9 of 1939 filed by Shyam Sundari for determining
the third share of lands and for allotting the same to her. Prior
thereto, brothers of her husband had filed a suit vide No. 20 of
1922 and this litigation ultimately resulted in a decree in favour of
Shyam Sundari for possession of third share of plots specified.
When she sought execution of that decree, there was some problem
and ultimately it was held that she was not entitled to any specific
portion of land and she was only given symbolic possession in Suit
No. 20 of 1922. It was also observed that she ought to have filed
separate suit for partition. Accordingly, suit No. 9 of 1939 came to
be filed. In that suit some orders were passed and ultimately her
adversary Daya Ram approached the Hon'ble Apex Court. The High
Court had granted certificate of fitness and appeal was declared
admitted by the High Court on 27/11/1957. Sham Sundari died in
April 1959 and thereafter Daya Ram took steps to implead her legal
representatives. Accordingly, they were substituted and thereafter
they raised plea that appeal had abated because one son by name
Kunwar Bahadur and a daughter by name Laxmibai of Sham
Sundari were not brought on record. It is, in this background that
the Hon'ble Apex Court has considered the question and held that;
where a plaintiff or appellant after diligent and bona fide enquiry
ascertains who the legal representatives of deceased defendant or
respondent are and brings them on record within the time limited
by law, there is no abatement of suit or appeal and impleaded legal
representatives sufficiently represent the estate of the deceased and
that a decision obtained with them on record will bind not merely
those impleaded but the entire estate including those not brought
on record. It is noticed that where a person is brought on record to
be a legal representative, it would be consonant with justice and
principle that in the absence of fraud or collusion, the bringing on
record of such a legal representative is sufficient to prevent the suit
or appeal from abating. At the end of paragraph, therefore, Hon'ble
Apex Court opined that appeal did not abate. In paragraph 10
Hon'ble Apex Court has considered its two earlier judgments but
then the decree there was joint and indivisible one and, therefore,
the possibility of coming into existence of two inconsistent decrees
has been looked into in paragraph 10 as a relevant circumstance.
In facts before me, the death of Subhadrabai has taken place even
before any decree was passed and as such there is no question of
any inconsistent decree coming into existence.
12.
The other judgment of Hon'ble Apex Court in case of N.K.
Mohd, Sulaiman Vs. Mohd. Ismail Saheb & others (supra) again
reiterates the very same principle. It has been held in paragraph 5
that where defendant in a suit dies, the plaintiff has to after
diligent and bona fide enquiry, implead all the legal representatives
and the heirs so impleaded represent the estate of the deceased.
The Hon'ble Apex Court has held that decree so obtained against
legal representatives on record binds not only those heirs but the
record.
In view of this position, it is apparent that the plaintiff has
13.
entire estate including the interest of those who are not brought on
to make bona fide enquiries and thereafter take steps to bring the
legal heirs on record. In the facts of the case, therefore, it is
apparent that immediately after death of Shubhadrabai, appropriate
steps were taken by appellantplaintiff by making application at
Exh. 19. Respondent No. 2 Rambhau was specifically sought to be
brought on record as legal representative of his wife Shubhadrabai.
Participation of Rambhau in suit before he was served with copy of
the said application Exh. 19 is already mentioned above. He
engaged Advocate and thereafter through that Advocate gave his
say that he has no concern with the case. Present respondent No. 1
Shobha also gave her say through Advocate that husband cannot be
brought on record as legal representative. It is to be noticed that
Code of Civil Procedure does not define legal heir but the phrase
used therein is “legal representative” and a person who in law
represents the estate of deceased person is treated as legal
representative. The definition also includes any person who inter
meddles with the estate of the deceased. The provisions of law i.e.
Order XXII rule 4 requires legal representatives of deceased
defendant to be made a party. The trial Court has not in its order
dated 23/02/1981 passed on Exh. 19 assigned any reason but
perhaps in view of statement made by present respondent No. 1
Shobha and Rambhau himself found that Rambhau cannot be legal
representative of Subhadrabai. This Court has issued notice to
Rambhau as to why he should not be joined as partyrespondent in
the present second appeal. Rambhau was again required to be
served through paper publication and grievance was made by
Advocate Hedaoo that Rambhau should be asked to furnish his
registered address on record. Till date, no such address has been
furnished by Rambhau of his own. Rambhau has also not filed any
reply on affidavit explaining his conduct. Neither Rambhau nor his
daughter Shobha have stated anything on oath against the
Advocates who recorded say on Exh. 19. The trial Court having
held that Rambhau was not legal representative. The present
appellant proceeded further and added Shobha alone as legal
representative of Subhadra. In view of this conduct Shobha also
later on could not have contended that Rambhau ought to have
been joined as partydefendant along with her. It is to be noted
that neither Shobha nor Rambhau challenged order dated
22/3/1991. The contention that plaintiff ought to have challenged
said order dated 22/3/1991 passed below Exh. 19 is totally
misconceived because plaintiff had moved appropriate application
and in view of say given upon it both by Rambhau and Shobha, it
was not necessary for him to insist that Rambhau, being husband
should be treated as legal representative of Subhadrabai. Rambhau
has continued to participate in the matter even thereafter and two
applications moved by him in Hindi vide Exhs. 38 and 40 are
already mentioned by me above. In both the applications he has
stated that he is the owner after death of his wife and he has not
been joined as party and that the plaintiff was abusing process of
law and wasting time of Courts. In Exh. 40 he contended that he
was not made party and Court as also the plaintiff would be
responsible for any loss or damage caused to his property.
However, he has not taken any steps either to seek review of order
dated 22/3/1991 or to challenge it. During his arguments,
Advocate Pathak for Rambhau has contended that Rambhau and
Shobha both are Aadivasi. However, it was also stated that they
belonged to scheduled caste, i.e. “mahar”. In application Exh. 38
Rambhau has used word as “Aadivasi Gond” to contend that
property of Aadivasi cannot be purchased by anybody. Advocate
Pathak has also tried to raise very same ground. The law in this
respect only prohibits sale and purchase of agricultural property
and admittedly the suit property is a residential plot and house on
it. After the decree was passed in civil suit, Rambhau did not
bother to file any appeal and after the appeal filed by his daughter
was decided refusing specific performance and ordering refund of
sale consideration, he moved application obviously on behalf of his
daughter seeking permission to deposit amount of Rs. 21,500/ and
also seeking time of 15 days for that purpose which was allowed on
31/8/2001.
14.
The conduct of Rambhau and Shobha, therefore, clearly
show that they were only abusing the process of law and did not act
honestly and Rambhau has failed to show his bona fides even in
response to the notice issued by this Court. This Court in its order
dated 06/4/2007 has found that Rambhau and Shobha were
blowing hot and cold and came up with two contrary cases at two
different stages. Such conduct of respondent and Rambhau could
not have resulted in nonsuiting the plaintiff and to a decree for
specific performance of the contract. In these circumstances, in view
of discussion above, it is clear that lower appellate Court was wrong
in holding that suit abated against Rambhau only. Rambhau has
not shown that there was any collusion between Shobha and
present appellant nor the interest of Shobha was in any way
adverse to him. It is therefore clear that Shobha has effectively and
adequately represented the estate of Subhadrabai. The case was
filed against Subhadrabai and after her death, the estate needed to
be represented by her legal representative and Shobha has
effectively discharged that obligation. The history mentioned
above clearly shows that there was collusion between Shobha and
Rambhau and both of them have tried to use the law to the
detriment of appellantplaintiff. Plaintiff acted honestly and
diligently by moving application at Exh, 19 and respondents have to
blame themselves for their attempt to delay the decision of civil
suit. They did not approach the Court with clean hands and there is
nothing on record to doubt appellant's bona fides. Despite
opportunity to him, Rambhau has failed even to point out any legal
prejudice to him in entire process. I, therefore, find that learned
appellate Court was not right in holding that suit did not abate only
against Shobha and it abated against Rambhau. The suit did not
abate at all and as the estate was adequately represented, the view
taken by the appellate Court is unsustainable. The learned lower
appellate Court has also committed error while observing that it
was not possible for it to find out value of half share of appellant
Shobha in the suit property. However, in view of my findings
above, the said consideration is rendered totally irrelevant.
15.
It is apparent that right and interest of deceased
Subhadrabai and her estate were sufficiently represented before the
trial Court and, therefore, Rambhau need not have been brought on
record as legal representative in the suit. By not bringing him on
record, no prejudice is caused to the case and cause of the present
appellant because Rambhau and Shobha had to blame themselves
for the situation in which they have landed. Plaintiff can not be
made to suffer for respondent's improper conduct. Substantial
question of law formulated is, therefore, answered in negative, i.e.
in favour of present appellantplaintiff and against respondent Nos.
1 and 2. The judgment and decree delivered by the trial Court is,
therefore, binding not only on respondent No. 1 but also on
respondent No. 2.
16.
Judgment and decree dated 29/6/2005 delivered by 10th
Adhoc Additional District Judge, Nagpur in regular civil appeal No.
463 of 2000 is hereby quashed and set aside. Judgment and decree
dated 30/7/1992 delivered by 7th Joint Civil Judge, Senior Division,
Nagpur in special civil suit No. 554 of 1986 is hereby restored.
Second appeal is thus allowed with costs throughout payable by
respondents to the present appellant. The trial Court had given the
present appellant/plaintiff time of two months to deposit the
balance amount of sale consideration. The said period of two
months shall be computed from today.
Rule is made absolute accordingly.
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