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Saturday, 1 February 2014

When suit is not abated even though legal representatives of one of deceased deft is 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 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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