Limitation for bringing subsequent legal heirs on record when some legal heirs are already on record

 It would, therefore, appear that it is now well settled that an application which is subsequently filed to bring some of the legal representatives of a deceased defendant on record when the others have been brought on record already within the period of limitation, would not be governed by the period of limitation laid down in Article 120 of the Limitation Act of 1963 but would be governed by the period of limitation laid down in Article 137 of the said Act, this period being three years. Obviously the application in the present case was within time. The trial Court, therefore, committed a material irregularity in exercising its jurisdiction in refusing the application on the ground that it was barred by limitation. In the circumstances, Therefore, the order will have to be set aside and the matter will have to be remitted to it for passing proper order on the basis that the application was within time.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revn. Appln. No. 125 of 1976

Decided On: 16.02.1979

Appellants: Qazi Abdul Quddus Qazi Abdul Rahim
Vs.
Respondent: Qazi Ghaziuddin S/o Qazi Aminuddin and others

Hon'ble Judges/Coram:
A.A. Ginwala, J.

Citation;1979MhLJ431,1979 BCI57 Bom

1. The question for consideration in this revision application is as to what is the period of limitation for an application made to bring some of the legal representatives of a deceased defendant on record when the others have already been brought on record within time. This question arises in the following circumstances.

2. The plaintiff applicant filed a suit against three defendants including one Qazi Aminuddin, for vacant possession of a piece of land. Qazi Aminuddin was the contesting defendant. He expired on 3rd May 1974 during the pendency of the suit. The plaintiff applied for time to bring on record five of his heirs as his legal representatives. He was allowed to do so and these five persons were made party to the suit. They are non-applicant Nos. 1 to 5 in this Court. Thereafter on 19th October 1974 the plaintiff made another application to bring on record three more persons who are also legal representatives of deceased Aminuddin. In this application the plaintiff stated that he did not know till 7th October 1974 that these persons were also legal representatives of the deceased and hence he was applying for their being brought on record after he came to know about it. These three persons are non-applicant Nos. 8 to 10 herein. Out of these three, non-applicant No. 1 Butoolbi appeared and stated that she was not claiming any interest in the estate of the deceased and hence the application should be rejected. She also contended that the application was not within time and no ground had been shown for condoning the delay. The other two non-applicants, viz., non-applicants Nos. 8 and 9 sought time to file their reply, but it appears that they did not file any reply. The trial Court passed its order on this application on 30th September 1975. It rejected the application on the ground that it had been preferred beyond time and no reasons had been given for condoning the delay and the reason which was given was not sufficient. It is against this order that the present revision application has been filed.

3. Mr. N. S. Kherdekar, the Learned Counsel for the applicant, submitted that the trial Court had misconceived the legal position obtaining in such cases. He submitted that an application of the present nature would not be governed by Article 120 of the Limitation Act but by Article 137 of the said Act, which provides a period of limitation of three years. He, therefore, contended that the trial Court had wrongly refused to exercise jurisdiction on the ground of limitation.

4. In Jahrabi v. Bismillabi MANU/MH/0038/1924 : AIR 1924 Bom. 420, this Court has held that it is sufficient for the plaintiff in a suit, if a defendant dies, to put one of the heirs on the record as his legal representative who will then represent the estate of the deceased for the purpose of the suit and that it would be impossible for a plaintiff to find out who are all the heirs of a deceased defendant and it is for those who claim to be heirs to come in if they wish to be represented in the suit. It would thus appear that according to this Court, if some of the legal representatives of a deceased defendant are brought on record within time, the suit will not abate. A similar view has been taken in Ishwarlal v KuberMANU/MH/0136/1943 : AIR 1943 Bom. 457. It was a case of the legal representatives of a deceased appellant being brought on record.

5. The question as to by which Article of the Limitation Act a subsequent application for bringing some of the legal representatives of a defendant would be governed has been subject of judicial decision in various High Courts. In Abdul Baki v. R. B. Bansilal MANU/NA/0150/1943 : 1944 NLJ 331 : AIR 1945 Nag. 53 : ILR 1944 Nag 577, the erstwhile High Court of Nagpur held that where some of the legal representatives of a deceased defendant have been brought on record on an application made within limitation, a subsequent application for bringing other persons on record as legal representatives is not governed by the 90 days rule but is governed by limitation of three years as provided for under Article 181 of the Limitation Act, 1908. A similar view has been taken by the High Court of Andhra Pradesh in Mannem Venkataramayya v. M. MunnemmaMANU/AP/0172/1963 : AIR 1963 A. P. 406 and by the High Court of Delhi in Smt. Kailash Kapoor v. Naresh Chandra AIR 1972 Del 252.

6. It would, therefore, appear that it is now well settled that an application which is subsequently filed to bring some of the legal representatives of a deceased defendant on record when the others have been brought on record already within the period of limitation, would not be governed by the period of limitation laid down in Article 120 of the Limitation Act of 1963 but would be governed by the period of limitation laid down in Article 137 of the said Act, this period being three years. Obviously the application in the present case was within time. The trial Court, therefore, committed a material irregularity in exercising its jurisdiction in refusing the application on the ground that it was barred by limitation. In the circumstances, Therefore, the order will have to be set aside and the matter will have to be remitted to it for passing proper order on the basis that the application was within time.

7. In the result, therefore, the application is allowed, rule is made absolute, the order passed by the trial Court on the application at Ex. 83 dated 30th September 1975 is hereby set aside and the matter is remitted to the trial Court and the trial Court is directed to treat this application as having been filed within time and dispose it of accordingly. In the circumstances of the case there shall be no order as to costs.

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