S.K.Anwerjan v. C.Leelavathi

Under his Last Will and Testamentmade and executed at Chinnakondrapadu Village, PratipaduMandalam, Guntur District, Andhra Pradesh, the said 2ndrespondent has appointed (1) Mr.Ramesh Babu, son ofV.Ramadas, No.65, 8th Street, 6th Cross, Vaishnavi Nagar, Thirumullaivoyal, Chennai-109 and (2) Mr.L.K.Prasad, son ofDr.L.Veera Rao, of Chinakondrapadu Village, PratipaduMandalam, Guntur District as his executors. It is prayedthat notice in the appeal be issued to the said Executors. Dated at Chennai this the 12th day of July 2007."whereupon, the said newly added respondents have been added withoutin any way the appellant admitting or acknowledging that they are thelegal representatives of the deceased Srinivasa Rao. However, onlyfor the purpose of proceeding with the appeal, they have been added, as per Order XXII Rule 4-A of C.P.C.; and those newly addedrespondents cannot canvas any right under the said Will, which wasnot admittedly probated, even though the suit property is situatedwithin Chennai city and that as per Section 213 of the IndianSuccession Act, the said Will cannot be relied on by the Court forany purpose.11.

In support of her proposition, the learned Senior counsel forthe appellant cited various decisions and therefore, it is just andnecessary to refer to them: (i) 2001 4 Civil Law Journal 209 -Bangali Singh and another vs. Ramanuj Sharma- A excerpt from the decision in would rund thus: https://hcservices.ecourts.gov.in/hcservices/ "5. . . . . . . .In this connection I am to refer to OrderXXII, Rule 4-A CPC, where it has been laid down that if, inany suit it shall appear to the Court that there is no legalrepresentative of the party who died during the pendency ofthe suit, the Court may on the application of any party tothe suit proceed in absence of a person representing thestate of the deceased person, or may by order appoint the Administrator-General, or an officer of the Court of suchother person as it thinks fit to represent the estate of thedeceased person or order subsequently given or made in thesuit shall bind the estate of the deceased person to thesame extent as he would have been bound if a personalrepresentative of the deceased person had been a party tothe suit.

This rule was added by amending Act 104 of 1976.The aforesaid provisions makes it abundantly clear that asuit may be allowed to proceed even in the absence of thedeceased plaintiff or defendant by a person who is appointedby the Court to represent the estate of the deceasedplaintiff or defendant and the suit may be continued by thatperson and a judgement and decree may be passed. Thisjudgement and decree will bind the estate of the deceased. That means the estate of the deceased will be protected bythe judgement and decree passed by the Court. So, thespirit behind substitution is that interest of the originalplaintiff or defendant who dies during the pendency of thesuit and who is to be represented by the substitutedplaintiff may be protected. This is the inherent spiritbehind substitution. So, when the original plaintiff DaroKuer, had filed a suit seeking setting aside of the allegeddeed of gift executed by her in favour of the defendant ofthe suit, the legal representative whoever may be shall beentitled to continue the suit and protect the interest ofthe original plaintiff.

If the suit is allowed to abate, the interest of the original plaintiff shall become extinctand the defendants of the suit shall be holding the suitland under illegal right. Normally when estate of anyperson is without any heir the property goes to the State byescheat but when suit abates and the defendant of aparticular suit is allowed to hold the suit land illegallyeven the State cannot take the property of the deceasedplaintiff by escheat. So, guiding principle behindsubstitution as mentioned in the amending Rule 4-A, OrderXXII, C.P.C.is that the suit must be allowed to be continuedby a legal representative in order to protect the interestof the original plaintiff and to protect the interest of theoriginal plaintiff and to protect his or her estate frombeing usurped by unauthorised person. So, I do not thinkthat the decree passed by the Trial Court was bad or the https://hcservices.ecourts.gov.in/hcservices/ decree confirmed by the appellate Court was also vitiated byany illegality.

The decree passed in the instant suitwould, therefore, be a decree in favour of the originalplaintiff Daro Kuer and not in favour of the substitutedplaintiff. Now I shall herein below consider when RamanujSharma acquired any right being the legal representative of Daro Kuer by virtue of the decree passed by the lowerCourts. In this Connection I am to refer to a decisioncited by the defendant's Lawyer as in AIR 1971 Kerala Page270(Geevarghese and another v. Issahak George and others). .. . . 6. . . . .. .However, if it was declared by the Court by itsdecree that right of the plaintiff remained unaffected thatmay amount to the declaration that the substituted plaintiffRamanuj Sharma had also acquired title to the suit property. In this connection, I am of the opinion that of course, thedecree in the present form might indicate that the right ofthe substituted plaintiff in the suit land remandedunaffected.

However, of course the substituted plaintiffwould derive no title, right and any interest n the suitland by virtue of the unprobated Will although he might actas legal representative to continue the suit. So, it ismade clear here and it is observed that the substitutedplaintiff Ramanuj Sharma shall derive no right, title andany interest over the suit property by seeking thecancellation of the deed of gift, as decree by the two lowerCourts. It is the original plaintiff whose right and titleof the suit property shall remain unaffected by the decreegranted by the two lower Courts. "12. A perusal of the said judgement would highlight the fact thatan unprobated Will cannot be presumed to service for any purposebefore the Court to derive any title by the newly added respondents, who could only on behalf of the deceased participate in theproceedings. But for their presence, the Court should proceed in anyof the other modes contemplated under Order XXII, Rule 4-A. 13.

At this juncture, it is just and necessary to extracthereunder Order XXII, Rule 4-A C.P.C:"Order XXII, Rule 4-A.Procedure where there is no legalrepresentative – If in any suit, it shall appear to thecourt that any party who has died during the pendency of thesuit has no legal representative the Court may, on theapplication of any party to the suit, proceed in the absenceof a person representing the estate of the deceased person, or may by order appoint the Administrator General, or an https://hcservices.ecourts.gov.in/hcservices/ officer of the Court or such other person as it thinks fitto represent the estate of the deceased person for thepurpose of the suit and any judgment or order subsequentlygiven or made in the suit shall bind the estate of thedeceased person to the same extent as he would have beenbound if a person had been a party to the suit. "14. A perusal of the above would indicate the relevant procedureto be adopted in the event of no one could be located forrepresenting the interest of the deceased.15.

Here, in this case, since the learned counsel, who appearedon behalf of the deceased filed the memo, highlighting the said newlyadded three respondents as executors of the Will, the Court isjustified in citing them in the party array. As such, I am incomplete agreement with the view expressed by the Patna High Court inthe judgement reported in 2001 4 Civil Lar Journal 209 -Bangali Singhand another vs. Ramanuj Sharma, cited supra. 16. An excerpt from one other decision cited by the learnedSenior counsel for the plaintiff reported in "2001 Vol.103(4)Bom.L.R.540 GULABBEN WD/O CHIMANLAL MANIAR & OTHERS VS. NARENDRABALCHANDRA AND OTHERS would run thus:-"7. . . . . On plain language of this provision it wouldappear that any party to the suit could have taken recourseto this Rule, nay was duty-bound to do so. While doing so, it was enough for the plaintiffs to assert that deceaseddefendant No.1 had not left behind any heir or legalrepresentative to represent his estate so as to invoke thisrule.

The application filed by the petitioners does makethis assertion. Moreover the evidence let in during trialwould also fortify this position, as contended by thepetitioners. But the Court below has erroneously recordedthat there is nothing before the Court that no heir andlegal representative were left by defendant No.1 after herdeath. This finding is therefore rightly critized by thelearned counsel for the petitioners being an error apparenton the face of the record. I find substance in the saidsubmission. In other words, the Court below has appliedwrong test while deciding the application in question. Oncethis finding is reversed, as a necessary corollary, it wouldfollow that the trial Court will have to re-examine thematter in the context of scope of rule 4A coupled withprocedural requirement under sub-rule (2) of Rule 4A. Whiledoing so, the Curt below shall also bear in mind the effectof sub rule (4) of Rule 4 which postulates that the Courtwhenever it thinks fit may exempt the plaintiff from the https://hcservices.ecourts.gov.in/hcservices/ necessity of substituting the legal representatives of anysuch defendant who has failed to file written statement orwho, having filed it, has failed to appear and contest thesuit at the hearing; and judgment may, in such a case, bepronounced against the said defendant notwithstanding thedeath of such defendant and shall have the same force andeffect as before the death took place.

It is not in disputethat the deceased defendant No.1 had not filed writtenstatement in the suit, therefore, in terms of Rule 4(4) theplaintiffs were additionally entitled to claim that theycould be exempted from the necessity of substituting thelegal representatives, in which case the order of abatementof suit as against such defendant was unwarranted andimpertinent.9. In the circumstances the only appropriate order thatcould be passed is to remit the matter to the trial Court tore-examine the application in the context of requirements ofsub-rule (4) of rule 4 as well as rule 4A of Order XXII ofthe Code of Civil Procedure.10. The Argument advanced on behalf of the respondents thatthe petitioners-plaintiffs had failed to move for settingaside the order passed on 16.9.1992 is of no avail. In myview, the application in question, as is evident from theassertion made therein was taken out only after evidence waslet in before the trial Court and which would go to showthat the deceased defendant No.1 has not left behind anyheir or legal representative.

In the changed situation thesaid application was filed by the plaintiffs and therefore, it would be wholly in appropriate to non-suit the plaintiffson the ground that no steps have been taken for settingaside the order date 16.9.1992. in my view, theobservations made by the trial Court in its order dated30.8.1995 will have to be understood int he context of factsituation which has come on record. Needless to mentionthat the order of abatement is not so sacrosanct orinviolable that the same cannot be altered at a subsequentpoint of time inspite of sufficient cause being shown by theplaintiffs or any other party to the suit. If the party tothe suit is able to satisfy the Court that the requirementsof Rule 4A or Rule 4(4) are attracted in a given case thenthe Court may in its inherent powers pass appropriate ordersincluding an order of setting aside abatement on suchground. If the aforesaid rules permit prosecution of thesuit in absence of legal representatives of the deceasedparty, and yet the judgement passed would bind the estate ofsuch deceased party, then surely it would be preposterous to https://hcservices.ecourts.gov.in/hcservices/ contend that suit against such a person would abate law.

Both these situations would be antithesis to each other. Inmy view it would defeat the legislative intent behind the Amendment Act of 1976."17. As such, the said decision also would highlight the sameproposition as posited supra. Hence, I am of the considered opinionthat trite the proposition of law is that unprobated Will relating tothe property situated in Chennai city, cannot be looked into for anypurpose. However, those newly added parties are only allowed toproceed with the appeal, for the purpose of comprehensively decidingfinally the issues involved in this case and I make it clear thatthey cannot derive any personal benefit over the suit property. Accordingly the first point is decided.18. Point No.2 the learned Senior counsel for the appellant wouldadvance her argument that A.S.No.22 of 1993, which was filed by Srinivasa Rao, challenging the dismissal of his suit O.S.No.7112 of1986 for specific performance of the said agreement to sell, wasdismissed for default; no steps were taken to get the appeal restoredby anyone on his behalf; as a sequela, in such a case the decisionof the lower Court in O.S.No.7112 of 1986 dismissing Srinivasa Rao'sclaim for specific performance would operate as resjudicata asagainst the newly added respondents in this appeal to defend thisappeal in any manner whatsoever.19.

However, the learned counsel for the newly added respondentswould submit that absolutely there is no embargo for the newly addedrespondents in defending this appeal effectively on all Courts. 20. At this juncture my mind is redolent with the followingdecisions: (i) An extract from the decision reported in AIR 1966 SC 1332[Sheodan Singh vs. Daryao Kunwar] would run thus: "20. ... ... ... Where the trial Court has decidedtwo suits having common issues on the merits and thereare two appeals therefrom and one of them is dismissed onsome preliminary ground, like limitation of default inprinting with the result that the trial Court's decisionstands confirmed, the decision of the appeal court willbe res judicata and the appeal Court must be deemed tohave heard and finally decided the matter. In such acase the result of the decision of the appeal court is toconfirm the decision of the trial Court given on merits, and if that is so the decision of the appeal court willbe res judicata whatever may be the reason for thedismissal. ...." https://hcservices.ecourts.gov.in/hcservices/ (ii) An extract from the decision reported in 2001(1)M.L.J. 212[Renganayaki and another vs.

K.R.Renganatha Mudaliar] would run thus: "11. ... ... .... it can safely be concluded thatwhere two connected suits have been tried together andthe findings recorded in one of the suits have becomefinal, in the absence of an appeal, the appeal preferredagainst the findings recorded in the other suit woulddefinitely be barred by the principles of res judicata. "(iii) An extract from the decision reported in 2001(4)CTC 297[K.A.Perumalsamy vs. A.Kandasamy and another] would run thus: "11. ... ... ... There is a clear finding against theappellant in respect of the other two suits also and whenonce the appellant failed to prefer any appeal against theother two judgments, naturally the present appeal also wouldbe barred on the principles of res judicata. In support ofhis contention, reliance is placed upon the decisionreported in Premier Tyres Ltd., v. Kerala State RoadTransport Corporation, 1993 Supp (2) SCC 146, wherein it wasobserved that where two connected suits tried together andfinding recorded in one suit became final in absence ofappeal, appeal preferred against the finding recorded in theother suit would be barred by res judicata.

The same viewhas been reiterated in Lonankutty v. Thomman and another, AIR 1976 SC 1645, Sheodan Singh v. Daryao Kunwar AIR 1996 SC1332 and Vediammal and others v. M.Kandasamy and others1997 TI NJ 96. In view of the decisions, it is patentlyclear that the principle of res judicata is also applicableto the case on hand. The courts below have rightlyappreciated the contentions raised by the appellant andthere is no illegality or infirmity calling for anyinterference. "21. As such, a mere perusal of the aforesaid precedents wouldhighlight that for whatever reason, an appeals is dismissed, including the one on the ground of default, certainly it wouldoperate as resjudicata, in the connected appeal. The fact remainsthat the lower Court passed common judgement in O.S.No.196/85 and inO.S.7112/86. Issues were framed in both the matters, separately. However, a bare perusal of those issues and the pleadings wouldevince that in the suit O.S.No.196 of 1985 filed by theplaintiff/appellant herein for recovery of suit the property and inthe suit O.S.No.711 of 1986 filed by Srinivasa Rao for specificperformance, the real controversy and the apple of discord and thefacts involved are one and the same. https://hcservices.ecourts.gov.in/hcservices/

(2) The transferee of an actionable claim may, upon theexecution of such instrument of transfer as aforesaid, sueor institute proceedings for the same in his own namewithout obtaining the transferor's consent to such suit orproceedings and without making him a party thereto. "35, At first place, it appears that the definition of actionableclaim is relating to movable property only and not relating toimmovable property. The learned Senior counsel for theplaintiff/appellant would argue that the right accrues under anagreement to sell is only a movable right and as such, it wouldattract Section 130 of the Transfer of Property Act. 36. In support of her contention, she also cited the followingdecisions: (i) AIR 1928 PRIVY COUNCIL 174 - SAKALAGUNA NAYUDU AND ANOTHERVS. CHINNA MUNUSSWAMI NAYAKAR. An excerpt from this would run thus: "The only further question is whether the benefit of thecontract had been effectually assigned to the plaintiffbefore the suit was instituted.

It was argued on behalf ofthe appellant-defendants that on the insolvency of Venkatasubrahmanya the property of the joint family, including the benefit of the above mentioned contact, vestedin the Official Assignee, and that the benefit of thecontract never was assigned to the plaintiff. On the otherhand, it was argued on behalf of the plaintiff that on theinsolvency of Venkatasubrahmanya the joint family propertyremained in the joint family subject to any action which the Official Assignee might take to get possession of Venkatasubrahmanya' share. In view of the facts of thiscase their Lordships do not think it necessary to enter uponthe consideration of this question or to decide which of theabove mentioned contentions is correct, because whichever ofthem be adopted, their Lordships are of opinion that theplaintiff must succeed. https://hcservices.ecourts.gov.in/hcservices/ If the first of the above-mentioned contentions beadopted, the plaintiff is entitled to rely on the conveyanceof 27th February 1916; by which the Official Assigneeconveyed all the right, title and interest of the insolvent, Venkatasubrahmanya in the village to Krishnasami.

It isclear on the evidence that this conveyance, though taken inthe name of Krishnasami, was on behalf of, and for thebenefit of, the plaintiff, who had supplied part of themoney paid to the Official Assignee and who had alreadypurchased the village and the benefit of the contract dated27th January 1891, for valuable consideration. Krishnasamihad at the time of the conveyance by the Official Assigneeno interest in the village or the contract as wassubsequently acknowledged by his widow and heir. If the second of the above-mentioned contentions beadopted, then the deed of 12th May 1910, by which Krishnasamyconveyed the village and assigned the benefit of thecontract of 27th January 1891 to the plaintiff's title andhis right to sue for the enforcement of the said contract. Their Lordships, therefore, are of opinion thatwhichever of the above mentioned contentions be adopted, thebenefit of the contract had become vested in the plaintiffbefore the institution of the suit, and the plaintiff, having made an adequate tender of the amount specified inthe contract at the time mentioned therein, was entitled tocall upon the defendants, the sons and heirs of Venkatapathi, for a conveyance of the property.

TheirLordships are of opinion that the decree of the High Court, dated 5th March 1925, was correct, and that this appealshould be dismissed with costs. They will humbly advise HisMajesty accordingly. "(ii) AIR 1919 MADRAS 1076 – SEETHARAMA AYYAR AND ANOTHER VS.NARAYANASWAMI PILLAI AND ANOTHER, an excerpt from this would run thus: "S.62, Contract Act, covers cases in which the liability ofa debtor to pay to his original creditor is extinguishedbecause of a new contract by which he has made himselfliable to a third person. But S.130, T.P.Act, provides fortransfer of choses-in-action by the person to whom theamount is due to a third person. It does not deal withcases of transfer of the liability of a debtor to somebodyelse. The debtor, it is well established, cannot transferhis liability without the consent of his creditor. We aretherefore of opinion that the Subordinate Judge's judgementis wrong and liable to be set aside as it proceeds upon an https://hcservices.ecourts.gov.in/hcservices/ erroneous view of the law.

We set aside the judgement ofthe Subordinate Judge and restore the decree of the DistrictMunsif with costs here and in the Court below. "37. As such, a bare perusal of the above said precedents and theprovisions of law extracted would show that even the right accruedunder the agreement to sell is an actionable claim and any transferwould attract an instrument in writing as per Section 130 of the Transfer of Property Act. 38. I am also of the considered opinion that in the present daycontext mostly people stoop down to any level of uttering outfalsehood for the purpose of getting things done. The courts alsoshould be aware of those happenings in society and take a pragmaticview and insist upon written documents and any decision to thecontrary would add fuel to the fire in the exiting situation that isprevailing in the Society. As such, I am of the considered opinionthat a written instrument is required to transfer the right accruedunder an agreement to sell.

Over and above that there is also oneanother crucial fact, which could be set out thus.39. I have also called upon both sides to advance arguments basedon Section 53 of the Transfer of Property Act.40. Section 53 of the Transfer of the Transfer of Property Act isre-produced hereunder: "53. Fraudulent transfer.-(1) every transfer of immovableproperty made with intent to defeat or delay the creditorsof the transferor shall be voidable at the option of anycreditor so defeated or delayed. Nothing in this sub-section shall impair the rights ofa transferee in good faith and for consideration. Nothing in this sub-section shall affect any law forthe time being in force relating to insolvency.A suit instituted by a creditor (which term include adecree holder whether he has or has not applied forexecution of his decree) to avoid a transfer on the groundthat it has been made with intent to defeat or delay thecreditors of the transferor shall be instituted on behalfof, or for the benefit of, all the creditors.

(2) Every transfer of immovable property made withoutconsideration with intent to defraud a subsequent transfereeshall be voidable at the option of such transferee. https://hcservices.ecourts.gov.in/hcservices/ For the purposes of this sub-section, no transfer madewithout consideration shall be deemed to have been made withintent to defraud by reason only that a subsequent transferfor consideration was made. "41. A bare perusal of it would clearly highlight that a writtendocument is required, if an agreement to sell contemplates that theproposed purchaser should be put in possession of the subject matterof the agreement to sell even before the sale deed fructifies. It istherefore obvious and axiomatic that when part performance isenvisaged in an agreement to sell, it should be in writing and as acorollary, sequel and logical sequence of it, if any transfer of suchinterest by the proposed purchaser under such an agreement to sellshould also be only by virtue of a written agreement.

When the lawitself, without mincing words, stipulates that at the first instanceitself there should be a written instrument envisaging partperformance, then the subsequent transfer also should be in writingand it cannot be oral. 42. Here, indubitably, unequivocally and unassailably, Ex.A51would envisage part performance and thereby attracted Section 53-A ofthe Transfer of Property Act and the alleged transfer of interest ofD1 in favour of D2, as per the alleged tripartite agreement, shouldhave been in writing, but it was not so. Hence, the plea of D2 isuntenable.43. The learned counsel for the newly added respondents woulddevelop his argument that inasmuch as such oral transfer was effectedwith the consent of the plaintiff, no written instrument wasrequired. 44. I am of the considered opinion that the alleged consent orno consent would not change the legal position as set out supra byme. The distinction sought to be made by the learned counsel for thenewly added respondents amounts to tweedledum and tweedledee, to wit, illusory.

45. There is also one another point involved in this case as towhether D2 proved the very tripartite agreement itself. No doubtevidence was adduced on the side of D2 to highlight that there wassome meeting among the said three persons, namely, the plaintiff, D1and D2. But, absolutely there is no convincing explanation as to whyit was not reduced into writing. Much time would not have been takento make an endorsement in the earlier agreement to sell itself, aboutthe said tripartite agreement. For which, the learned counsel wouldtry to expound by submitting that the subsequent conduct of theparties could be seen as incontrovertible D2 continued to pay theinstalments and the benefit was enjoyed by the plaintiff and that he https://hcservices.ecourts.gov.in/hcservices/ could not veer round and take pleadings quite antithetical to whatactually he acquiesced to. No doubt, the subsequent circumstanceswould demonstrate the real intention of the parties to an agreement.

But, in this case D2 was in occupation of the suit property and itwas no wonder that he paid monthly instalments, as found set out inthe pass-book-B13. By that alone D2 had acquired no right over thesuit property as claimed by him. Accordingly, point No.(iii) isdecided in favour of the appellant.46. Point No.(iv): As regards limitation, the trial Court simplyheld that the suit filed by the plaintiff is barred by limitation, ashe did not file it within three years. The trial Court has notreferred to any provision of law in support of its decision. It isquite axiomatic that an owner of immovable property could file a suitwithin twelve years' and for that matter even beyond 12 years also, such a suit could be filed, so long as the defendants have notacquired title over it. Learned counsel for D2 would argue that forsuing, consequent upon breach of contract, only three years' periodis contemplated.

Here, the suit filed by the plaintiff is not basedupon any mere breach of contract. It is an admitted fact that theplaintiff alone had substantive right over the suit property and hefiled the suit for recovery of possession, ignoring the agreement tosell, which is void. The Courts' findings also are to the effectthat the said agreement to sell is void and there was no transfer ofinterest under the said agreement to sell by D1 in favour of D2 andin such a case, the plea of limitation is a mis-conceived one andaccordingly point No.iv is decided that the suit is not barred bylimitation also.47. Point No.v: D2 is not proved to have been put in possessionby the plaintiff directly under some illegal contract and he was notgiven any ostensible right also over the suit property. The verytripartite agreement alleged to have emerged has not been proved andeven no right was got transferred in favour of D2.

To the risk ofrepetition, I would highlight that the plaintiff, on the strength ofearlier allotment of the suit property by the Housing Board and onthe strength of sale deed executed by the Housing Board in his favourfiled the suit against D2, who is virtually a stranger to theplaintiff and in such a case, the view of the trial Court in usingthe maxim in parie delicto potior est conditio possidentisis totally untenable and accordingly this point is decided in favourof the appellant and as against the defendants. 48. Point No.vi: In the result, the judgement and decree of thetrial Court is set aside and the original suit is decreed to theeffect that the plaintiff is entitled to obtain delivery ofpossession of the suit property and correspondingly, the respondentsshall put the appellant/plaintiff in possession of the suit property https://hcservices.ecourts.gov.in/hcservices/ subject to the condition that the plaintiff/appellant shall depositthe sum of Rs.24,000/-(Rupees Twenty four thousand only) in the lowerCourt within a period of two months, if not already deposited, fromthe date of receipt of a copy of this judgement.