When we look at the ratio of the decision in PPK Gopalan Nambiar
(Supra), it is clear that the Appeal proceeding survives against the co-defendant.
That apart in Kanhaiyalal vs. Rameshwar reported in (1983) 2 SCC 260, the Apex
Court held that presence of the deceased or his successor was unnecessary as no
relief is claimed against this party. Therefore at best there can only be limited
abatement of the pending proceeding. From this it is clear that the abatement of
the entire Appeal couldn’t have been ordered since the right to sue survives
against the co-defendant. Because of this reasoning I hold that the impugned
decision suffers from a jurisdictional error and accordingly the same is quashed.
The Appeal however stands abated against the deceased Sukumar Das, whose
legal heirs were not substituted by the appellant. Under the circumstances the
T.A. No.19/2006 will have to be decided on merit, amongst the surviving parties
and it is ordered accordingly.
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Civil Revision Petition No. 403/2007
Sri Santosh Kumar Das,
-VERSUS-
Smti. Mukti Rani Das,
BEFORE
HON’BLE MR JUSTICE HRISHIKESH ROY
Citation; AIR 2015 Gauhati 108
Heard Mr. MH Ahmed, learned counsel appearing for the petitioner, who
was originally the plaintiff No.3 in the T.S. No.5/1995. Also heard Mr. D.
Chakrabarty, the learned counsel appearing for the respondent Nos.1—6, who
are the successors of Late Shantimay Das, who was originally arrayed as the
defendant No.1 in the case.
2. The suit was filed jointly by three brothers i.e. Sukumar Das, Sushanta
Kumar Das and Santosh Kumar Das against the 4th brother Shantimay Das, for a
declaration of their joint title and 1/4th share in the family property and also for
equal partition of the suit land.
3. However the plaintiff No.1, Sukumar Das disassociated himself from his
two brothers and took a different stand and therefore he was arrayed as
defendant No.1 (Cha) in the suit. In the W.S. (Annexure-2) filed by the
defendant No.1 (Cha), Sukumar Das stated that he sold away his share of the
suit property to his elder brother Shantimay Das through the Registered Deed
No.7203, dated 7.7.1983 and accordingly this defendant clarified that he has no
claim on the suit property.
4. The suit came to be dismissed on 23.6.2004 by the learned Asstt. District
Judge, Karimganj and the RFA No.118/2004 was then filed in the High Court by
the plaintiff Santosh Kumar Das. It may be noted that the other plaintiff
Sushanta Kumar Das did not challenge the suit dismissal order. Because of the
change of the pecuniary jurisdiction, the case was transferred from the High
Court to the Court of the learned District Judge, Karimganj, where the Appeal
was renumbered as the T.A. No.19/2006.
5. Before the Appellate Court, the substituted legal heirs of the defendant
Shantimay Das, through their application dated 8.2.2007 (Annexure-3), prayed
for abatement of the Appeal against the defendant No.1 (Cha) Sukumar Das,
who died on 15.12.2004 because the deceased’s daughter Sukanya Das was
never substituted. It was stated in this application that the appellant Santosh
Kumar Das attended the cremation ground on 15.12.2004 at Karimganj and was
also present at the Shradha ceremony of Late Sukumar Das. But even then he
didn’t substitute the daughter of the deceased and accordingly prayer was made
for abatement of the Appeal in so far as the deceased Sukumar Das was
concerned.CRP No.403/2007 Page 3 of 4
6. Through the impugned order dated 4.8.2007 (Annexure-6), the learned
District Judge considered the application of the respondents (defendants) and
noted that despite being aware of the death of Sukumar Das on 15.12.2004, his
legal heir was not substituted by the appellant. On this basis, the entire Appeal
was declared to have abated through the impugned order dated 4.8.2007
(Annexure-6).
7. Assailing the legality of the order of abatement of the entire Appeal, Mr.
MH Ahmed, learned counsel reads Order 22, Rule 1 of the C.P.C. to contend that
the right to sue survives against the other respondents (defendants) and
therefore on the death of one defendant Sukumar Das, the entire Appeal can’t
abate in law.
8. On the other hand, Mr. D. Chakrabarty, the learned counsel appearing for
the respondents (defendants) submits that in view of the stand of the deceased
defendant Sukumar Das, nothing survives to be decided in the Appeal and
therefore he argues that the District Court correctly held the entire Appeal to
have abated.
9. In PPK Gopalan Nambiar vs. PPK Balakrishnan Nambiar reported in AIR
1995 SC 1852, the Apex Court held that when the deceased had sold off their
respective share in favour of other respondents, by operation of Order 22, Rule
10 of the C.P.C., the proceeding can be continued against the person upon
whom the interest has been transferred.
10. In this case, the deceased Sukumar Das during his lifetime sold away his
share in favour of co-defendant Late Shantimay Das. Therefore when the
successors of the co-defendant are already arrayed in the Appellate proceeding,
the right to sue survives against the transferee, under Order 22, Rule 1 of the
C.P.C.
11. Because of the stand taken by the deceased defendant Sukumar Das in
his W.S., the relief could be claimed only against the co-defendant (Shantimay
Das) to whom, the defendant No.1 (Cha) Sukumar Das sold away his share of
the family property. Therefore the right to sue survives against the co-defendant
and consequently the Appellate Court shouldn’t have declared the Appeal to have
abated for the death of Sukumar Das, who during his lifetime, transferred his
right to the family property to Shantimay Das, whose successors are contesting
the plaintiff’s
12. When we look at the ratio of the decision in PPK Gopalan Nambiar
(Supra), it is clear that the Appeal proceeding survives against the co-defendant.
That apart in Kanhaiyalal vs. Rameshwar reported in (1983) 2 SCC 260, the Apex
Court held that presence of the deceased or his successor was unnecessary as no
relief is claimed against this party. Therefore at best there can only be limited
abatement of the pending proceeding. From this it is clear that the abatement of
the entire Appeal couldn’t have been ordered since the right to sue survives
against the co-defendant. Because of this reasoning I hold that the impugned
decision suffers from a jurisdictional error and accordingly the same is quashed.
The Appeal however stands abated against the deceased Sukumar Das, whose
legal heirs were not substituted by the appellant. Under the circumstances the
T.A. No.19/2006 will have to be decided on merit, amongst the surviving parties
and it is ordered accordingly.
13. To facilitate the Appellate Court to proceed further, the learned counsel
Mr. M.H. Ahmed and Mr. D. Chakrabarty for the contesting sides have assured
that their respective client(s) will voluntarily appear before the Court on
27.4.2015 and therefore the District Court need not issue any notice for their
appearance. The Registry should return back the LCRs alongwith a copy of this
order to the Court of the learned District Judge, Karimganj.
JUDGE
Barman.
Print Page
(Supra), it is clear that the Appeal proceeding survives against the co-defendant.
That apart in Kanhaiyalal vs. Rameshwar reported in (1983) 2 SCC 260, the Apex
Court held that presence of the deceased or his successor was unnecessary as no
relief is claimed against this party. Therefore at best there can only be limited
abatement of the pending proceeding. From this it is clear that the abatement of
the entire Appeal couldn’t have been ordered since the right to sue survives
against the co-defendant. Because of this reasoning I hold that the impugned
decision suffers from a jurisdictional error and accordingly the same is quashed.
The Appeal however stands abated against the deceased Sukumar Das, whose
legal heirs were not substituted by the appellant. Under the circumstances the
T.A. No.19/2006 will have to be decided on merit, amongst the surviving parties
and it is ordered accordingly.
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Civil Revision Petition No. 403/2007
Sri Santosh Kumar Das,
-VERSUS-
Smti. Mukti Rani Das,
BEFORE
HON’BLE MR JUSTICE HRISHIKESH ROY
Citation; AIR 2015 Gauhati 108
Heard Mr. MH Ahmed, learned counsel appearing for the petitioner, who
was originally the plaintiff No.3 in the T.S. No.5/1995. Also heard Mr. D.
Chakrabarty, the learned counsel appearing for the respondent Nos.1—6, who
are the successors of Late Shantimay Das, who was originally arrayed as the
defendant No.1 in the case.
2. The suit was filed jointly by three brothers i.e. Sukumar Das, Sushanta
Kumar Das and Santosh Kumar Das against the 4th brother Shantimay Das, for a
declaration of their joint title and 1/4th share in the family property and also for
equal partition of the suit land.
3. However the plaintiff No.1, Sukumar Das disassociated himself from his
two brothers and took a different stand and therefore he was arrayed as
defendant No.1 (Cha) in the suit. In the W.S. (Annexure-2) filed by the
defendant No.1 (Cha), Sukumar Das stated that he sold away his share of the
suit property to his elder brother Shantimay Das through the Registered Deed
No.7203, dated 7.7.1983 and accordingly this defendant clarified that he has no
claim on the suit property.
4. The suit came to be dismissed on 23.6.2004 by the learned Asstt. District
Judge, Karimganj and the RFA No.118/2004 was then filed in the High Court by
the plaintiff Santosh Kumar Das. It may be noted that the other plaintiff
Sushanta Kumar Das did not challenge the suit dismissal order. Because of the
change of the pecuniary jurisdiction, the case was transferred from the High
Court to the Court of the learned District Judge, Karimganj, where the Appeal
was renumbered as the T.A. No.19/2006.
5. Before the Appellate Court, the substituted legal heirs of the defendant
Shantimay Das, through their application dated 8.2.2007 (Annexure-3), prayed
for abatement of the Appeal against the defendant No.1 (Cha) Sukumar Das,
who died on 15.12.2004 because the deceased’s daughter Sukanya Das was
never substituted. It was stated in this application that the appellant Santosh
Kumar Das attended the cremation ground on 15.12.2004 at Karimganj and was
also present at the Shradha ceremony of Late Sukumar Das. But even then he
didn’t substitute the daughter of the deceased and accordingly prayer was made
for abatement of the Appeal in so far as the deceased Sukumar Das was
concerned.CRP No.403/2007 Page 3 of 4
6. Through the impugned order dated 4.8.2007 (Annexure-6), the learned
District Judge considered the application of the respondents (defendants) and
noted that despite being aware of the death of Sukumar Das on 15.12.2004, his
legal heir was not substituted by the appellant. On this basis, the entire Appeal
was declared to have abated through the impugned order dated 4.8.2007
(Annexure-6).
7. Assailing the legality of the order of abatement of the entire Appeal, Mr.
MH Ahmed, learned counsel reads Order 22, Rule 1 of the C.P.C. to contend that
the right to sue survives against the other respondents (defendants) and
therefore on the death of one defendant Sukumar Das, the entire Appeal can’t
abate in law.
8. On the other hand, Mr. D. Chakrabarty, the learned counsel appearing for
the respondents (defendants) submits that in view of the stand of the deceased
defendant Sukumar Das, nothing survives to be decided in the Appeal and
therefore he argues that the District Court correctly held the entire Appeal to
have abated.
9. In PPK Gopalan Nambiar vs. PPK Balakrishnan Nambiar reported in AIR
1995 SC 1852, the Apex Court held that when the deceased had sold off their
respective share in favour of other respondents, by operation of Order 22, Rule
10 of the C.P.C., the proceeding can be continued against the person upon
whom the interest has been transferred.
10. In this case, the deceased Sukumar Das during his lifetime sold away his
share in favour of co-defendant Late Shantimay Das. Therefore when the
successors of the co-defendant are already arrayed in the Appellate proceeding,
the right to sue survives against the transferee, under Order 22, Rule 1 of the
C.P.C.
11. Because of the stand taken by the deceased defendant Sukumar Das in
his W.S., the relief could be claimed only against the co-defendant (Shantimay
Das) to whom, the defendant No.1 (Cha) Sukumar Das sold away his share of
the family property. Therefore the right to sue survives against the co-defendant
and consequently the Appellate Court shouldn’t have declared the Appeal to have
abated for the death of Sukumar Das, who during his lifetime, transferred his
right to the family property to Shantimay Das, whose successors are contesting
the plaintiff’s
12. When we look at the ratio of the decision in PPK Gopalan Nambiar
(Supra), it is clear that the Appeal proceeding survives against the co-defendant.
That apart in Kanhaiyalal vs. Rameshwar reported in (1983) 2 SCC 260, the Apex
Court held that presence of the deceased or his successor was unnecessary as no
relief is claimed against this party. Therefore at best there can only be limited
abatement of the pending proceeding. From this it is clear that the abatement of
the entire Appeal couldn’t have been ordered since the right to sue survives
against the co-defendant. Because of this reasoning I hold that the impugned
decision suffers from a jurisdictional error and accordingly the same is quashed.
The Appeal however stands abated against the deceased Sukumar Das, whose
legal heirs were not substituted by the appellant. Under the circumstances the
T.A. No.19/2006 will have to be decided on merit, amongst the surviving parties
and it is ordered accordingly.
13. To facilitate the Appellate Court to proceed further, the learned counsel
Mr. M.H. Ahmed and Mr. D. Chakrabarty for the contesting sides have assured
that their respective client(s) will voluntarily appear before the Court on
27.4.2015 and therefore the District Court need not issue any notice for their
appearance. The Registry should return back the LCRs alongwith a copy of this
order to the Court of the learned District Judge, Karimganj.
JUDGE
Barman.
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