9911796707
Advanced Search 
TMI Blog1956 (1) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... present appeals arise, was originally instituted by Mr. M. Nunawati on 27-1-45 as plaintiff No. 1 for recovery of possession of the disputed properties, of which the last male-holder was Awadh Behari Singh, who died in Chait 1349 Ps., corresponding to the year 1942. The plaintiffs' case was that Awadh Behari, her brother, died issueless, and she was his sole surviving sister, out of his four sisters, she impleaded Mahinder Singh, the present plaintiff No. 1 and appellant No. 1, in both the appeals, as defendant 7, on the allegation that he was the only son of Ramwati Kuer, another predeceased sister of Awadh Behari. Original plaintiffs 2 and 3 were transferees from Musst. Nunawati, but they having died during the pendency of the suit were substituted by their heirs, the present plaintiffs 2 and 3. Defendant 3 was" son & defendant 4 grandson of Mt. Sonawati, one of the sisters of Awadh Behari, who was married to Ramasray Singh. The plaintiffs admitted that Sonawati was one of the sisters of Awadh Behari and was married to Ramasray Singh, but they alleged that she died shortly after her marriage, and thereafter Ramasray married another lady, and begot on her defendant 3, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other defendants. This appeal was allowed by the learned Subordinate Judge, and he directed that the plaintiffs and defendant 5 should bear their own costs of the trial Court. The other appeal was Title Appeal 91 of 1948, preferred by the defendants 1st party. This appeal was also allowed by him, and the plaintiffs' suit was dismissed in toto as not maintainable. 7. The lower appellate Court, in agreement with the first Court, found that Mt. Nunawati, the original plaintiff No. 1, was not the sister of Awadh Behari, and that Mahinder Singh, original defendant 7, was the sister's son of Awadh Behari. It, however, in disagreement with the learned Munsif, found that Mt. Sonawati, the sister of Awadh Behari, who was married to Ramasray Singh,, gave birth to two sons, namely, Harekishun, father of defendant 4, and Ramjanam, defendant 3, and as such half of the inheritance of Awadh Behari devolved upon defendant 3, and the other half on Mahinder Singh, original defendant 7, and present plaintiff 1. It however found that Maninder Singh, although sister's son of Awadh Behari, had no right to continue the suit, after the death of Mt. Nunawati, and, therefore, the plaintiffs&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these reasons are sufficient and sound, the appellate Court will not interfere with his order. Such a discretion should only be interfered with in appeal if the trial Court had exercised its discretion improperly. 11. The usual rule, as given in Section 35(2), Civil P. C., is that "the costs shall follow the event", which means that the party who on the whole succeeds in the action, gets the general costs of the action, but where the action involves separate issues whether arising under different causes of action, or under one cause of action, the word "event" should be read distributively, and the costs of any particular issue should go to the party who succeeds upon it. An issue, in this sense, need not go to the, whole cause of action, but Includes any issue which has a direct and definite event in defeating the claim to judgment in whole or in part. Such discretion must be a judicial discretion, to be exercised on legal principles, not by chance, medley, nor by caprice, nor in temper. It must be exercised on fixed principles, that is, according to the rules of reason and justice, not according to private opinion, or benevolence, or even sympathy (see Mulla& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the present case the learned Subordinate Judge, in my opinion, correctly stated the principle when he said : "It is a settled principle of law that ordinarily costs should abide the result. It is also well settled that the order for costs passed by the trial Court should not be interfered with unless it involves some injustice to the party aggrieved." 15. The learned Subordinate Judge considered all the aspects of the case, and found that the learned Munsif was not justified in saddling defendant 5 with cost even when a major portion of the property claimed by him had been allowed and his defence accepted in respect thereof; and therefore, he was of the opinion that a matter of principle was involved, and as such he was entitled to interfere with the order of the first Court regarding costs. The learned Subordinate Judge, therefore, directed that the plaintiffs and defendant 5 should bear, their own costs of the trial Court , as well as of the appeal before him. It cannot, therefore, be said that the appeal before the learned Subordinate Judge, did not involve any question of principle, or that he was not aware of the principles, which should guide a Court of appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants before the lower appellate Court. No doubt their omission to challenge the maintainability of the appeal before the Court of appeal below would not bar their present appeal, or prevent them from challenging the order of the Court of appeal below in the present appeal; but, in my opinion, this question of Incompetency of the appeal before the first appellate Court should have been agitated before it so that this court might have got the benefit of the view of that Court. However, the discretion exercised by the lower appellate Court seems to me to be more sound than that Of the trial Court, and as such I decline to interfere with the discretion exercised by the lower appellate Court in the matter of costs. 19. In the result, this appeal fails, and is dismissed; but, to the circumstances of the case, there will be no order for costs. 20. As regards S. A. 771 of 1950, theory point, which has been canvassed before me by Mr. Kameshwar Dayal, appearing for the plaintiffs-appellants, is that the Court of appeal below has wrongly non-suited the plaintiffs, and dismissed their, suit. In order to appreciate this point, it is necessary to state a few more facts. During the pendency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cases cited by them in support of their respective contentions. 21. Mr. Kameshwar Dayal's contentions are two-fold : (i) that Mahinder Singh was already a party to the suit as defendant 7, and, therefore, he could be transposed as co-plaintiff to continue the suit of the deceased plaintiff, Mt. Nunawati, and as such there is no question of abatement of the suit after the death of Mt. Nunawati and (ii) that the suit brought by Mt. Nunawati must be considered to be a representative suit, inasmuch, as the other legal heirs of Awadh Behari, namely, the sons of his deceased sisters, were already parties to the suit as defendants 3 and 7, and, therefore, there is no question of abatement in such a suit. 22. In support of his first contention, Mr. Dayal relies on Bhupendra Narayan Sinha v. Rajeswar Prasad. AIR 1931 PC 162: 58 Ind App 228 (H), in which their Lordships of the Privy Council held that the course of adding pro forma defendants as co-plaintiffs should always be adopted where it to necessary for, 4 complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings. In this case all the necessary persons were parties to the suit, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comes essential to examine first the scheme of the Code of Civil Procedure, regarding death of a party to a suit, and its effect on it, and when it abates, and when it can be continued. 24. Order 22 of the Code of Civil Procedure deals with, inter alia, "death of parties". The law of abatement, as stated in the Civil Procedure Code, and elucidated in the illustrations to Order 22, Rule 1, given in Mulla's C. P. Code, 12th edition, is found on the maxim 'actio personalis moritur cum persona'. The above illustrations to Order 22, Rule 1, as also the provisions of the next following rules of Order 22, show what the right to sue is, and in whom it vests. Rule 1 of Order 22 provides that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Rule 2 of Order 22 deals with the procedure where one of several plaintiffs or defendants dies and the right to sue survives. Rule 3 of the same order deals with the procedure in case of death of one of several plaintiffs or of sole plaintiff. Similarly, Rule 4 deals with the procedure in case of death of one of several defendants or of sole defendant, Order 23, Rule 3, has there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o other defence against him other than what he could have raised against the deceased plaintiff Vide Sham Chand Girl v. Bhayaram Pandey ILR 22 Cal 92 (K); Subbaraya Mudali v. Manjkka Mudali ILR 19 Mad 345 (L) ; Mahomed Naina Maracair v. Ummanaikani Animal AIR 1930 Mad 693 (M) ; Gulzar Shah v. Sardar Ali Shah ILR 12 Lah 1: AIR 1930 Lah 703 (2) (N), followed ILR 22 Cal 92 (K) and Ramsarup Das v. Rameshwar Das ILR 28 Pat 989: AIR 1950 Pat 184 (O). 27. The general rule is that all rights of action and all demands whatsoever existing in favour of or against a person at the time of his death survive to and against his representative, but rights intimately connected with the individuality of the deceased will not survive. One aspect of this exception is expressed by the maxim "actio personalis moritur cum persona", that is, "a personal right of action dies with the person", as just mentioned. In cases of personal actions, that is, any actions where the relief sought is personal to the deceased, the "right to sue" will not survive to his representative. 28. A suit by or against a reversioner in respect of the estate of a Hindu widow, however, is one brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility, or spes successionis. But this possibility is common to them all, for it cannot be, predicated who would be the nearest reversioner at the time of her death." Later on, while considering Articles 118 and 125 of the Limitation Act, in this connection, his Lordship said: "But it does not follow from these words that the suit brought in the latter case by the nearest reversioner is for his personal benefit, for the object is to remove a common apprehended injury to the interests of all the reversioners, presumptive and contingent alike. Of course, the two classes of suits covered by these two articles are distinct in their scope and character; one relates to status and involves the adjudication of a right in rem; the other raises a question of mere justifiable necessity. But in both 'the right to sue' is based on the danger to the inheritance common to all the reversioners which arises from the nature of their rights." Further on, while considering whether the "right to sue" survives, his Lordship observed: "There is nothing to preclude a remote reversioner from joining or asking to be joined In the action brought by the presumptive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to make any declaration of right upon that subject such a declaration would be subject to being rendered valueless by the development of events. It would not, after events had developed, be even of authority in regulating or declaring the rights of the present respondents as against any other claimant to the character of reversionary heir. A priori, accordingly, a declaration of right granted at the present stage would appear to be stamped with -- something in the nature of futility". "It is also true that a reversionary heir, although having only those contingent Interests which are differentiated little, if at all from a spes successionis , is recognised by Courts of law as having a right to demand that the estate be kept free from waste and free from danger during its. enjoyment by the widow or other owner for life." "But a reversionary heir thus appealing to the Court truly for the conservation and just administration of the property does so in a representative capacity, so that the corpus of the estate may pass unimpaired to those entitled to the reversion." His Lordship, further on, with regard to the declaration granted to the plaintiff by, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Court of Appeal, who decided the case of Philips v. Homfray (1883) 24 Ch D 439 (U): "In such cases, whatever the original form of action, it is in substance brought to recover property, or its proceeds or value, and by amendment could be made such in form as well as in substance. In such cases the action, though arising out of a wrongful act, does not die with the person. The property or the proceeds or value which, in the lifetime of the wrong-doer, could have been recovered, from him, can be traced after his death to his assets, and recaptured by the rightful owner there. But it is not every wrongful act by which a wrongdoer indirectly benefits that falls under this head, if the benefit does not consist in the acquisition of property, or its proceeds or value." In laying down the above principles, their Lordships have considered the application of the common law rule of actio personalis moritur cum persona. In my opinion, the answer to the question raised before me depends upon the nature of the suit. If the plaintiff is suing to establish his right to a certain property in his own rights, and not by virtue of his office, certainly the cause of action for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lder of the estate are parties to the suit. But in a case like the present, where the suit is brought by an utter stranger, who is not even a relation, much less a reversioner of the last holder of the estate, it cannot be said to be a representative suit so as to allow the admitted reversioner to continue the suit. In Jadubansi Kuer v. Mahpalsingh AIR 1916 All 34 : ILR 38 All 111 (V) a suit was brought for recovery of possession by a Hindu woman in possession of a certain estate. It was held that a Hindu, woman in possession of an estate as such represents the estate and a suit brought by her .to recover possession of the estate can be continued on her death pending the suit by a person entitled to succeed to the estate after her. In this case an argument was advanced that if the original plaintiff's allegations be true, she was entitled to possession of the property claimed for a Hindu woman's estate. On her death her married sisters (surviving her) would take jointly. On behalf of the respondents it was contended that the claim of the original plaintiff was one personal to her, end that her sisters would not take as her heirs but as the persons entitled next after her, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tative of Mt. Nunawati, and, therefore, he cannot be allowed to be substituted in her place, and to continue the suit. His reasoning for contending that the amendment could not be allowed is, that Mahinder claimed to be the son of a predeceased sister of Awadh Behari, and not of the original plaintiff, Mt. Nunawati, and as such his claim in reality put him in opposition to the original plaintiffs, and, therefore, Mahinder was in the position of a rival claimant, who was desirous of setting up a claim of his own, which was not dependent upon the claim of the original plaintiff, but was in conflict therewith. In this connection he has relied on a single Judge decision of the Madras High Court in Inaganti Venkatrama Rao v. Venkatalingama Nayanim Bahadur Varu AIR 2922 Mad 49 (W). In this case an application was made by the legal representative of the deceased plaintiff to amend the plaint as originally filed. The amendment sought was virtually a denial that a certain transaction, which was the basis of the suit, was binding on him. In this connection, in .setting aside the order allowing the amendment, his Lordship observed as follows: "I am of opinion that the Subordinate Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars from its order Nos. 31 and 32 dated 20-9-46 did not record any reason for overruling the objections of the defendants and for allowing the substitution and amendment of the plaint as prayed for. This substitution and amendment matter was attacked before the court of appeal below, and it rightly upheld the objection of the defendants respondents that their omission to get the order of the first court vacated did not prevent them from agitating it in the appeal before the first appellate Court. The court of appeal below having held that the right to sue did not survive, and that, therefore, Mahinder had no right to continue the suit, non-suited him, and dismissed his suit, in my opinion, it was not open to Mahindar to assert his individual and hostile rights, which he may have against the deceased plaintiff and those claiming through or under her, and to seek to enforce those individual and paramount rights under the guise of an application to amend the plaint. The limits to the amendment should have been determined by the consideration whether it would have been granted if the deceased had, made the application. It is obvious that it could not have been allowed, because it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
