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PETITIONER: CUSTODIAN OF BRANCHES OF BANCO NATIONALULTRAMARINO.

       Vs.

RESPONDENT: NALINI BAI NAIQUE

DATE OF JUDGMENT28/04/1989

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) SAIKIA, K.N. (J)

CITATION:  1989 AIR 1589            1989 SCR  (2) 810  1989 SCC  Supl.  (2) 275 JT 1989  Supl.    159  1989 SCALE  (1)1410

ACT:     Portugees  Law of Inheritance in Goa-Holder of  ’Meeira’ rights-Whether  legal heir--Whether competent to be  substi- tuted as a party under the Code of Civil Procedure.     Code  of Civil Procedure, Order XXII, Rule 4: Holder  of ’Meeira’    rights    under    the    Portugees    Law    of Inheritance--Whether   a   ’legal   representative’--Whether represents  the  entire estate--Other heirs not  brought  on record within time--Suit whether abates.     ’Legal  representative’--Connotation of--Code  of  Civil Procedure. 1908, O.22. R. 4.

HEADNOTE:     The  appellant bank instituted a suit  against  respond- ent’s  husband  for recovery of a large amount  advanced  as loan.  The defendant contested the suit. issues were  flamed and  evidence was being recorded. He, however,  died  before the  next hearing on 4th November, 1970 when the  court  was informed by his pleader orally about his demise. The  appel- lant  on inquiry learnt on 7th November that  the  defendant had  died on 4th August. The 8th November being  Sunday,  an application under Order XXII Rule 4 of CPC was filed on  9th November  for  bringing  on record the widow  as  his  legal representative.  Another application for condoning delay  in making  the application was also made. The  appellant  later made  another  application requesting to  treat  the  latter application  as an application under Order XXII Rule  9  for setting aside the abatement of the suit. These  applications were contested by the respondent on the ground that the news regarding the death of her husband had been published in the local  newspapers  and the plaintiffs had knowledge  of  his death,  and that the suit had abated as no  application  for setting aside abatement had been filed within time.     In the meanwhile, the appellant made another application for  adding the names of four sons and two daughters of  the deceased  defendant  on the ground that earlier  it  had  no knowledge  about that. On behalf of the respondent,  it  was asserted that the application for 811 substitution  was  not maintainable as it was  filed  beyond time,  and in the alternative she was not the legal heir  of

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the  deceased defendant but only his "Meeira" and  as  other legal  heirs of the deceased defendant were not  brought  on record within time the application was not maintainable.     The  trial court found that the application under  Order XXII  Rule 4 was not barred by time since it had been  filed within four days of coming to know of defendant’s death.  It further  held that since the widow, one of the legal  repre- sentatives of the deceased-defendant, was brought on  record within  time the sons and daughters could also be  impleaded as  defendants along with her. It, therefore, set aside  the abatement of the suit.     The  Judicial Commissioner, however, took the view  that the widow was not a legal representative of the deceased  as under  the Portugees Law she had acquired Meeira rights  and her  status was not that of ’Cabeca De Casal’ (Head  of  the family  and  administrator) of the other heirs  of  the  de- ceased.  Since all the heirs of the deceased  defendant  had not been brought on record alongwith the widow within  time, the  suit  had abated as she alone could not  represent  the estate of the deceased defendant. Allowing the appeals,     HELD:  1.1 The trial court committed no error in law  in allowing the substitution application. [815EF]     1.2 A ’legal representative’ as defined in Civil  Proce- dure Code means a person who in law represents the estate of a deceased person, and includes any person who  intermeddles with the estate of the deceased and where a party sues or is sued  in  representative character the person  on  whom  the estate devolves on the death of the party so suing or  sued. The  definition is inclusive in character and its  scope  is wide,  it  is not confined to legal heirs  only  instead  it stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the estate of the deceased person. It includes heirs as well as  persons  who  represent the estate  even  without  rifle either  as executors or administrators in possession of  the estate of the deceased. All such persons would be covered by the  expression  ’legal representative’. If  there  are  any heirs,  those in possession bona fide, without  there  being any  fraud or collusion, are also entitled to represent  the estate  of  the deceased. The Civil Procedure Code  was  ap- plicable to the proceedings in the instant case. [814G-815A] 812     1.3  The respondent had acquired ’Meeira’  rights  under the  Portugees Law of Inheritance, which was  applicable  to Goa  at  the relevant time, according to which she  had  ac- quired half share in the estate left by her husband and  the remaining half share was inherited by sons and daughters  of the deceased. As she was brought on record within time,  she represented  the  estate of the deceased defendant  and  the suit could proceed on merits. The impleadment of other legal representatives  at  a  subsequent stage  could  not  affect validity of the proceedings. [815B, 816C]     Daya  Ram & Ors. v. Shyam Sundari, [1965] 1 SCR 231  and N.K.  Mohd. Sulaiman v. N.C. Mohd. Ismail, [1966]  1  S.C.R. 937, referred to.     Mannem  Venkataramaih  v. M. Munnemma & Ors.,  AIR  1963 A.P. 406, approved.

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1154-1155 (N) of 1974.     From the Judgment and Order dated 30.6.1972 of the Court

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of  Judicial  Commissioner of Goa, Daman and  Diu  in  Civil Revision Application Nos. 13 and 14 of 1972. Anil Dev Singh and Miss A. Subhashini for the Appellant. S.K. Mehta and Dhruv Mehta for the Respondent. The Judgment of the Court was delivered by     SINGH,  J. This appeal is directed against the  judgment and order of the Judicial Commissioner, Goa dated  30.6.1972 setting aside the order of the Civil Judge, Senior Division, Panaji and declaring that the suit instituted by the  appel- lant had abated.     The  appellant Bank instituted a suit before  the  Civil Judge  for recovery of an amount of Rs. 63,315  against  Vi- naique  Naique,  advanced  to him as loan  by  it.  Vinaique Naique, the defendant contested the suit, issues were framed and evidence was being recorded. On 26.2. 1970 statement  of PW-I was recorded and the case was adjourned to another date but  on that date also the case was adjourned to  23.7.1970. The  suit  was again adjourned on 23.7. 1970 on  the  ground that the defendant Vinaique Naique was indisposed and 813 was  hospitalised.  Thereafter, the suit was  taken  up  for hearing on 4.11. 1970. On that date the defendant’s  pleader informed  the  Court orally that the defendant had  died  at Margaon but did not give any further details. The  Custodian of the appellant Bank Panaji deputed his clerk to Margaon to collect  necessary information and to obtain death  certifi- cate from the Civil Registration Office if the defendant was found  to be dead. The clerk visited Margaon on 5th and  6th November,  1970  and  on enquiry he came to  know  that  the defendant  had died on 4.8.1970, he obtained death  certifi- cate  from  the Civil Registration Office on  6.11.1970  and handed  over  the same to the Custodian of the Bank  on  7th November,  1970.  Since 8th November, 1970 was  Sunday,  the Custodian  could not file the same in the court. The  appel- lant made application under Order XXII Rule 4 of CPC on  9th November, 1970 for bringing on record Smt. Nalini Bai Naique as the legal representative of the deceased original defend- ant.  He  made another application for  condoning  delay  in making  the  application duly supported  by  affidavit.  The appellant  made another application requesting the court  to treat his earlier application made for condonation of  delay as  an application under Order 22 Rule 9 for  setting  aside the  abatement  of  the suit. Smt. Nalini  Bai  Naique  late defendant’s  widow contested the applications on the  ground that  the  news regarding the death of Vinaique  Naique  had been published in the local newspapers and the plaintiff had knowledge  of his death and further the suit had  abated  on the  expiry  period of 30/60 days of the death  of  original defendant-as no application for setting aside abatement  had been filed within time. Meanwhile the appellant made another application for adding the names of six heirs four sons, one major  son and three minor sons and two minor  daughters  of the  deceased defendant Vinaique Naique on the  ground  that earlier  the appellant had no knowledge about the  sons  and daughters  of  the  deceased defendant. On  behalf  of  Mrs. Nalini Bai it was vehemently asserted before the trial court that  the application for substitution was not  maintainable as it was filed beyond time, and in the alternative she  was not  the  legal heir of the deceased defendant but  she  was only  his ’Meeira’ and as other legal heirs of the  deceased defendant were not brought on record within time the  appli- cation  for  bringing the sons and daughters on  record  was liable  to  be  rejected. The trial Judge  on  an  elaborate consideration of the rival contentions held that even though the  news  relating to the death of original  defendant  Vi-

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naique  Naique had been reported in local newspapers but  in view  of  the affidavit of Custodian and other  material  on record  the appellant Bank came to know of the death of  the defendant only on 4. ] 1. 1970 from the deceased defendant’s lawyer in the court and within four days thereof application for 814 bringing the legal representative of the deceased  defendant was  made, therefore, the application made under Order  XXII Rule  4  was not barred by time. The learned  Judge  further held  that  since Smt. Nalini Bai Naique one  of  the  legal representative  of  the deceased defendant  was  brought  on record  within  time, the sons and daughters could  also  be impleaded  as defendants along with her. On  these  findings the  learned Judge by his order dated 16.11. 1971 set  aside the abatement of the suit and directed for substituting  the name of the widow Smt. Nalini Bai Naique along with the name of four sons and two daughters as defendants to the suit  in place of deceased defendant Vinaique Naique. Mrs. Nalini Bai filed  a revision application under Section 115 of  Code  of Civil  Procedure before the Judicial Commissioner of Goa  at Panaji  against the aforesaid order of the trial Judge.  The Judicial Commissioner by his order dated 30.6.1972 set aside the  order of the trial Judge and declared the suit to  have abated.  Aggrieved  the plaintiff Bank  has  preferred  this appeal after obtaining special leave.     The  learned Judicial Commissioner interfered  with  the order of the trial Judge on the sole ground that Mrs. Nalini Bai whose name was proposed to be brought on record was  not legal  representative  of the deceased  Vinaique  Naique  as under  the  Portugees Law she being the widow  had  acquired Meeira  rights  and her status was not that  of  "Cabeca  De Casal"  (Head of the family and administrator) of the  other heirs  of deceased Vinaique Naique. Since all the  heirs  of the deceased defendant had not been brought on record  along with  Mrs.  Nalini Bai within time the suit abated  as  Mrs. Nalini  Bai  alone  could not represent the  estate  of  the deceased  defendant. The learned Judicial  Commissioner  did not  interfere  with other findings recorded  by  the  trial Judge, instead he set aside the order of the trial Judge  on the sole ground as aforesaid, and declared the suit to  have abated.     After hearing learned counsel for the parties, we are of opinion  that  the learned Judicial  Commissioner  committed serious error of law in setting aside the order of the trial Judge. "Legal representative" as defined in Civil  Procedure Code  which was admittedly applicable to the proceedings  in the suit, means a person who in law represents the estate of a deceased person, and includes any person who  intermeddles with the estate of the deceased and where a party sues or is sued  in a representative character the person on  whom  the estate devolves on the death of the party so suing or  sued. The  definition is inclusive in character and its  scope  is wide,  it  is not confined to legal heirs  only  instead  it stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the 815 estate of the deceased person. It includes heirs as well  as persons  who represent the estate even without title  either as  executors or administrators in possession of the  estate of  the deceased. All such persons would be covered  by  the expression "legal representative". If there are many  heirs, those in possession bona fide, without there being any fraud or  collusion, are also entitled to represent the estate  of

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the  deceased. In the instant case it is not  disputed  that under the Portugees Law of Inheritance which was  applicable to  Goa  at the relevant time Mrs. Nalini Bai  had  acquired "Meeira  rights"  according to which she had  acquired  half share in the estate left by the deceased Vinaique Naique and the remaining half share was inherited by sons and daughters of the deceased who were subsequently brought on record.  On the admitted facts Mrs. Nalini Bai therefore represented the estate  of  the deceased Vinaique Naique. Once the  name  of Mrs.  Nalini Bai was brought on record within time  and  the application  for setting aside abatement was allowed by  the trial  Judge, the suit could proceed on merits and the  mere fact  that the remaining legal representatives were  brought on  record at a subsequent stage could not render  the  suit defective. The Custodian of the appellant Bank had no knowl- edge that there were other legal representatives of deceased defendant along with Mrs. Nalini Bai. He had filed affidavit that  on making diligent and bona fide inquiry, he had  come to  know that Nalini Bai was the sole  legal  representative but  later  on he acquired knowledge that the  deceased  had left  four sons and two daughters as legal  representatives, along  with  Mrs.  Nalini Bai, therefore,  he  made  another application  for  bringing them on record. The  trial  Judge accepted  the testimony of the Custodian, and placing  reli- ance on the decision of Andhra Pradesh High Court in  Mannem Venkataramaih  v. M. Munnemma & Ors., AIR 1963 A.P.  406  he allowed  the substitution application. The trial court  com- mitted  no error in law, instead he applied correct  princi- ples of law.     In  Daya Ram & Ors. v. Shyam Sundari, [1965] 1  SCR  231 this Court recognised the principle of representation of the estate  by some heirs, where the defendant died  during  the pendency  of the suit to enforce claim against him  and  all the heirs are not brought on record within time. This  Court held that if after bona fide inquiry, some, but not all  the heirs,  of a deceased defendant, are brought on  record  the heirs  so brought on record represent the entire  estate  of the deceased and the decision of the Court in the absence of fraud  or collusion binds even those who are not brought  on record as well as those who are impleaded as legal represen- tatives of the deceased defendant. In N.K. Mohd. Sulaiman v. N.C. Mohd. Ismail, [1966] 1 SCR 937 this Court 816 rejected the contention that in a suit to enforce a mortgage instituted after the death of a Muslim, if all the heirs  of the deceased were not impleaded in the suit and a decree was obtained,  and in execution the property was sold, the  auc- tion  purchaser could have title only to the extent  of  the interest of the heirs who were impleaded, and he could  have no  title  to the interest of those heirs who had  not  been impleaded  to the suit. The Court held, that those who  were impleaded  as  party to the suit in place  of  the  deceased defendant represented the entire estate as they had share in the  property and since they had been brought on record  the decree was binding on the entire estate     In the instant case Mrs. Nalini Bai had admittedly  hall share in the property left by the deceased defendant and  as she  was brought on record within time, she represented  the estate of the deceased defendant and the suit could  proceed on merit. In this view the impleadment of other legal repre- sentatives  at a subsequent stage could not affect  validity of  the proceedings. In the result we allow the  appeal  and set aside the judgment and order of the Judicial Commission- er  dated  30.6.1972,  and restore the order  of  the  trial Judge.  Since trial of the suit has been delayed, we  direct

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the  trial  court to make every effort to  decide  the  suit expeditiously.  The  appellant  is  entitled  to  its  costs throughout. P.S.S.                                    Appeal allowed. 817