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PETITIONER: RIKHU DEV, CHELA BAWA HARJUG DASS

       Vs.

RESPONDENT: SOM DASS (DECEASED) THROUGH HIS CHELA SHIAMDASS

DATE OF JUDGMENT28/08/1975

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN RAY, A.N. (CJ) CHANDRACHUD, Y.V.

CITATION:  1975 AIR 2159            1976 SCR  (1) 487  1976 SCC  (1) 103

ACT:      Code of  Civil Procedure (Act 5 of 1908) O. 22 rr. 3, 4 and 10-Suit  by de  jure Mahant  against de facto Mahant for possession and management-Death of defendant and election of another Mahant during pendency of appeal-If appeal abates.

HEADNOTE:      The appellant  filed the  suit on the basis that as the Mahant  of   a  Dera  he  was  entitled  to  possession  and management  of  the  properties  of  its  branch  Dera.  The defendant contended that it was an independent Dera and that he was  in possession  of the  properties  as  its  lawfully appointed Mahant.  The trial  court decreed  the suit but in appeal the  decree was  reversed. While  the second  appeal, preferred by  the appellant,  was pending in the High Court, the defendant  died.  As  the  application  to  implead  the elected successor  of the  defendant was  filed  beyond  the period prescribed  for an application under O. 23, rr. 3 and 4, the  High Court  held that the appeal had abated and that there was  no ground  for setting  aside the  abatement.  In appeal to  this Court,  the appellant contended that even if the Chela,  who had  been elected as the Mahant on the death of the  defendant,  was  not  impleaded  within  the  period prescribed,  there   would  be   no  abatement,  because  he represented the Dera.      Allowing the appeal to this Court, ^      HELD: (1) When a suit is brought by or against a person in a  representative capacity  and there  is a devolution of the interest  of the representative, the rule that has to be applied is  O. 22,  r. 10 and not O. 22, rr. 3 or 4, whether the devolution  takes place as a consequence of death or for any other  reason. The  word ’interest’  in the  rule  means interest in  the property,  i.e., the  subject matter of the suit, and the interest is the interest of the person who was the party  to the  suit. This rule is based on the principle that the  trial of a suit cannot be brought to an end merely because the interest of a party in the subject-matter of the suit has  devolved upon  another during  the pendency of the suit. The suit may be continued against the person acquiring the interest with the leave of the Court. [489F-G]

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    In the  present case,  when  the  defendant  died,  the interest which  was the  subject-matter of the suit devolved upon his  successor elected  as the  Mahant of the Dera, and therefore, the  appeal could be continued under O. 22 r. 10, C.P.C. [489B-C]      (2) Though  it  was  uncertain  on  the  death  of  the defendant as  to who would become the Mahant by election, it would not  make any difference for the application of O. 22, r. 10.  The devolution of the interest in the subject matter of the  suit took place when the new Mahant was elected. The suit was  for possession  and management of the Dera and the properties appertaining to it by the appellant purporting to be the  de jure  Mahant against  the defendant as a de facto Mahant. The  subject matter  of the suit was the interest of the defendant in the Dera and its properties and it devolved upon the  new Mahant by virtue of his election subsequent to the death  of the  defendant. As  it was in a representative capacity that  he defendant  was sued and that it was in the same representative  capacity that  the appeal was sought to be continued  against the  new Mahant,  O. 23,  r.  10  will apply. [490B-E]      Rajnam Pillai  v. Natraja  Desikar A.I.R.  1924  Madras 615, Thirumalai  v. Arunachella,  A.I.R. 1926 Madras 540 and Roshan  Lal   v.  Kapur  Chand,  A.I.R.  1960  Punjab,  382, approved.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 159 of 1974.      From the  Judgment and  Order  dated  4-4-1973  of  the Punjab and  Haryana High  Court at  Chandigarh in R.S.A. No. 1482 of 1961. 488      N. N. Goswamy and Arvind Minocha, for the appellant.      Kapil Sibbal and D. Probir Mitra, for respondents.      The Judgment of the Court was delivered by      MATHEW, J.-This is an appeal by special leave against a decree passed  by the  High  Court  of  Punjab  and  Haryana holding that the appeal filed by the plaintiff-appellant has abated and dismissing his suit.      The appellant  brought the  suit on the allegation that there was one Shiromani Nirankari Dera at Patiala, that this institution had  two-branches-one at  Landeke in Moga Tehsil and the other at Nanga Kheri in the erstwhile Patiala State, and that  he, as  mahant-in-charge of  the Shiromani Dera at Patiala had  the right  to manage the properties attached to the Dera  at Landeke.  The prayer  in  the  plaint  was  for recovery of  possession  of  the  Dera  and  the  properties attached to it.      Som Dass,  the defendant,  contended that  the Dera  at Landeke  was   an  independent  Dera  and  that  he  was  in possession of  the properties  of the  Dera as  its lawfully appointed mahant.      The trial  court decreed  the suit.  In appeal  by  the defendant the  decree was  reversed. Against that decree, an appeal was  preferred by  the appellant  to the  High Court. While the  appeal was  pending in  the High Court, Som Dass, the defendant,  died on  13-10-1970. No application was made by  the   appellant   to   bring   on   record   his   legal representatives within the period prescribed. An application was made  on 1-2-1971 by the appellant stating that Som Dass died on  26-11-1970 leaving  behind him  Shiam Dass  as  his Chela and for impleading him. The correctness of the date of

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death of  Som Dass  was contested  by Shiam  Dass. The  High Court referred  the question  to the trial Court for enquiry and decision.  The trial Court, after taking evidence, found that Som  Dass died  on 13-10-1970. Thereafter the appellant prayed before the High Court that his application dated 1-2- 1971 might  be treated  as an  application for setting aside the abatement of the appeal and the ground for setting aside the abatement  was that the appellant did not know about the death of  Som Dass at the time he died. The High Court found no substance in the plea that the appellant had no knowledge about the  date of  the death  of Som Dass and held that the appeal had  abated and  that there was no ground for setting aside the abatement.      The appellant  had  raised  an  alternative  contention before the  High Court  that there  was no  abatement of the appeal even  if Som Dass was not impleaded within the period prescribed as  he claimed  to represent the dera as its duly elected Chela.  The High  Court held that after the death of Som Dass,  Shiam Dass, as his Chela "inherited the sum-total of the  rights which  earlier vested  in Som Dass and when a controversy is  raised about such rights, then the appellant was bound  to bring  on record  the legal representatives of the deceased within the time prescribed by law." 489      We do  not think  that the  view of  the High Court was correct. The  suit was filed on the basis that the appellant as the  lawfully appointed mahant was entitled to manage the properties of  the Dera  at Landeke,  that the defendant was unlawfully claiming  to  be  the  mahant  of  the  Dera  and entitled to  manage the properties of the Dera, and that the appellant  was   entitled  to   be  in   possession  of  the properties.  As   already  stated   the  contention  of  the defendant was  that though  the properties  belonged to  the Dera, he  was its   lawfully  appointed mahant  and that the appellant had no right to recover possession of the property of the  Dera. When Som Dass died, the interest which was the subject matter  of the  suit, devolved  upon Shiam Das as he was elected  to be  the Mahant  of the  Dera and  the appeal could be  continued  under  Q.  22,  r.  10,  of  the  Civil Procedure Code against the person upon whom the interest had devolved.      Order 22, rule 10 reads:           "R.  10(1)   In  other  cases  of  an  assignment,      creation or  devolution  of  any  interest  during  the      pendency of  suit, the suit may, by leave of the Court,      be continued  by or  against the person to or upon whom      such interest has come or devolved.           (2) The  attachment of  a decree pending an appeal      there from  shall be deemed to be an interest entitling      the person  who procured such attachment to the benefit      of sub-rule (1)."      This rule  is based  on the  principle that  trial of a suit cannot be brought to an end merely because the interest of a  party in  the subject  matter of the suit has devolved upon another  during the  pendency of the suit but that suit may be  continued against  the person acquiring the interest with the  leave of  the Court.  When a suit is brought by or against a person in a representative capacity and there is a devolution of  the interest  of the representative, the rule that has  to be  applied is Order 22, rule 10 and not rule 3 or 4, whether the devolution takes place as a consequence of death or  for any  other reason.  Order 22,  rule 10, is not confined to  devolution of  interest of a party by death, it also applies  if the  head of  the mutt  or manager  of  the temple resigns his office or is removed from office. In such

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a case  the successor  to the  head of  the mutt  or to  the manager of  the temple  may be  substituted as a party under this rule.  The word  ’interest’ which  is mentioned in this rule means interest in the property i.e., the subject matter of the  suit and  the interest is the interest of the person who was the party to the suit.      It was,  however, contended on behalf of the respondent that there  was no devolution of the interest in the subject matter of the suit on the death of Som Dass, since there was no certainty as to the person who would be elected as mahant to succeed  him. The  argument was  that it was uncertain on the death  of Som  Dass as to who would become the mahant by election, that  it was  only when  a person succeeded to the mahantship on  the death  of a  previous mahant by virtue of law 490 or custom  that there would be devolution of interest in the subject matter  of the  suit and,  therefore, Order 22, rule 10, would  not  be  attracted.  We  see  no  force  in  this argument. We are of the view that devolution of the interest in the subject matter of the suit took place when Shiam Dass was elected  as mahant  of the  Dera after  the death of Som Dass.      Som Dass  was sued  in his  capacity as  a  person  who claimed (though  illegally according  to the  appellant)  as mahant of  the Dera. Som Dass contended that he was lawfully appointed as  mahant of  the Dera. He never set up any claim which was  adverse to  the Dera  or its properties. The suit against Som Dass was not in his personal capacity but in his capacity as  de facto  mahant. In  other words, the suit was for possession and management of the Dera and the properties appertaining to  it by the appellant purporting to be the de jure mahant  against Som  Dass as  de facto mahant. The fact that it  was after Som Dass died that Shiam Dass was elected to be  the mahant of the Dera can make no difference when we are dealing  with the  question whether  the interest in the subject matter  of the  suit devolved  upon him. The subject matter of  the suit was the interest of Som Dass in the Dera and its properties and it devolved upon shiam Dass by virtue of his  election as  mahant subsequent  to the  death of Som Dass. And,  as it  was in a representative capacity that Som Dass was  sued and  as it  was in  the  same  representative capacity that  the appeal was sought to be continued against Shiam Dass,  Order 22,  rule 10 will apply(1). In Thirumalai v. Arunachella  (2) the Court held that a succeeding trustee of a trustee who filed a suit and thereafter died during its pendency was  not legal representative of the predecessor in office. The  Court said  that where some of the trustees die or retire  during the pendency of a suit and new persons are elected to  fill their  place, it is a case of devolution of interest during  the pendency  of a  suit  and  the  elected persons can  be added  as parties  under Order  22, rule  10 notwithstanding that the period of limitation for impleading them had expired.      In Roshan  Lal v.  Kapur Chand  the Court took the view that newly  appointed trustees are not legal representatives of the  trustees who  had filed the suit and thereafter died during the  pendency of  the suit, that they can be added as parties under  Order 22,  rule 10  notwithstanding the  fact that the period of limitation for an application to 491 impleaded them under Order 22, rule 3 had elapsed. The Court said (at p. 384):           "Such  an   application  is   obviously   not   an      application under O. 22, R. 3 Civil Procedure Code."

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    We also  see no  reason why  the High  Court should not have granted leave to the appellant to prosecute the appeal.      In the  result we reverse the decree of the court below and direct  the High  Court to  dispose  of  the  appeal  on merits. We  allow the appeal but, in the circumstances, make no order as to costs. V.P.S.                                       Appeal allowed. 492