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Awadh Bihari Prasad v. Jhaman Mahton And Others Opposite Party.
Factual and Procedural Background
The petitioner and his (now deceased) brother instituted Title Suit No. 24/15 of 1943/1945 in the Court of the 1st Subordinate Judge, Patna, seeking a declaration that an ex parte decree dated 19-11-1938 (in Title Mortgage Suit No. 14 of 1938) and the sale executed under it were fraudulent and collusive, and therefore not binding on them or on their share of joint family properties. The plaintiffs also sought recovery of possession, ascertainment of mesne profits, and a permanent injunction restraining delivery of possession to the opposite party.
The suit was contested and dismissed by the Additional Subordinate Judge, Patna, on 22-5-1946. The plaintiff appealed to the High Court (First Appeal No. 374 of 1946). The High Court Division Bench held that the appeal had abated because two respondents (Raghunandan Prasad and Sohrai Mahton) had died during the pendency of the appeal and no substitution had been made; the Bench concluded that the whole appeal abated since the suit sought to set aside a mortgage decree and subsequent sale affecting joint family properties. The petitioner then applied for leave to appeal to the Supreme Court under Article 133 of the Constitution. This opinion decides that application.
Legal Issues Presented
- Whether the High Court was correct in holding that the appeal had abated because certain respondents died during the pendency of the appeal and no substitution had been made.
- Whether, as a matter of law, the widow of a deceased coparcener (here Mt. Parbati Devi) is a "legal representative" within the meaning of O. 22, R. 3 (and O. 22, R. 4 as discussed) read with S. 2(11) of the Civil Procedure Code, in the circumstances of this suit.
- Whether the interest acquired by a Hindu widow under the Hindu Women's Rights to Property Act, 1937, makes her a representative such that non-substitution leads to abatement of the appeal.
- Whether there is a "substantial question of law" warranting a certificate under Article 133 of the Constitution (including consideration of the value of the property for jurisdictional threshold).
Arguments of the Parties
Petitioner's (Appellant's) Arguments
- It was not incumbent on the appellants to substitute the widow Mt. Parbati Devi in place of the deceased respondent Raghunandan Prasad; therefore the High Court erred in holding that the appeal had abated.
- Relied on Balgajan v. Sughu Rai (AIR 1948 Pat 288) to argue that there is no abatement where legal representatives had concealed facts from the Court and the proceedings continued in their presence without the heirs bringing themselves on the record.
- The widow's interest was effectively represented by the karta of the joint family and other members of the joint family were already on the record; therefore, no question of abatement should arise.
- Argued (as a second branch) that under the Hindu Women's Rights to Property Act, 1937 a Hindu widow does not become a coparcener on her husband's death and therefore is not a "legal representative" under S.2(11) and the Order/Rule provisions of the CPC; relied on Radha Raman v. Anant Singh (AIR 1945 Oudh 196) for the proposition that substitution of the widow was not necessary where the manager had sued in representative capacity.
Opposite Party's (Respondent's) Arguments
- The appeal had abated because respondents Raghunandan Prasad and Sohrai Mahton died during the proceeding and no substitution of their heirs (including the widow Mt. Parbati Devi) was made; hence the High Court correctly dismissed the appeal for abatement.
- Contended that the heirs of the deceased respondents included persons not on the record (e.g., Nawalkishore Prasad) and therefore substitution was necessary.
- Relied on authorities and statutory provisions (including Section 3(2) and 3(3) of the Hindu Women's Rights to Property Act, 1937 and Siveshwar Prasad v. Har Narain (AIR 1945 Pat 116)) to argue that a widow acquires an interest on death of her husband which is akin to the husband's asset in her hands and thus makes her a legal representative for procedural purposes.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Balgajan v. Sughu Rai, AIR 1948 Pat 288 | Held there was no abatement of appeal where legal representatives of a deceased party had concealed facts and the appeal was disposed of in the presence of persons who were allowed to prosecute as representatives, and the legal heirs did not inform the Court they should be brought on record. | The Court found the facts of the present case manifestly different and held that the principle in Balgajan was not applicable here because the present suit was against individual coparceners and not brought in a representative capacity. |
| Prahlad Das v. Dasrathi Satpathi, AIR 1940 Pat 117 | Observed that when sons and grandsons are parties to a suit the question of their father representing them cannot arise. | Applied to reject the petitioner's contention that other coparceners on record (or the karta) could represent the interest of the widow; Court held the suit was against individual members, not representative, so the father (or karta) could not represent missing heirs. |
| Deonarain v. Bibi Khatoon, AIR 1949 Patna 401 | Held that where a decree was passed against A and his sons and grandsons, the father could not represent sons and grandsons not made parties to the execution; their shares did not pass in sale in execution. | Used to support the proposition that an individual cannot be taken to represent others not on record; Court relied on it to deny that other family members could represent the widow's interest for purposes of preventing abatement. |
| Radha Raman v. Anant Singh, AIR 1945 Oudh 196 | Where a manager (karta) sued in representative capacity, his sons/managers who were on record could represent the joint family after his death and substitution of widow was not necessary. | The Court distinguished this case: Radha Raman involved a suit brought by the manager in a representative capacity (so sons could continue). The present suit was not so brought, therefore the ratio did not help the petitioner. |
| F.A. No. 124 of 1926, Dated 29-1-1952 (Pat) | Held it was necessary to substitute the widows of plaintiffs who died during the pendency of the appeal; absence of substitution caused abatement of the whole appeal. | Relied upon by the Court to support the conclusion that substitution of widows was necessary in cases like the present where the deceased had been a coparcener and the suit was not in a representative capacity. |
| Siveshwar Prasad v. Har Narain, AIR 1945 Pat 116 | Held that interest acquired by a widow under the Hindu Women's Rights to Property Act, 1937 is as an heir of her husband; the interest is an asset of her husband in her hands and can be proceeded against by a creditor even if undivided in joint family property. | Relied on to conclude that a widow's interest under the 1937 Act is sufficiently linked to the deceased's estate to make her a legal representative for procedural purposes; used in rejecting petitioner's contention that a widow is not a legal representative under S.2(11) CPC and Order/Rule provisions. |
| AIR 1946 Oudh 196 (as cited by Das, J.) | Described (by Das, J.) as the decision that can be distinguished because it dealt with a suit brought in representative capacity by a manager. | Das, J. used this distinction to support the conclusion that the present petitioners should have substituted heirs of deceased respondents when the suit was against individual coparceners rather than against a representative (karta). |
Court's Reasoning and Analysis
The Court proceeded by examining (1) the factual posture of the original suit and appeal, and (2) the applicable authorities and statutory provisions referred to by both sides.
Ramaswami, J. analyzed the petitioner's principal contentions and rejected them for the following reasons (stated in the opinion):
- Distinction from Balgajan v. Sughu Rai: The Court found the facts of Balgajan materially different. In Balgajan the appeal was disposed of in the presence of persons prosecuting as representatives and the heirs had not asked to be brought on record. By contrast, in the present case the suit was brought against individual coparceners and not in a representative capacity, so the Balgajan principle did not apply.
- Representative capacity and the role of the karta: Ramaswami, J. relied on Prahlad Das v. Dasrathi Satpathi to observe that where sons and grandsons are parties the father cannot be taken to represent them; similarly, other members or the karta cannot be read as representing the widow's interest when the suit names individuals and not a representative. The Court also cited Deonarain v. Bibi Khatoon to support the proposition that an individual cannot be taken to represent absent heirs for purposes of execution/abatement.
- Statutory effect of the Hindu Women's Rights to Property Act, 1937: The Court examined Section 3(2) and Section 3(3) of the Act (as recited in the opinion) and concluded that on the death of a husband who was a coparcener, the widow acquires an interest described in the Act (a Hindu woman's estate) with the same right of claiming partition as a male owner. Therefore, it was difficult to accept the petitioner's contention that a Hindu widow is not a legal representative within the meaning of S.2(11) CPC read with the relevant Order/Rule.
- Reliance on precedent: The Court placed weight on a prior Bench decision (F.A. No. 124 of 1926, dated 29-1-1952 (Pat)) holding substitution of widows was necessary and that absence of substitution caused the appeal to abate. The Court also relied on Siveshwar Prasad v. Har Narain to show that a widow's interest under the 1937 Act is an interest of the husband in her hands and may be proceeded against by creditors — a formulation used to justify treating the widow's interest as relevant for procedural substitution.
- Valuation and Article 133: The Court proceeded on the assumption (as the petitioner claimed) that the value of the property exceeded Rs. 20,000. A counter-affidavit challenged that valuation. Even assuming the petitioner's valuation, the Court concluded there was no substantial question of law involved as required for a certificate under Article 133.
Das, J. concurred and emphasized the factual distinction with the authority relied upon by the petitioner (the Oudh decision where the manager sued in representative capacity). Das, J. stressed that because the petitioner sued the individual coparceners (not a karta in representative capacity), it was incumbent on the petitioners to bring the heirs of deceased respondents on the record.
Holding and Implications
Holding:
The application for leave to appeal to the Supreme Court under Article 133 of the Constitution is dismissed.
The Court specifically held that there was no substantial question of law for the purposes of Article 133, and that the petitioner is not entitled to a certificate under that Article. The petition was dismissed and a hearing fee of five gold mohurs was imposed.
Implications:
- Direct consequence: The petitioner will not be granted leave to appeal to the Supreme Court; the High Court's dismissal of the First Appeal for abatement stands in substance as the Supreme Court will not entertain the appeal on the present application.
- Procedural consequence emphasized by the Court: Where a suit is brought against individual coparceners (not in a representative capacity), substitution of heirs (including widows) of deceased parties during the pendency of an appeal is required; failure to substitute may result in abatement of the entire appeal.
- Broader precedent: The opinion does not purport to create a new legal principle; it applies existing authorities and statutory interpretation to the facts and concludes there is no substantial question of law for Article 133 purposes.
Ramaswami, J.:— This is an application for leave to appeal to the Supreme Court on behalf of the plaintiff under Article 133 of the Constitution.
2. The petitioner and his brother, since deceased, brought Title Suit No. 24/15 of 1943/1945 in the Court of the 1st Subordinate Judge, Patna, for a declaration that an ‘ex parte’ decree dated 19-11-1938, granted by the 2nd Subordinate Judge of Patna in Title Mortgage Suit No. 14 of 1938 and the sale in execution of that decree were fraudulent and collusive and not binding upon the plaintiffs nor on the share of the Joint family properties to which the plaintiffs were entitled. There was also a prayer for recovery of possession of the properties and for ascertainment of mesne profits. A further relief was also claimed for a permanent injunction against the opposite party restraining them from taking delivery of possession over the properties in suit. The suit was contested by the opposite party and on 22-5-1946, the suit was dismissed by the Additional Subordinate Judge, I Patna. The plaintiff preferred First Appeal No. 374 of 1946 in the High Court against the judgment and decree of the Additional Subordinate Judge, Patna. When the appeal was heard in the High Court I it was argued on behalf of the opposite party at the outset that the whole appeal had abated in view of the circumstance that respondent 1 Raghunandan Prasad and respondent 7 Sohrai Mahton were dead and no substitution had been made in their place on behalf of the appellants. It was alleged that the heirs of Sohrai Mahton were respondents 1 to 7 and also Nawalkishore Prasad, who was a coparcener of the joint family and who was not brought on the record of the case. As regards Raghunandan Prasad, it was said that his widow Mt. Parbati Devi was not substituted. This objection was upheld by a Division Bench, and the First Appeal was dismissed on the ground that the whole appeal had abated. It was held that the appeal had abated not only against respondents 1 and 7 but the entire appeal had abated since the suit was for setting aside a mortgage decree obtained by the defendants first party and for setting aside the sale in execution in course of which defendants first and second parties had purchased the mortgaged properties and obtained possession thereof.
3. In support of this application Mr. Janak Kishore submitted, in the first place, that it was not incumbent on the appellants to substitute the widow, Mt. Parbati Devi, in place of Raghunandan Prasad, and the High Court was erroneous in holding that the appeal had abated either against Raghunandan Prasad or against other respondents arrayed in the appeal. The argument of learned counsel is based upon — ‘Balgajan v. Sughu Rai’, AIR 1948 Pat 288 (A), in which it was held by Shearer, J. that there was no abatment of the appeal if the legal representatives of the deceased party to the appeal had concealed certain facts from the Court. In that case, during the pendency of the appeal one of the respondents died leaving behind him a widow & sons & no steps were taken to bring them on the record. The appeal was disposed of in the presence of the respondents who were allowed to prosecute the suit as the representatives of the deceased and the legal heirs did not intimate to the Court that they ought to be brought on the record. In this state of facts it was held by the High Court that there was no abatement of the appeal. The material facts of the present case are manifestly different I and Mr. Janak Kishore is not certainly right in I saying that the principle laid down in — A.I.R 1948 Pat. 288 (A)’ is applicable to the present case. It was contended by learned counsel that the other members of the joint family were already on the record of the case and the interest of the widow was in fact represented by the karta of the joint family, and no question of abatement would therefore, arise.
4. This argument cannot possibly be accepted in view of the decision of this Court in — ‘Prahlad Das v. Dasrathi Satpathi’, AIR 1940 Pat 117 (B) in which Khwaja Mohamad Noor, J. observed that when sons and grandsons are parties to a suit the question of their father representing them cannot possibly arise”. The reason is that the suit was not brought by the petitioner against the karta of the joint family, but the suit had been brought against the individual members of the joint family and not in a representative capacity. It is, therefore, not open to learned counsel for the petitioner to argue that the interest of the widow of Raghunandan Prasad was represented by the other members of the joint family on the record of the case. This view is supported by—‘Deonarain v. Bibi Khatoon’, A.I.R 1949 Patna 401 (C) in which a decree was passed against A, his five sons and three grandsons, but in the execution proceeding two of the sons and the grandsons were not made parties. It was held that the father could not represent the sons and grandsons who were not made parties to the execution proceeding and they were not under the pious obligation to pay off the father's debt, and therefore their share in the properties sold in execution of the decree did not pass.
5. The second branch of the argument of learned Counsel is that the interest of a Hindu widow under the Hindu Women's Rights to Property Act, 1937, was not the interest of a coparcener, that on the death of her husband the widow does not become a member of the coparcenary, and therefore the widow was not a “legal representative” within the meaning of O. 22, R. 3 read with Section 2 sub-section (11) of the CPC. Section 2 sub-s. (11) defines a legal representative to be
“a person who in law represents the estate of a deceased person, and includes any person who inter meddles with the estate of the deceased.”
6. In support of his contention learned Counsel relied upon — ‘Radha Raman v. Anant Singh’, AIR 1945 Oudh 196 (D), in which it was held that when the manager of a joint family dies after the institution of a suit in respect of a joint family fund, his sons, who were the managing members of the family, were competent to represent other members, and if they were brought on the record within time, the suit or the appeal did not abate by lapse of time, and it was not necessary to bring the manager's widow on the record. The ratio of this case is of no assistance to the petitioner, for the suit was brought by the manager in a representative capacity and the sons or even one of the sons could effectively prosecute the suit on behalf of the joint family after the manager's death.
7. The facts of the present case are manifestly different for the suit was not brought against the ‘karta’ in a representative capacity but against the individual coparceners who had obtained the previous mortgage decree. The present case is governed in fact by a decision in — ‘F.A No. 124 of 1926 D/- 29-1-1952 (Pat) (E), by a Bench consisting of the Chief Justice and Reuben, J. (as he then was) holding that it was necessary to substitute the widows of the plaintiffs who died during the pendency of the appeal in this Court, and in the absence of substitution being effected, the whole appeal abated. In that case the plaintiffs had obtained a mortgage decree for sale of the mortgaged properties and the defendants had preferred an appeal against that decree in the High Court. Now, under Section 3(2) of the Hindu Women's Right to Property Act, 1937, a Hindu widow acquires on the death of her husband, who is a coparcener of the joint family, the same interest as the coparcener had, and under S. 3(3) of the Act, any interest devolving on a Hindu widow under the provisions of this section would be the limited interest known as a Hindu woman's estate, provided however that she shall have the same right of claiming partition as a male owner. In view of the provisions of the statute it is difficult to accept the contention of learned counsel that a Hindu widow is not a legal representative of the deceased coparcener within the meaning of S. 2(11) read with O. 22, R. 4 of the CPC. Reference has also been made on opposite party's behalf to — ‘Siveshwar Prasad v. Har Narain’, AIR 1945 Pat 116 (P), in which it was held by this Court that interest acquired by a widow under the Hindu Women's Rights to Property Act, 1937, is not as a survivor but as an heir of her husband. The interest, therefore, is an asset of her husband in her hands and can be proceeded against by a creditor even though it may be an undivided interest in a joint family property. For all these reasons I am inclined to hold that there is no substantial question of law involved in this case, and the petitioner is not entitled to a certificate under Article 133 of the Constitution.
8. I have proceeded so far on the assumption that the valuation of the property involved in the suit is over Rs. 20,000/- as the petitioner has claimed. It appears that the suit was valued at Rs. 12,600/- but it is the case of the petitioner in para 22 of the affidavit that the real value of the property was more than Rs. 20,000/- at the time of the institution of the suit and at the date on which the final order was passed by the High Court. A counter-affidavit has been filed on behalf of the opposite party challenging the valuation given on behalf of the petitioner. It is stated in para 4 of the counter-affidavit that the value of the share of the plaintiff was not even to the extent of Rs. 10,000/- at the time of the filing of the suit, and the value of the property could not be Rs. 20,000/- even at the date of the application for leave to appeal. But assuming that the valuation given by the petitioner is correct, I hold that there is no substantial question of law involved in the suit, and the application does not satisfy the requirements of Article 133 of the Constitution.
9. This application is accordingly dismissed: hearing fee five gold mohurs.
10. Das, J.:— I agree. I think the decision in — ‘AIR 1946 Oudh 196 (D)’, can be distinguished. In that case the suit was brought by Jang Bahadur Singh in his representative capacity as representing the joint family. His sons were not plaintiffs in the suit. When Jang Bahadur Singh died during the pendency of the appeal, his sons, who were the managers of the joint family, were brought on the record, and it was stated that the sons represented the joint family. It was in that context that an observation was made to the effect that when the manager of a joint family dies after the institution of a suit in respect of a joint family fund, his sons, who are the managing members of the family, are competent to represent other members, and if they are brought on the record within time, the suit or the appeal does not abate by lapse of time. In the case before us the fundamental fact to be remembered is that the present petitioner, who was the plaintiff, wanted to get rid of a mortgage decree obtained by several persons, and the petitioner brought all those persons into the record and did not sue anyone of them as representing the joint family. In these circumstances, I think, it was incumbent on the present petitioners to bring the heirs of the two respondents on the record who had died during the pendency of the appeal.
B/D.H.Z
11. Application dismissed.
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