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Case Number

Civil Misc. Writ Petn. No. 8031 of 1983

Judges

B.D Agarwal, J.

Acts

S. 171(f) U.P Zamindari Abolition & Land Reforms Act (Act
S. 171 Act I of 1951 referred
S. 171(f), U.P Act 1 of 1951,
S. 171(f) U.P Act
sub-rule (1),

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

One Deo Narain was the bhumidhar of the land in dispute. Two registered deeds of sale, dated 17 September 1976 (relating to land in village Atraila Shiv Gulam) and 24 April 1980 (relating to certain plots in village Babura Bhairon Dayal), were executed purporting to be by Deo Narain in favour of the petitioners. Deo Narain and his daughter (respondent 3, Smt. Bhagwanti) instituted Original Suit No. 161 of 1981 in the Court of Munsif, Mirzapur, seeking cancellation of these deeds on various grounds.

Deo Narain died on 30 June 1981 during the pendency of the suit, leaving a brother Jag Deo but no wife or male issue. Two preliminary questions arose: whether the suit abated on his death and whether the civil Court had jurisdiction to try the suit (petitioners contended jurisdiction lay with the revenue Court). The trial Court decided both issues against the petitioners on 20 July 1982; a revision filed by the petitioners was dismissed on 16 March 1983. Aggrieved, the petitioners approached this Court by the present petition.

Legal Issues Presented

Whether the civil Court had jurisdiction to try the suit for cancellation of the impugned deeds (i.e., whether the matter was properly triable by civil Court or fell within the jurisdiction of the revenue Court).
Whether the suit abated on the death of Deo Narain and, if so, whether the surviving plaintiff (respondent 3) could continue the suit in the absence of substitution by the deceased's brother, the alleged preferential heir under S. 171(f) of the U.P. Zamindari Abolition & Land Reforms Act (Act No. I of 1951).

Arguments of the Parties

Petitioners' Arguments

On the death of Deo Narain, his brother is the preferential heir under S. 171(f) of the U.P. Zamindari Abolition & Land Reforms Act (placed in clause (f)) as compared to the married daughter who falls under clause (g); no application was made by the brother to be substituted as legal representative, so the suit could not be maintained by the surviving plaintiff alone.
The averment in paragraph 7 of the plaint that the deed dated 24 April 1980 may have been executed by an imposter means the transaction might be void (not merely voidable), and therefore jurisdiction would lie with the revenue Court rather than the civil Court.

Respondents' Arguments

The plaint as a whole shows the predominant allegation is that the transactions were vitiated by fraud or undue influence (i.e., voidable), so the civil Court has jurisdiction. The single statement in para 7 about an imposter cannot be divorced from the rest of the plaint.
Respondent 3 (the daughter) contended she could be treated as legal representative (intermeddler) of the deceased within S. 2(11), Civil P.C., and thus could pursue the suit.
Reliance was placed on Andhra Bank Ltd. v. R. Srinivasan (AIR 1962 SC 232) to support the view that a person representing only part of the estate can still be a legal representative within S. 2(11), Civil P.C.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Khamani Ram v. District Judge, Budaun, 1983 All CJ 617 : 1983 All LJ 1378	Supports that where the pith and substance of the plaint shows the transaction is voidable (e.g., for fraud or undue influence), jurisdiction lies in the civil Court rather than the revenue Court.	The Court relied upon this authority to conclude that, on the pleadings taken as a whole, the predominant allegation was that the transactions were voidable, so jurisdiction lay in the civil Court.
Lalsa Rai v. Udit Rai, AIR 1924 All 717	Holds that an intermeddler is a 'legal representative' for procedural purposes only and that such inclusion does not alter substantive succession rights of the lawful heirs.	The Court cited this case to support the proposition that an intermeddler cannot be preferred over the lawful heir for substantive succession rights and thus cannot assert the right to sue to the exclusion of the lawful heir.
Suraj Prasad v. Must. Lukhar Kuer, AIR 1939 Pat 117	Affirms the view that an intermeddler treated as a legal representative for procedure does not affect substantive rights of lawful heirs.	The Court relied on this case (along with others) to reinforce that intermeddlers do not gain precedence over lawful heirs for substantive succession and right to sue.
Jai Kishan Dass v. Karimuddin, AIR 1939 Lah 321	States that inclusion of intermeddlers in definition of 'legal representative' is to enable relief against property in their hands but does not alter substantive succession.	Used to support the Court's conclusion that an intermeddler (respondent 3) cannot claim the right to sue in preference to the lawful heir (the brother) for the non-gifted land.
Andhra Bank Ltd. v. R. Srinivasan, AIR 1962 SC 232	Interprets S. 2(11), Civil P.C. broadly to include persons who intermeddle with different parcels of an estate so that parts of an estate do not escape liability; a person representing part of estate can be a 'legal representative' for procedural purposes.	The respondents relied on this authority to argue respondent 3 could be treated as a legal representative for part of the estate. The Court acknowledged the decision but distinguished it: even if respondent 3 were a legal representative for part of the estate, the specific right to sue in respect of non-gifted land vested in the brother under S. 171(f), so respondent 3 cannot claim the right to sue in preference to the lawful heir.
Ismail Jolaha v. Jagannath (1913) 19 Ind Cas 255 (All) and V.T. Elaya Pillai v. J.R. Goundan, AIR 1947 Mad 165	Support the proposition that a legal representative impleaded in a suit is generally confined to the pleadings and can only raise objections that could have been raised by the deceased party himself.	The Court cited these authorities to state the settled proposition that a legal representative is confined to the deceased's pleadings and cannot litigate independent claims in that suit.
Kameshwar Singh v. Ch. Rajbanshi Singh, AIR 1943 Pat 433	Used to support the settled law regarding the limits of a legal representative's rights in a proceeding.	Relied upon by the Court in discussing the scope of a legal representative's capacity to pursue or defend claims in the deceased's suit.
Gulli v. Sawan, AIR 1924 Lah 45	Another authority supporting limitations on an intermeddler's ability to affect substantive succession rights by procedural designation as 'legal representative'.	Used as part of the body of precedent to support that intermeddlers cannot displace lawful heirs' substantive rights.
Mohd. Naina Maracavi v. U. Ammal, AIR 1930 Mad 593	Also cited in support of the proposition on the confined role of a legal representative in the deceased's proceedings.	Referenced among other precedents to support the Court's view on the procedural nature of 'legal representative' and the limitations thereof.

Court's Reasoning and Analysis

The Court proceeded in two principal stages corresponding to the two main contentions raised by the petitioners: (A) jurisdiction of the civil Court versus revenue Court; and (B) whether the suit abated upon the death of Deo Narain and who had the right to continue the suit.

(A) Jurisdiction:

The Court emphasized that jurisdictional inquiry requires reading the plaint in its entirety and discerning the pith and substance of the allegations.
The plaint (paras 3–6) predominantly alleged Deo Narain was old, infirm, had predeceased wife, no male issue, reposed confidence in petitioners and the transaction was secured by taking advantage of his physical and mental infirmity—i.e., allegations of fraud and undue influence.
Although para 7 included a rumour that an imposter may have executed the 24 April 1980 deed, the Court held it was not reasonable to isolate that allegation from the rest of the plaint.
Applying the principle in Khamani Ram (cited), because the predominant theme of the plaint was that the transaction was vitiated and therefore voidable (not established as void on its face), jurisdiction lay in the civil Court. The Court therefore concluded the civil Court had jurisdiction to try the suit.

(B) Abatement and Right to Sue after Death:

The Court quoted O. XXII R. 3 C.P.C. which governs procedure on the death of plaintiffs and the making of legal representatives parties by application; sub-rule (2) provides that if no such application is made within the time limited by law, the suit shall abate so far as the deceased plaintiff is concerned.
The Court examined succession under S. 171(f) of the U.P. Zamindari Abolition & Land Reforms Act (Act I of 1951) and concluded that for the land other than that covered by the deed of gift dated 13 October 1980, the lawful heir entitled to be bhumidhar was the brother Jagdeo, not the married daughter (respondent 3) who is placed under clause (g) of S. 171.
The deed of gift referred to in the plaint covered only part of certain plots in one village and did not cover the land in the other village; thus the right to sue for cancellation of the 17 September 1976 sale (relating to Atraila Shiv Gulam) devolved on the brother. No application to substitute the brother as legal representative had been made.
Consequently, under O. XXII R. 3(2), the suit abated so far as the deceased plaintiff was concerned in respect of the cancellation of the 17 September 1976 deed.
The Court addressed the contention that respondent 3 was a 'legal representative' under S. 2(11), Civil P.C., by virtue of being an intermeddler. It explained, based on Lalsa Rai and other authorities, that being an intermeddler makes a person a 'legal representative' for procedural purposes only and does not alter substantive succession rights in favour of lawful heirs.
The Court further distinguished Andhra Bank Ltd. v. R. Srinivasan (which gave a wide meaning to 'legal representative' to prevent parts of estate escaping liability), reasoning that the issue here was not whether respondent 3 could be a legal representative for part of the estate, but whether the right to sue in respect of the non-gifted land survived in her. Given the rule of succession, that right vested in the brother and respondent 3 could not assert it in his absence.
The Court rejected the respondents' argument that the cause of action for the purposes of O. XXII R. 3(2) should be treated as simply the relief sought (cancellation of both deeds). Instead, it held the 'right to sue' must be understood with reference to the substantive claim (assertion of bhumidhari), so rights devolved according to the rule of succession.

Holding and Implications

Holding: The petition was partly allowed. Specifically:

The civil Court has jurisdiction to try the suit (the pleadings predominantly alleged fraud/undue influence making the transactions voidable and thus triable by the civil Court).
The suit has abated under O. XXII, R. 3(2) Civil P.C. so far as the deceased plaintiff (Deo Narain) is concerned in respect of the cancellation claimed of the deed of sale dated 17 September 1976 (in respect of land in village Atraila Shiv Gulam), because the right to sue in respect of that land devolved upon his brother under S. 171(f) of the U.P. Act and no substitution application was made.
The surviving plaintiff (respondent 3) may continue the suit only insofar as it relates to her share in the land allegedly gifted to her (deed of gift dated 13 October 1980) and to the extent that share is the subject matter of the impugned deed of sale dated 24 April 1980.
There shall be no order as to costs.

Implications: The direct effect of the decision is limited to the parties: the petition succeeds in part (as specified above) and respondent 3's right to continue the suit is confined to her gifted share and the relevant impugned sale (24 April 1980). The opinion does not purport to lay down any new general precedent beyond applying established principles (jurisdiction based on pith and substance of plaint; procedural scope of 'legal representative' under S. 2(11); and abatement under O. XXII R. 3(2)), and it does not discuss broader legal consequences beyond the immediate disposition between the parties.

Disposition recorded in the opinion: "Petition partly allowed."

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Raghunath v. District Judge

1. One Deo Narain was the bhumidhar of the land in dispute. On September 17, 1976 and April 24, 1980, there were registered deeds of sale executed purporting to be by Deo Narain aforesaid in favour of the petitioners. The deed of sale dated September 17, 1976, pertains to land situate in village Atraila Shiv Gulam; the other deed of sale is in respect of certain plots situate in village Babura Bhairon Dayal. Deo Narain, along with his daughter, impleaded as respondent 3, namely, Smt. Bhagwanti instituted Original Suit No. 161 of 1981 in the Court of Munsif, Mirzapur, for cancellation of these deeds of sale on various grounds. Deo Narain died during the pendency of the suit on June 30, 1981. He died leaving his brother Jag Deo, but without the wife or a male issue. The question arose whether upon his death the suit had abated and it was also pleaded for the petitioners (defendants) that the civil Court did not have jurisdiction to try the suit. Preliminary issues were framed by the trial Court on this point. Both these issues were decided by the trial Court against the petitioners on July 20, 1982, the revision filed by the petitioners was dismissed on March 16, 1983. Aggrieved the petitioners (defendants) have approached this Court.

2. Learned counsel for the petitioners raised twofold contention in support of the petition. It was submitted in the first place that on the death of Deo Narain, his brother being the preferential heir under S. 171(f) U.P Zamindari Abolition & Land Reforms Act (Act No. I of 1951) in comparison to married daughter, who is placed under cl. (g) and there being no application from the brother of the deceased seeking his substitution as a legal representative of the deceased, the suit could not be maintained by the surviving plaintiff, namely Smt. Bhagwanti. The other contention is that there being averment in para 7 of the plaint to the effect that the deed of sale dated April 24, 1980, may have been obtained from some imposter by the petitioners, the jurisdiction lies in revenue Court since on that account the transaction could be void and not voidable. Both these contentions have been countered from the other side. Taking up the issue of jurisdiction first, there can be no dispute that for adjudication thereof the averments contained in the plaint have to be taken in their entirety. The effort of the Court has to be to gather the pith and substance of what is alleged in the plaint. Considered in the light thereof it would be observed that in paras 3, 4, 5 and 6 of the plaint there is allegation in substance to the effect that Deo Narain was old and infirm; that his wife had predeceased; that he had no male issue; that he reposed confidence in the petitioners and that the transaction impugned was secured taking advantage of his physical and mental infirmity. No doubt, in para 7, it has been added that it is rumoured that some imposter was set up to execute the deed of sale dated April 24, 1980. But it would not be reasonable to divorce the averment contained in para 7 from the rest of the plaint and to hold on the basis thereof alone that the jurisdiction rests in the revenue Court. Learned counsel Sri S.P Srivastava has cited in support of his contention my decision in Khamani Ram v. District Judge. Budaun, 1983 All CJ 617 : (1983 All LJ 1378). That decision may have been attracted in the instant case provided on the pith and substance of the plaint it could be said that the transaction impugned is claimed to be void. It is not difficult to discern that in the present state of pleading the predominant theme is that the transaction is vitiated on account of fraud or undue influence exercised against the executant. It is not only that para 7 of the plaint is confined to one out of the two impugned deeds of sale, the rest of the averments too suggest that the plaintiffs' case has been that the transaction is voidable. The jurisdiction consequently lies in such a case, according to Khamani Ram's case (supra) as well, in the civil Court.

3. As regards the other submission of Sri Srivastava for the petitioners (Sic) O. XXII R. 3 C.P.C runs as under:

“3. Procedure in case of death of one of several plaintiffs or of sole plaintiff:—

(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.”

4. Of the two plaintiffs to the suit Deo Narain is dead. The right to sue subsequent to his death cannot be claimed to survive to respondent 3 alone. In so far as the land other than that covered under the deed of gift dated 13th October, 1980, is concerned, the legal heir in view of S. 171(f) U.P Act No. 1 of 1951 is Jagdeo, the brother of Deo Narain, deceased, and not respondent 3 (who is a married daughter of Deo Narain and is placed in cl. (g) of S. 171). The deed of gift is in respect only of part of certain plots in village Babura Bhairon Dayal, annexure 3 to the writ petition. This does not at all pertain to the land in the other village. In para 1 of the plaint this is the only deed of gift referred to. There is none else alleged in any part of the pleadings for that matter. It follows that upon the death of Deo Narain, the right to sue for cancellation of deed of sale dated 17th September, 1976 in respect of the land in village Atraila Shiv Gulam devolves upon his brother being a lawful heir and not respondent 3. There is no application by or on behalf of the brother to pursue the matter. In accordance with O. XXII R. 3(2), therefore, the suit abates so far as the deceased plaintiff is concerned in regard to the cancellation claimed of the deed of sale dated September 17, 1976. The right of respondent 3 the co-plaintiff to sue is confined to her share in the gifted land to the extent the same has been transferred by sale under the deed executed on April 24, 1980.

5. For respondent 3, learned counsel urged that she is legal representative of the deceased within the meaning of S. 2(11), Civil P.C, being an intermeddler. In this capacity, however, she cannot have preference over the lawful heir who is the person in whom the right to sue in respect of the non-gifted land survives. Deo Narain asserted his right to sue in capacity as bhumidhar of that land. Upon his death the bhumidhar would be his brother as per S. 171(f), U.P Act 1 of 1951, and not respondent 3. The definition given to the expression ‘legal representative’ in S. 2(11) merely means that a person who intermeddles with the estate may also be treated as the legal representative. It does not mean that a person who intermeddles with the estate of the deceased is to be placed in preference to a person who is found to be the true legal representative of the deceased's property. The law is settled that the inclusion of a person who intermeddles with the property of a deceased person into the definition cannot affect substantive right of the lawful heirs. In Lalsa Rai v. Udit Rai, (AIR 1924 All 717) it was held:—

“It is quite true that when a person intermeddles with the property of the deceased he is a legal representative of the deceased for the purposes of procedure to the extent of the property with which he has intermeddled, but I do not see any principle of law which makes him the representative of the deceased so far as succession to the property of the deceased is concerned. The definition of legal representative in the Code of Civil Procedure is only for the purposes of procedure in instituting and defending suits. Any definition for the purposes of adjective law cannot alter the rule of substantive law and it is not easy to understand how the mere fact that an intermeddler is joined as a party to the suit for recovery of possession can make a decree in that suit in any way binding on the real heir who is not a party to that suit and who later on gets a decree against the intermeddler declaring his superior right.”

6. The same view has been taken in Suraj Prasad v. Must. Lukhar Kuer, AIR 1939 Pat 117 and Jai Kishan Dass v. Karimuddin, AIR 1939 Lah 321. In the last mentioned case it is observed also that a person who intermeddles with the property of the deceased person has been probably included in the definition of the legal representative in the Civil P.C merely to enable persons who wish to obtain relief against the property to proceed against it in the hands of such a person. As would presently appear, this finds support from the observations of the Supreme Court in Andhra Bank Ltd. v. R. Srinivasan, AIR 1962 SC 232 cited for the respondents. The right to sue for the purposes of O. XXII R. 3(2) cannot, in my opinion, be claimed to adhere in an intermeddler in preference to the lawful heir of the deceased under the relevant rule of succession and viewed in the light thereof it may not be doubted that the suit in the present abates so far as the deceased-plaintiff is concerned.

7. Sri Sankatha Rai learned counsel for the respondents relying on Andhra Bank Ltd. v. R. Srinivasan, AIR 1962 SC 232 at P. 239 strenuously argued that a person who represents only a part of the estate of the deceased is also a legal representative within the meaning of S. 2(11). Civil P.C This provision is undoubted. The contention in the aforementioned case was that the respondents who were in possession of different pieces of property belonging to the deceased Raja Bahadur the judgment debtor, under the Will executed by him could not be his legal representatives. The Supreme Court repelled this, observing that the object of widening the scope of the expression ‘legal representative’ which S. 2(11) is intended to achieve would be frustrated if this interpretation were accepted. This moreover is not consistent with the position that persons who intermeddle with a part of the estate are legal representatives. In the words of the Supreme Court:—

“Besides, if such a construction is accepted if would be so easy for the estate of a deceased to escape its legitimate liability to pay the debts of a deceased debtor only if the debtor takes the precaution making several legacies to different persons by his Will.”

8. This decision also is a clear pointer in the direction that the width of the dictionary meaning assigned to the expression “legal representative” in S. 2(11) is aimed to rope in those also who intermeddle with different parcels of the estate of the deceased in order that no part thereof escapes being brought within the clutches of a decree. This, however, is not the question before us in the present case. The issue is not as to whether respondent 3 is a legal representative of Deo Narain deceased plaintiff 1; assuming that she is, the question is whether right to sue survives to her within the meaning of O. 22 R. 3(2), C.P.C in respect of land other than her share in the land gifted to her and her sister by the father on 13th October, 1980. If as is manifest the right to sue in respect thereof inheres in the brother of the deceased who does not choose to pursue the suit, it is plain that, as against him, respondent 3, cannot assert her claim as a legal representative. The respondents therefore do not derive assistance from the decision in Andhra Bank Ltd. (AIR 1962 SC 232) (supra).

9. The submission for the respondents that cause of action for purposes of O. XXII, R. 3(2), C.P.C be construed as merely the relief sought for cancellation of the two deeds of sale is also devoid of merit. The “right to sue” which Deo Narain made the basis in the suit was the assertion that he is bhumidhar of the land in dispute part of which he gifted to his two daughters. That indeed constitutes the soul of the cause of action set up by him. Therefore, on his death the right to sue would devolve upon one who can claim to have become bhumidhar of the said land and in view of the rule of succession it would be the brother and not the married daughter vide S. 171 Act I of 1951 referred to above. This is not deciding the dispute upon merit as the respondents' counsel apprehends but determining whether the suit has within the meaning of O. XXII, R. 3(2) abated in so far as the deceased plaintiff is concerned.

10. Learned counsel urged also that a person who is impleaded as a legal representative of deceased party can raise only such objection as could have been taken by the deceased party himself. He is confined to the pleadings and the case of the plaintiff whose representative he is and cannot agitate in that suit his own claim against the other plaintiff in the case though he may do so in any other proceeding. This proposition is equally well settled and not disputed from the other side though the counsel cited authorities also in aid thereof vide (1913) 19. Ind Cas 255 (All) (Ismail Jolaha v. Jagannath), V.T Elaya Pillai v. J.R Goundan, AIR 1947 Mad. 165. Kameshwar Singh v. Ch. Rajbanshi Singh, AIR 1943 Pat 433; Gulli v. Sawan, AIR 1924 Lah 45, Mohd. Naina Maracavi v. U. Ammal, AIR 1930 Mad 593. The proposition is hardly of relevance to be of any avail to the respondents. The attack against the right claimed by the surviving plaintiff-respondent 3 to pursue the suit in respect of land other than her gifted share is founded entirely upon what is pleaded in the instant case at the instance of the deceased plaintiff. For the discussion in the above, I find that the civil court has jurisdiction to try the suit. The suit has abated under O. XXII, R. 3(2) Civil P.C so far as the deceased plaintiff is concerned. The surviving plaintiff-respondent 3 can pursue it in respect only of her share in the land claimed to have been gifted to her by the deceased father on 13th October, 1980 and to the extent it forms the subject matter of the impugned deed of sale dated April 24, 1980. The petition succeeds therefore in part and is allowed accordingly. In the circumstances there shall be no order as to costs.

11. Petition partly allowed.

Raghunath v. District Judge

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Raghunath v. District Judge

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