Judgment:
R.S. Dalvi, J.
1. Rule, returnable forthwith.
2. This writ petition challenges the order dated 10.02.2009 dismissing the application of the defendant No. 1 and 2, in the suit claiming that the suit abated upon the death of three of the five plaintiffs. The plaintiff No. 1, 3 and 5 expired without leaving behind their respective heirs or legal representatives. The plaintiff No. 2 and 4 remained.
3. The suit is filed for a declaration that plaintiff No. 1 to 5 and defendant No. 3 and 4 are coowners in respect of the suit property. The plaintiff No. 1 to 5 claim a half share in the suit property. The defendant No. 3 and 4 are stated to be having the other half share. Hence the plaintiffs together claim 50% share in the suit property. Each of the plaintiffs would therefore, have 10% share in the suit property if the plaintiffs' contention of co-ownership is upheld.
4. Three of the plaintiffs expired. Hence the remaining two plaintiffs would together have half share in the suit property if the plaintiffs' contentions were upheld. Each of these two remaining plaintiffs being plaintiff No. 2 and 4 would therefore have half of that half share in the suit property.
5. Upon the death of defendant No. 1, 3 and 5, their heirs and legal representatives would be required to be brought on record. This requirement is so that their respective shares, if any, to that extent constituting their estate would be represented by their legal representatives. The person who has to be brought on record as such legal representative is therefore, necessarily required to be the heir of such deceased plaintiff.
6. It was contended on behalf of the defendant No. 1 and 2 in the suit (the petitioners herein) that upon the death of plaintiff No. 1, 3 and 5, the wife of plaintiff No. 2 is required to be brought on record. The wife of plaintiff No. 2 is not an heir or legal representative of the plaintiff No. 1, 3 or 5. The wife of plaintiff No. 2 cannot represent the estate of the deceased plaintiff No. 1, 3 or 5. The wife of the plaintiff No. 2 would only be entitled to an equal share received by the plaintiff No. 2 if such share is allotted and ultimately received. She would receive the share under the communion of assets with her husband, plaintiff No. 2. She would not have any share upon the death of plaintiffs 1, 3 and 5 as an heir of any of them. Hence the contention that the wife of one plaintiff who is alive should be brought on record upon the death of another plaintiff cannot be accepted. It is not a procedure contemplated under Order 22 of the Civil Procedure Code.
7. If the contention of the defendants 1 and 2 (the petitioners herein) were to be accepted, the wife of the plaintiff No. 2 should have been brought on record at the time of the filing of the suit itself and the suit as filed by the five plaintiffs claiming ownership right should have been agitated to have been bad in law as the wife of one of the plaintiffs who was married had not sued. Hence the contention that the wife would be entitled to whatever would be the additional share that her husband, plaintiff No. 2 would get upon the death of his brothers would be the same as what she would get upon the mutual claim of plaintiff No. 2 in the suit upon communion of assets by virtue of her marriage. She would be entitled to such share whether or not the other brothers of her husband expired pending the suit.
8. The petitioners' counsel has drawn my attention to two orders of this Court reported in Shri Zoiba Sakroba Rane Sardessai and ors. v. Shri Abasaheb Sakroba Rane Sardessai 1997 (1) GLT 253. Both the judgments deal with the death of a plaintiff or defendant suing or being sued as co-owner in terms of order 22 of the Civil Procedure Code. The relevant part of the judgment is interesting to note:
the suit was filed by the plaintiffs claiming to be co-owners of the suit property along with the defendants. The plaintiff No. 5 who admittedly was co-owner in the suit properties died on 09.08.1976. Admittedly his heirs were not brought on record within the period prescribed. Insofar as plaintiff No. 5 is concerned, the suit automatically abated on the expiry of the period during which her legal heirs were to be brought on record.
The emphasis is on the pronoun his/her. The plaintiff No. 1, 3 and 5 who died as bachelors did not leave behind legal heirs. Hence their legal heirs could not be brought on record. The wife of their brother is not their heir. 9. The other judgment is much the same. The relevant part runs thus:
some of the plaintiffs who were necessary parties had expired and their legal representatives had not been brought on record within the period of limitation.
10. The contention that the wife of the plaintiff No. 2 should have been brought on record upon the death of plaintiff No. 1, 3 and 5 cannot be accepted. Writ petition is misconceived and is dismissed. Rule discharged