P.K. Tripathy, J.
1. Petitioner is brother of Haramani Sahoo, the deceased Plaintiff in O.S. No. 22 of 1993 of the Court of Civil Judge (Sr. Division), Puri. She figured as Respondent No. 1 in Title Appeal No. 60 of 1999 of the Court of District Judge, Puri. On her death, Petitioner filed application for substitution. That was rejected by Learned District Judge as per the impugned order passed on 4.5.2002. As against that order, Petitioner filed Civil Revision No. 259 of 2002. In view of amendment of Section 115,C.P.C. in 2002, Petitioner has filed W.P.(C) No. 9878 of 2003 under Article 227 read with Article 226 of the Constitution of India as a matter of abundant caution. Thus, on consent of the parties, the Civil Revision and the Writ Petition were heard analogously and this common Judgment shall abide the result in both the cases.
2. Harshamani, the original Plaintiff filed Title Suit No. 228 of 1993 claiming for decree of monthly maintenance @ Rs. 1,000/-from her husband, i.e., Defendant No. 1/Appellant Ghanashyma Sahoo together with the prayer to charge the suit properties described in schedule A to F towards maintenance in favour of the Plaintiff and for order of permanent injunction against Defendants not to alienate the suit property. Her allegation in the plaint was that her marriage with Defendant No. 1 was solemnized in the year 1970. Two sons and daughter were born out of wedlock, but to their ill luck, none survived. In the year 1988, Defendant No. 1 accepted Defendant No. 3 as his concubine and out of that relationship, a child i.e. Defendant No. 5 was born. Defendant No. 2 is the brother of Defendant No. 1. Defendant No. 4 is the minor son of one Banambar Sahoo. According to the case of the Plaintiff, Defendant No. 1 alienated plaint schedule properties to Defendant nos. 3, 4 and 5 jointly and severally but illegally.
3. Defendant No. 1 filed written statement admitting his relationship with Plaintiff as well as Defendant nos. 3 and 5 as per the statement in the pliant and denied to the allegations of ill-treatment, cruelty and desertion of Plaintiff. He also denied to the claim of maintenance and to the other reliefs claimed by the Plaintiff. Plaintiff filed application for interim maintenance and the Trial Court granted that prayer with direction to the Defendant No. 1/Appellant to pay interim monthly maintenance. Defendant No. 1 did not pay such interim maintenance and, therefore, he was debarred to contest the suit and accordingly, he was set ex parte.
4. Defendant nos.3 and 5 filed joint written statement claiming to be the purchasers and in possession of the properties. They disputed to plaint averments and contested on the issue of creating charge over the suit property as against claim of maintenance of the Plaintiff.
5. On the basis of aforesaid pleadings, issues were settled and the Trial Court granted ex parte decree against Defendant No. 1 and in favour of the Plaintiff only for maintenance @ Rs. 1000/-per month. The other reliefs prayed by the Plaintiff were not granted. Defendant No. 1 filed Title Appeal No. 69 of 1999 and challenged to the decree for maintenance. During pendency of the Appeal, on 23.3.2001 the sole Plaintiff/Respondent No. 1 died. Thus, Petitioner filed application for substitution read with the prayer under Order 1, Rule-10, CPC on the ground that his sister (Plaintiff) was staying with him and was being maintained by him and that deceased-Plaintiff executed a will bequeathing all her properties and right and interest over properties in favour of the Petitioner. By virtue of that will, he is entitled to receive the maintenance amount, which the deceased Plaintiff was entitled to get on the date of her death and, therefore, he is the legal representative in accordance with the definition in Section 2(11) read with Order-22, Rule-4, CPC. The Defendant No. 1-Appellant opposed to that contention by saying that right of maintenance was personal to the Plaintiff and on her death that right is extinguished and not to be succeeded by a brother.
6. As per the impugned order, Learned District Judge held that
In my humble view when it has not been claimed by the third party-intervener that he represents the estate of the deceased-Respondent and he has not taken step for probate of the Will, the preposition of law set down in the above cited cases have no application to the case in hand. As such he is not considered as a necessary and proper party and for that his petition on that score stands rejected.
7. The sole legal issue required to be considered is, as to whether on the basis of a Will executed by the deceased-Plaintiff, Petitioner has acquired legal status to represent the estate of the deceased-Plaintiff together with the decree for maintenance, which was filed in her favour and if Learned District Judge committed illegality in deciding it in above quoted manner.
8. In the case of Surendra Chandra Jena and Ors. v. Laxminarayan Jena and Ors. 65 (1988) C.L.T. 212, the fact before the Court was that in a suit for partition on the death of sole Plaintiff, Defendant Nos. 12 to 14 prayed to transpose them as Plaintiffs on the basis of a will executed by the deceased-Plaintiff. That application was rejected by the Trial Court, but this Court held that
4. Apart from the above fact, Section 211 of the Act makes a special provision. According to this provision, the executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased persons vests in him as such. According to the scheme of the above provision of the Act, the executor is not required to wait for the grant of the probate but can ipso facto being the legal representative prosecute the lis in view of the devolution of the interest under Order 22, Rule 10 of the Code of Civil Procedure, inasmuch as the testator's title stands vested in the executor on his death. The case of an administrator may, however, be different, because he has to wait until grant of the letters of administration in his favour by the Court. The proposition is well settled, and if any authority is needed I may refer to a case of the Patna High Court in Ramcharan Singh v. Mst. Dharohar Kuer.
9. In the case of Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Naik : AIR1986SC411 , fact available to the Apex Court was that Plaintiffs claim for damages for defamation was rejected by the Trial Court, allowed by the 1st Appellate Court, but reversed by the High Court in the Second Appeal. When the Civil Appeal was pending in the Supreme Court that sole Plaintiff/ Appellant died and application was filed by the grandsons and granddaughters for substitution under Order 22, C.P.C. In the said context, the Apex Court held that
7. Where a suit for defamation is dismissed and the Plaintiff has filed an appeal, what the Appellant-Plaintiff is seeking to enforce in the appeal is his right to sue for damages for defamation and as this right does not survive his death, his legal representative has no right to be brought on the record of the appeal in his place and stead if the Appellant dies during the pendency of the appeal. The position, however, is different where a suit for defamation has resulted in a decree in favour of the Plaintiff because in such a case the cause of action has merged in the decree and the decretal debt forms part of his estate and the appeal from the decree by the Defendant becomes a question of benefit or detriment to the estate of the Plaintiff-Respondent which his legal representative is entitled to uphold and defend and is, therefore, entitled to be substituted in place of the deceased Respondent-Plaintiff.
8. Section 306 further speaks only of executors and administrators but on principle the same position must necessarily prevail in the case of other legal representatives, for such legal representatives cannot in law be in better or worse position than executors and administrators and what applies to executors and administrators will apply to other legal representatives also.
9. The position, therefore, is that had the Appellant died during the pendency of his suit, the suit would have abated. Had he died during the pendency of the appeal filed by him in the District Court, the appeal would have equally abated because his suit had been dismissed by the Trial Court. Had he, however, died during the pendency of the second appeal filed by the Respondent in the High Court, the appeal would not have abated because he had succeeded in the first appeal and his suit had been decreed. As, however, the High Court allowed the second appeal and dismissed the suit, the present Appeal by Special Leave must abate because what the Appellant was seeking in this Appeal was to enforce his right to sue for damages for defamation. This right did not survive his death and accordingly, the Appeal abated automatically on his death and his legal representatives acquired no right in law to be brought on the record in his place and stead.
10. In the case of Chiranjila Shrilal Goenka (deceased) through L. Rs. v. Jasjit Singh and Ors. : [1993]2SCR454 , the fact involved was that whether Mrs. S.N. Rungta was to be substituted under Order 22, Rule 3, C.P.C. on the death of his father C.S. Goenka. The Civil Appeal being pending in the Apex Court, a judicial order was passed appointing an arbitrator to determine that issue and list of cases in which such succession/substitution was to be considered was also provided. One of such enlisted case was under Section 273 of Indian Succession Act, in which Mrs. Rungta had applied for probate of the Will. An objection was taken before the arbitrator and ultimately before the Apex Court seeking clarification, if the Arbitrator is competent to consider that question when the petition for probate of the Will was pending on the Original Side of Bombay High Court and whether the Arbitrator can extinguish or supercede the jurisdiction of the High Court in the matter of probate of will. In the above contest, while considering the meaning of the term 'legal representatives' and 'heirs' , their Lordships held that the probate jurisdiction of the High Court of Bombay is to prevail and the arbitrator is to wait till a decision is taken in the probate proceeding.
11. Keeping in view the provision of law under Order 22 and Section 273 of the Indian Succession Act and also the ratio from the above noted decision, it appears that Learned District Judge did not properly consider the contention raised by the parties and after taking note of citations relied on by the parties, made the above quoted sweeping remark to reject the application filed by the Petitioner. The acid test as provided by the Apex Court in the case of Melepurath Sankunni Ezhuthassan (supra) is squarely applicable to the fact and circumstances of the present case. Apart from that, finding of Learned District Judge that 'when it has not been claimed by the third party-intervener that he represents the estate of the deceased-Respondent...' is factually contrary to the plea raised by the Petitioner. Therefore, the impugned order is set aside and Learned District Judge, Puri is directed to afresh consider the applications in accordance with law. Keeping in view the oldness of the appeal, he would do well by disposing of the said application within a period of two months from the date of receipt of a copy of this order.
Accordingly, the Writ Petition is allowed, but the Civil Revision being not maintainable and rendered infructuous is disposed of. No cost.