IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.07.2008 C O R A M THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.359 of 1993 S.K.Anwerjan .. Appellant/Plaintiff Vs. 1. C.Leelavathi 2. C.Srinivasa Rao (Died) .. Respondents/Defendants 3. Ramesh Babu 4. L.K.Prasad 5. V.Ramesh RR3 to 5 impleaded as party respondents vide order of Court dated 22.11.2007 made in C.M.P.No.2228 of 2007 Appeal filed under section 96 of CPC as against the judgment and decree dated 30.04.1990 passed in O.S.No.196 of 1985 on the file of the X Assistant Judge, City Civil Court, Madras. For Appellant : M/s.T.R.Rajaraman,Sr.counsel for Ms.Pushpa Sathyanarayanan For respondents: Mr.S.B.S.Raman JUDGMENT The unsuccessful plaintiff filed this appeal challenging and impugning the judgment and decree dated 30.04.1990 passed by the learned X Assistant Judge, City Civil Court, Madras. in O.S.No.196 of 1985, which was filed by the plaintiff as against the defendants for recovery of possession of the immovable property, viz., the flat, which is found described in the schedule of the plaint and for other consequential relief. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. Tersely and briefly, the case of the plaintiff as stood exposited from the plaint could be portrayed thus: https://hcservices.ecourts.gov.in/hcservices/ (a) The Tamil Nadu Housing Board allotted flat No.17-B, Rajaram Colony, Kodambakkam, Madras-24 in favour of the plaintiff vide its letter No.H-III (4) 93103/75 dated 20.03.1976. Consequently, the plaintiff was put in possession of the said flat and he was making payments in monthly instalments to the Tamil Nadu Housing Board. (b) The plaintiff undertook the venture of producing a Tamil film by name "Kai Pidithaval" for which, he was in need of funds. At that time, the first defendant approached the plaintiff for taking on lease, the latter's flat. Since the plaintiff was in need of funds, he obtained a sum of Rs.24,000/- as loan from her and both of them entered into an agreement to sell relating to the flat, as no mortgage of the flat was possible in view of the fact that at that time, the Housing Board did not execute the sale deed in favour of the plaintiff. The first defendant also undertook to pay the monthly instalments of Rs.476/- to the Tamil Nadu Housing Board on behalf of the plaintiff. As on the date of putting D1 in possession of the suit property, it would have fetched easily a monthly rent of Rs.1000/-. (c) Such an agreement to sell emerged only by way of security for the repayment of the said loan of Rs.24,000/-. Even as per that agreement, if the plaintiff would not be in a position to pay the sum of Rs.24,000/- borrowed as loan from the first defendant, he should convey the said flat to her, after getting sale deed from the Housing Board in his favour, and thereafter by executing a sale deed in her favour for a consideration equal to that of the market value prevailing at that time. (d) D1 failed to honour the commitment in paying the instalments on behalf of the plaintiff to the Housing Board. Subsequently, D1 informed the plaintiff, through a letter, that she intends to shift her residence to Hyderabad (Andhra Pradesh) due to her inability to pay the monthly instalments. There was also a clause in the agreement to sell that if the D1 commits default in paying the instalments in favour of the Housing Board for two months consecutively, she should vacate and deliver vacant possession of the property and she also agreed to forego the instalments that might have been paid by her to the Housing Board, except her right of getting back the sum of Rs.24,000/- with interest at 18% p.a with effect from the date of her default, from the plaintiff. (e) D1 committed default in paying instalments in favour of the Housing Board from May 1978. In fact, the plaintiff was constrained to pay the remaining instalments with penal interest and get the sale deed executed in his favour as on 04.05.1984. D1 expressing her inability to continue in possession, left the flat, but she had put D2 in possession, who is an Advocate by profession; the latter https://hcservices.ecourts.gov.in/hcservices/ demanded a sum of Rs.24,000/-. After issuance of the lawyer's notice, the plaintiff filed the suit as against the defendants for recovery of possession and for damages for the use and occupation of the flat and for other incidental reliefs. 3. Per contra, denying and refuting, challenging and impugning, the allegations/averments in the plaint, D2 filed the written statement, which was adopted by D1, the warp and woof of it, would run thus: (i) The plaintiff was not regular in paying the instalments to the Tamil Nadu Housing Board. Hence, he was in need of some one's financial assistance for paying the same. Promising that he would sell the flat in favour the first defendant, he obtained money from her, whereupon, the said agreement to sell emerged on 02.07.1977. (ii) The loan transaction as alleged by the plaintiff is false. Under the said agreement to sell, D1 was put in possession of the suit property. For personal reasons, D1 shifted her residence from the suit flat to a place in Hyderabad during the year 1971, which was intimated to the plaintiff. Whereupon a tripartite agreement between the plaintiff, D1 and D2 emerged on 01.10.1979 and under it, D2 should pay to D1 a sum of Rs.40,000/- and thereupon D2 should step into the shoes of D1 so as to derive the benefit under the agreement to sell. As such, with effect from 01.10.1979 itself, such tripartite agreement came into force and D2 was put in possession of the plaintiff's flat. Accordingly, the plaintiff is not entitled to claim any damages for his use and occupation from the defendants and prayed for the dismissal of the suit. 4. The plaintiff filed a reply statement gainsaying and controverting the allegations as set out in the written statement. 5. D2 in O.S.NO.196/85 filed a separate suit in O.S.No.7112/86 before the same Court for specific performance of the said agreement to sell. Issues were framed in the suits. During joint trial, on the side of the plaintiffs, P.Ws.1 to 4 were examined and Ex.A1 and Ex.A10 were marked. On the side of the defendants D.Ws.1 to 7 were examined and Exs.B1 to Ex.B19 were marked. Ultimately, the trial Court dismissed both the suits. 6. Being aggrieved by and dissatisfied with the judgement and decree of the trial Court in dismissing the original suit of the plaintiff, this appeal has been filed on various grounds, the quintessence of them would run thus: (i) The judgement and decree of the trial Court is against law, weight of evidence and all probabilities of the case. https://hcservices.ecourts.gov.in/hcservices/ (ii) While dismissing the suit O.S.No.7112/86 filed for specific performance by Srinivasa Rao, the lower Court should have decreed the suit of the appellant/plaintiff herein, viz., Anwerjan. (iii) The trial Court erred in finding that Ex.P8 was barely an agreement to sell. (iv) The trial Court dismissed the original suit No.196/85 of Anwerjan on the ground of limitation without applying the law properly and also ignoring the fact that 12 years' limitation period was available for Anwerjan to file the suit for recovery of possession of the flat. (v) Ex.B8 emerged only by way of security for the repayment of the said loan of Rs.24,000/- but the said fact was ignored by the lower court. (vi) The trial Court failed to note the contradicting versions of the defendant's witnesses relating to Ex.B8. DW3's witness was wrongly relied on by the plaintiff. (vii) Ex.B8 was opposed to public policy and also Section 23 of the Contract Act. (viii) The deposition of DW1 and DW3 were not considered by the trial Court properly. (ix) The evidence on record were not considered by the trial Court in adjudging the case. (x) The trial Court ignored the significance of Ex.A 50. (xi) Exs.23, 24, 28 and 29 were not considered properly by the trial Court. (xii) The trial Court failed to note that Exs.37 to 40 evinced that the plaintiff was not at all in Madras on the date of the alleged emergence of tripartite agreement. (xiii) Accordingly, he prayed for setting aside the judgment and decree of the trial Court and for dismissing the suit in O.S.No.196 of 1985 in toto. 7. The points for consideration are as to: https://hcservices.ecourts.gov.in/hcservices/ (i) What is the status of the newly added respondents, namely, Ramesh Babu, L.K.Prasad and V.Ramesh consequent upon the death of Srinivasa Rao in this appeal? (ii) Whether the dismissal of the appeal 22/93, filed by Srinivasa Rao, on 31.10.2000 would constitute an embargo as resjudicata for the newly added respondents to defend this appeal, as the ones representing the deceased Srinivasa Rao? (iii)Whether the agreement to sell (Ex.A51) is valid as per law? and whether the plea of Srinivasa Rao that D1- Leelavathy transferred her right in the agreement to sell, which emerged between D1-Leelavathy and the plaintiff, in his favour orally, as per the oral tripartite agreement, among the plaintiff, D1 and D2, is true and legally tenable? (iv) Whether the trial Court was justified in dismissing the suit on the ground of limitation? (v) Whether the maxim "in pari delicto potior est conditio possidentis" is applicable in this case? (vi) Whether there is any infirmity in the judgement and decree of the trial Court? Point No.1: 8. A resume of the happenings that took place during the pendency of this appeal could be set out thus:- During the pendency of this appeal, the second respondent- Srinivasa Rao died, whereupon, C.M.P.No.2228 of 2007 was filed. My learned predecessors dealt with the matter and on 22.11.2007 ordered as under:- "3. A memo has been filed on behalf of the second respondent, intimating his counsel that the second respondent, namely, V.Srinivasa Rao died on 22.12.2006 at Guntur. On the information given in the memo, steps have been taken and this petition has been filed, wherein this Court ordered notice to the respondents on 21.7.2007 returnable on 6.8.2007. 4.Heard the learned counsel on both sides. Learned counsel for the petitioner and the learned counsel appearing on behalf of the proposed respondents have no objection this petition being ordered without prejudice to the rights of the parties. https://hcservices.ecourts.gov.in/hcservices/ 5. In view of the submission made by the learned counsel on either side and as the death of the second respondent has been brought to the notice of this Court, this petition for impleading respondents 2 to 4 herein as respondents 3 to 5 in the appeal stands ordered without prejudice to the rights of the parties." 9. As such, in view of the above order passed by my predecessor, now before this Court, in the place of deceased second respondent- V.Srinivasa Rao, the respondents Ramesh Babu, L.K.Prasad and V.Ramesh are representing and on their behalf, their learned counsel submitted his argument. 10. The learned Senior counsel for the appellant would contend that the learned counsel, who appeared for the deceased Srinivasa Rao filed memo dated 12.7.2007, which is extracted hereunder for ready reference: "Counsel for the 2nd respondent is informed that the 2nd respondent the above named Mr.V.Srinivasa Rao died on 22.12.2006 at Guntur. Under his Last Will and Testament made and executed at Chinnakondrapadu Village, Pratipadu Mandalam, Guntur District, Andhra Pradesh, the said 2nd respondent has appointed (1) Mr.Ramesh Babu, son of V.Ramadas, No.65, 8th Street, 6th Cross, Vaishnavi Nagar, Thirumullaivoyal, Chennai-109 and (2) Mr.L.K.Prasad, son of Dr.L.Veera Rao, of Chinakondrapadu Village, Pratipadu Mandalam, Guntur District as his executors. It is prayed that notice in the appeal be issued to the said Executors. Dated at Chennai this the 12th day of July 2007." whereupon, the said newly added respondents have been added without in any way the appellant admitting or acknowledging that they are the legal representatives of the deceased Srinivasa Rao. However, only for the purpose of proceeding with the appeal, they have been added, as per Order XXII Rule 4-A of C.P.C.; and those newly added respondents cannot canvas any right under the said Will, which was not admittedly probated, even though the suit property is situated within Chennai city and that as per Section 213 of the Indian Succession Act, the said Will cannot be relied on by the Court for any purpose. 11. In support of her proposition, the learned Senior counsel for the appellant cited various decisions and therefore, it is just and necessary to refer to them: (i) 2001 4 Civil Law Journal 209 -Bangali Singh and another vs. Ramanuj Sharma- A excerpt from the decision in would rund thus: https://hcservices.ecourts.gov.in/hcservices/ "5. . . . . . . .In this connection I am to refer to Order XXII, Rule 4-A CPC, where it has been laid down that if, in any suit it shall appear to the Court that there is no legal representative of the party who died during the pendency of the suit, the Court may on the application of any party to the suit proceed in absence of a person representing the state of the deceased person, or may by order appoint the Administrator-General, or an officer of the Court of such other person as it thinks fit to represent the estate of the deceased person or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a personal representative of the deceased person had been a party to the suit. This rule was added by amending Act 104 of 1976. The aforesaid provisions makes it abundantly clear that a suit may be allowed to proceed even in the absence of the deceased plaintiff or defendant by a person who is appointed by the Court to represent the estate of the deceased plaintiff or defendant and the suit may be continued by that person and a judgement and decree may be passed. This judgement and decree will bind the estate of the deceased. That means the estate of the deceased will be protected by the judgement and decree passed by the Court. So, the spirit behind substitution is that interest of the original plaintiff or defendant who dies during the pendency of the suit and who is to be represented by the substituted plaintiff may be protected. This is the inherent spirit behind substitution. So, when the original plaintiff Daro Kuer, had filed a suit seeking setting aside of the alleged deed of gift executed by her in favour of the defendant of the suit, the legal representative whoever may be shall be entitled to continue the suit and protect the interest of the original plaintiff. If the suit is allowed to abate, the interest of the original plaintiff shall become extinct and the defendants of the suit shall be holding the suit land under illegal right. Normally when estate of any person is without any heir the property goes to the State by escheat but when suit abates and the defendant of a particular suit is allowed to hold the suit land illegally even the State cannot take the property of the deceased plaintiff by escheat. So, guiding principle behind substitution as mentioned in the amending Rule 4-A, Order XXII, C.P.C.is that the suit must be allowed to be continued by a legal representative in order to protect the interest of the original plaintiff and to protect the interest of the original plaintiff and to protect his or her estate from being usurped by unauthorised person. So, I do not think that the decree passed by the Trial Court was bad or the https://hcservices.ecourts.gov.in/hcservices/ decree confirmed by the appellate Court was also vitiated by any illegality. The decree passed in the instant suit would, therefore, be a decree in favour of the original plaintiff Daro Kuer and not in favour of the substituted plaintiff. Now I shall herein below consider when Ramanuj Sharma acquired any right being the legal representative of Daro Kuer by virtue of the decree passed by the lower Courts. In this Connection I am to refer to a decision cited by the defendant's Lawyer as in AIR 1971 Kerala Page 270(Geevarghese and another v. Issahak George and others). . . . . 6. . . . .. .However, if it was declared by the Court by its decree that right of the plaintiff remained unaffected that may amount to the declaration that the substituted plaintiff Ramanuj Sharma had also acquired title to the suit property. In this connection, I am of the opinion that of course, the decree in the present form might indicate that the right of the substituted plaintiff in the suit land remanded unaffected. However, of course the substituted plaintiff would derive no title, right and any interest n the suit land by virtue of the unprobated Will although he might act as legal representative to continue the suit. So, it is made clear here and it is observed that the substituted plaintiff Ramanuj Sharma shall derive no right, title and any interest over the suit property by seeking the cancellation of the deed of gift, as decree by the two lower Courts. It is the original plaintiff whose right and title of the suit property shall remain unaffected by the decree granted by the two lower Courts." 12. A perusal of the said judgement would highlight the fact that an unprobated Will cannot be presumed to service for any purpose before the Court to derive any title by the newly added respondents, who could only on behalf of the deceased participate in the proceedings. But for their presence, the Court should proceed in any of the other modes contemplated under Order XXII, Rule 4-A. 13. At this juncture, it is just and necessary to extract hereunder Order XXII, Rule 4-A C.P.C: "Order XXII, Rule 4-A.Procedure where there is no legal representative – If in any suit, it shall appear to the court that any party who has died during the pendency of the suit has no legal representative the Court may, on the application of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may by order appoint the Administrator General, or an https://hcservices.ecourts.gov.in/hcservices/ officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of the suit and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a person had been a party to the suit." 14. A perusal of the above would indicate the relevant procedure to be adopted in the event of no one could be located for representing the interest of the deceased. 15. Here, in this case, since the learned counsel, who appeared on behalf of the deceased filed the memo, highlighting the said newly added three respondents as executors of the Will, the Court is justified in citing them in the party array. As such, I am in complete agreement with the view expressed by the Patna High Court in the judgement reported in 2001 4 Civil Lar Journal 209 -Bangali Singh and another vs. Ramanuj Sharma, cited supra. 16. An excerpt from one other decision cited by the learned Senior counsel for the plaintiff reported in "2001 Vol.103(4) Bom.L.R.540 GULABBEN WD/O CHIMANLAL MANIAR & OTHERS VS. NARENDRA BALCHANDRA AND OTHERS would run thus:- "7. . . . . On plain language of this provision it would appear that any party to the suit could have taken recourse to this Rule, nay was duty-bound to do so. While doing so, it was enough for the plaintiffs to assert that deceased defendant No.1 had not left behind any heir or legal representative to represent his estate so as to invoke this rule. The application filed by the petitioners does make this assertion. Moreover the evidence let in during trial would also fortify this position, as contended by the petitioners. But the Court below has erroneously recorded that there is nothing before the Court that no heir and legal representative were left by defendant No.1 after her death. This finding is therefore rightly critized by the learned counsel for the petitioners being an error apparent on the face of the record. I find substance in the said submission. In other words, the Court below has applied wrong test while deciding the application in question. Once this finding is reversed, as a necessary corollary, it would follow that the trial Court will have to re-examine the matter in the context of scope of rule 4A coupled with procedural requirement under sub-rule (2) of Rule 4A. While doing so, the Curt below shall also bear in mind the effect of sub rule (4) of Rule 4 which postulates that the Court whenever it thinks fit may exempt the plaintiff from the https://hcservices.ecourts.gov.in/hcservices/ necessity of substituting the legal representatives of any such defendant who has failed to file written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such a case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as before the death took place. It is not in dispute that the deceased defendant No.1 had not filed written statement in the suit, therefore, in terms of Rule 4(4) the plaintiffs were additionally entitled to claim that they could be exempted from the necessity of substituting the legal representatives, in which case the order of abatement of suit as against such defendant was unwarranted and impertinent. 9. In the circumstances the only appropriate order that could be passed is to remit the matter to the trial Court to re-examine the application in the context of requirements of sub-rule (4) of rule 4 as well as rule 4A of Order XXII of the Code of Civil Procedure. 10. The Argument advanced on behalf of the respondents that the petitioners-plaintiffs had failed to move for setting aside the order passed on 16.9.1992 is of no avail. In my view, the application in question, as is evident from the assertion made therein was taken out only after evidence was let in before the trial Court and which would go to show that the deceased defendant No.1 has not left behind any heir or legal representative. In the changed situation the said application was filed by the plaintiffs and therefore, it would be wholly in appropriate to non-suit the plaintiffs on the ground that no steps have been taken for setting aside the order date 16.9.1992. in my view, the observations made by the trial Court in its order dated 30.8.1995 will have to be understood int he context of fact situation which has come on record. Needless to mention that the order of abatement is not so sacrosanct or inviolable that the same cannot be altered at a subsequent point of time inspite of sufficient cause being shown by the plaintiffs or any other party to the suit. If the party to the suit is able to satisfy the Court that the requirements of Rule 4A or Rule 4(4) are attracted in a given case then the Court may in its inherent powers pass appropriate orders including an order of setting aside abatement on such ground. If the aforesaid rules permit prosecution of the suit in absence of legal representatives of the deceased party, and yet the judgement passed would bind the estate of such deceased party, then surely it would be preposterous to https://hcservices.ecourts.gov.in/hcservices/ contend that suit against such a person would abate law. Both these situations would be antithesis to each other. In my view it would defeat the legislative intent behind the Amendment Act of 1976." 17. As such, the said decision