JUDGMENT
Chaudhry, J.
(1) By this suit the plaintiff claim a decree against Smt. Krishna Devi Mehta, sole defendant for the return of gold ornaments or in the alternative for the recovery of Rs. 5 lakhs (the market value of the property). The plaint proceeds on the following allegations :- .
(2) That the plaintiff is the son of late Shri Ramji Lal Mehta. Shri Ramji Lal Mehta, after his death, besides immovable properties left behind the movable properties detailed in Annexure 'A'. That on 8-1-1984 Shri Ramji Lal Mehta made his last will wherein it was provided as under :- "I will and devise that after my demise my properties immovable and movable and real and in corporal vest in my son Mr. P. C. Mehta". According to the plaintiff there is a reference of the gold ornaments bequeathed to the plaintiff also in the will dated 3-12-1984 of late Smt. Tulsi Devi Mehta wife of Shri Ramji Lal Mehta, wherein it is stated as under :- OUR200 tolas of gold ornaments are lying in trust with sister Smt. Krishna Devi Mehta (defendant). These be taken back by you (plaintiff, P.O. Mehta)".
It is stated that the plaintiff had approached the defendant social times after the death of his parents namely-Ramji Lal Mehta and Smt. Tulsi Devi Mehta for the return of gold ornaments but she is not returning the same. Here this suit. The smt was instituted’ on 5-1-1987. On 2-2-1987 the plaintiff moved an application under Order 22 Rule 4’C.P.C. (being LA. 67111987) was instituted on 5-1-1987. On 2-2-1987 the plaintiff moved an made parties and the plaintiff may be allowed to continue with the suit. It was stated in the application that the plaintiff had reliably learnt that the defendant had died at London about a month ago (the exact date is not known to the plaintiff). The right to sue survives in favor of the plaintiff and against the defendant and the legal representatives of the defendant may be brought on the record. One of the legal heirs is stated to be Shri Vishwa Nath Mehta, son of the deceased defendant.
(3) The application is being contested on behalf of Shri Vishwa Nath Mehta. He has also filed an application under Order 7 Rule 11 and Order 22 of the Code cr Cv)l Procedure seeking rejection of the plaint and dismissal of the suit inter alia on the grounds that the suit was filed on 5-1-1987 whereas the defeadant, Smt. Krishna Devi Mehta died on 31-10-1986 and obviously the suit had been filed after the death of the defendant. The suit against a dead person is a nullity and the name is void and is of no legal effect. It is prayed that the plaint may be rejected and the suit dismissed with costs.
(4) In the rejoinder filed by the plaintiff to the reply filed by Mr. Vishwa Nath Mehta it is stated that the suit of, the plaint is neither a nullity nor void a alleged. The plaintiff was not aware of the death of the defendant at the time of institution of the suit. The plaintiff only learnt by the end of January 1987 from the grandson of the deceased defendant about the death of the defendant According to the information received by the plaintiff tile defendant died somewhere in London (England) and the proposed legal representatives were not imp leaded as defendants by bona fide .mistake.lt is stressed that the suit was validly instituted and was maintainable.
(5) I have heard the learned counsel for the parties and have given my thoughtful consideration to the matter involved.
(6) In support of his contention the learned counsel for the plaintiff has placed reliance on the following authorities.
(7) R. Rajyalakshmamma v. R. Kannaiah . In this case it was held that the suit filed against the sole defendant who. was dead even by the date of institution of the suit was not void ab initio and could be continued against the legal representatives of the deceased-defendant if their substitution was made within the period of limitation for the suit.
(8) The next authority relied upon is Ramjeewan v. Chand Mohammed ; . In this case a regular second appeal was filed against one Chand Mohammed who bad died during the pendency of the first appeal and as legal representatives had been brought on record. By mistake the cause title in the lower appellate court not amended and the decree sheet drawn mentioned the name of Chand Mohammed as appellant instead of his legal representatives. This error resulted into filing the second appeal against Chand Mohammed, a dead person. After enquiry from his client counsel filed an application on 27-3-1978 for deleting the name of Chand Mohammed and for impleading the name of his legal representatives as respondents in the appeal. The application under Section 5 of the Limitation Act was also submitted for condensation of deley. The application was allowed on the ground that the appellant had been able to make out a sufficient cause for filing the appeal against Chand Mohammed, who was dead on the date of filing of the appeal.
(9) This authority does not help the plaintiff because in this case the suit was legally instituted and by mistake the cause title in the lower appellate court was not amended by substituting the names of the Legal Representatives of the deceased, Chand Mohanimed. under those circumstances the court held it to be a sufficient cause under Section 5 for condoning the delay for treating the legal representatives of the deceased as respondents.
(10) The next authority is Smt. Prempiari & Others v. Dukhi & another ; . This was also a case wherein appeal was filed against a dead person. It was held that when the appeal is filed against a dead person it is still born appeal and the provisions of Order 22 would not apply and if an application is made for substituting the legal heirs of the deceased who died prior to the institution of appeal, the appeal would be taken to have been filed on the date of the application and if the appeal is by that time barred by time, the appellant can invoke the aid of Section 5 of the Limitation Act to get the delay condoned. This authority also does not help the plaintiff as it relates to filing of appeal against a dead person and condensation of delay under Section 5 of the Limitation Act
(11) The next authority relied upon is K. Ismail v Pavu Amma ; (4). In this case a suit was filed against certain defendants who were dead at the time of filing it. The court in ignorance of that fact and on the assumption that they were alive on the date of the suit ordered their legal representatives to be brought on record on the application of the plaintiff The suit was not time barred as against the legal representatives on the date of application for impleading them as legal representatives. A decree was passed against these new defendants. In those circumstances it was held that the plaint could be considered as freshly instituted against the new defendants on the date when the application for impleading them was filed and hence the decree could not be said to be void ab initio. This authority also does not help the plaintiff.
(12) The next authority relied upon is Bysani Krishnaiva Chetty v. Mr. Varadachari ; . In this case the question involved was regarding condensation of delay hi filing the application for bringing the legal representatives of a party on the record. The court was concerned with whether under the circumstances a case had been made out for condensation of delay or not. This authority doe? not help the plaintiff.
(13) The last authority relied upon by the counsel for the plaintiff is Ashgari Bibi v. Shamal Kumar; . In this case Abdul Rehman the plaintiff’s father was a Thika Tenant under the defendants No. 1 & 2 in respect of the property in suit. He died on November Ii, 1954 at Dacca leaving the plaintiff and the defendants 3 to 5 as his legal heirs. About three long years after his death the defendants 1 & 2 filed a suit for eviction against him and his two brothers as defendants No. 2 & 3. Subsequently the name of Abdul Rehman was expunged and the plaintiff and his brothers and other legal heirs were added as parties in his place. The defendants 1 & 2 obtained an ex parte decree in that suit. The plaintiff filed a suit for setting aside ‘the ex parte decree passed against her. The suit was decreed by the Munsif. Against this judgment the appeal was allowed and the judgment of the Munsif was set aside. Thereafter the plaintiff filed a second appeal. It was contended on behalf of the plaintiff that Abdul Rehman having died before the institution of the suit there was absolutely no scope for bringing his legal heirs on record and the suit ought to have failed on the ground that it was filed after his death. In dealing with that situation the court observed that the name of Abdul Rashman was expunged as it was discovered that he had died before the institution of the suit. Being a joint tenancy it Was necessary to add his legal heirs as parties so that the, tenancy could be fully represented. However, had Abdul Rehman been the sole defendant the matter would have been different because in that case there would have been no question of pining or adding his legal heirs. It was further observed that no question of substitution or even addition of legal heirs would arise when the sole defendant against whom the suit is filed was not surviving on the date of its institution.
(14) The authority relied upon by the plaintiff rather fully supports the case of Mr. Vishwa Nath Mehta. This authority also holds that in case there is a sole defendant who is dead at the time of institution of the suit, the question of substitution or even addition of legal heirs would not arise.
(15) On the other hand the learned counsel for Mr. V. N. Mehta has placed reliance on the following authorities in support of his contention that the suit .filed against a dead person. is a nullity and the plaintiff cannot be allowed subsequently to amend the suit and to substitute his legal representatives in place of the defendant.
(l6) Hira Lal Patniv.Sri Kali Nath ;. In that case it was’ observed that the validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it would not have seism of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree paused.
(17) The next authority relied upon by the learned counsel for the defendant is Prestige Fin. P. Ltd. v. Balwant Singh ; (1978 Rajdhani Law reporter 246)(8). In this case it was observed as under :-. .. that if a suit is filed against a dead person then it is a nullity and you cannot join any legal representatives; you cannot even join any other party, because, it is just as if no suit had been filed. On trie other hand, if a suit has been filed against a number of persons, one of whom happens to be dead when the proceedings were instituted, then the proceedings are not null and void, but the court has to strike out the name of the party who has been wrongly joined. If the case has been instituted aginst a dead person and that person happened to be the only person then the proceedings are nullity and even Order I Rule 10 or Order 6 Rule 17 cannot be availed of to bring about anamendment.”
(18) In Sisir Kumar Tarafdar v. Manindra Kumar Biswas; . It was held as under :– lt.must therefore beheld that the power given to the court under sub-rule (2) of Rule 10 of Order 1 of the Code of Civil Procedure to add a party contemplates only those cases where there is somebody else as plaintiff or defendant and the effect of bringing on record another person as plaintiff or defendant would be really a case of addition’ of plaintiff or defendant. A case of mere substitution as distinct from addition is not contemplated in sub-rule (2)”
(19) In C.Muttu v. Bharath Match Works; (AIR 1964 Mysore 293)(10) relying upon Hira Lal’s case (supra) i was held that a suit against a dead person’s anullity. Where it is later on discovered that the person against whom the suit was filed was dead when it was filed, no amendment can be allowed for substitution of another person.
(20) In Roop Chand v. Sardar Khan and others; (AIR 1928 Lahore 399)(ll) a Division Bench of the Lahore High Court held that in case the suit had been brought against one defendant only who had admittedly died before the institution of the suit there was really no suit properly instituted and that there was nothing in the Civil Procedure Code to authorise a Court to allow the plaint in such a case to be amended by substituting the names of the representatives of the deceased, even though the suit had been instituted bona fide and in ignorance of the death of the defendant. The position however, is quite different where the deceased person is not the sole defendant but is one out of a large number of defendants,
(21) In Municipal Council, Calicut v. Thazhel Puthan Puravil Kunhi pathumma and another; it was held that where the plaint is filed against a person who is in fact dead no application by way of amendment or bringing on record legal representatives can be validly made because the whole proceeding is void and has no effect whatsoever.
(22) In Joginder Smghy. KrishanLal; it was held that the question of substituting the legal representatives of only such a person under Order 22 Rule 4 can arise who was alive at the time when the suit was instituted and has died during the pendency of the suit. The case of a person who had died before the institution of the suit or the appeal, and who was erroneously imp leaded as a party, does not fall within the purview of Order 22 of the Code: Whether tile amendment to substitute legal representatives is made under Order I Rule 10(2) or under section 153 Civil Procedure Code would not make any material difference.
(23) In All Mohd. Khan v. Vijay Tulsi relying upon the pronouncement of the Supreme Court in Hira Lal’s case (supra) it was held that where a suit b filed against a dead person it is a nullity and the plaintiff cannot be allowed subsequently to amend the suit and substitute the legal representatives in place of the defendant.
(24) I have considered the relevant contentions of the parties. The contention of the learned counsel for Mr. Vishwa Nath Mehta has force and it should prevail. Suit cannot be filed against a dead person. In view of the pronouncement of the Supreme Court in Hira Lal’s case (supra.) and in view of the various other High Courts relied upon by the learned counsel for Mr. Vishwa Nath Mehta I am of the considered opinion that the suit against a dead person is a nullity and the plaintiff cannot be allowed subsequently to, amend the suit and substitute the legal representatives in place of the defendant. I fully agree with the reasoning given in these judgments.
(25) I hold that the suit filed against the sole defendant, Ms. Krishna Devi Mehta is a nullity and the plaintiff cannot be allowed subsequently to amend the suit and substitute the legal representatives in place of the defendant. The application of the plaintiff under Order 22 Rule 4 Civil Procedure Code (being IA. 671187) fails and is dismissed. The application of Mr. Vishwa Nath Mehta under Order 7 Rule 11 & under Order 22 Civil Procedure Code (bemg I.A 319111987) is allowed. The result is that the suit filed by the plaintiff against a dead person is a nullity and the same is dismissed. No order as to costs.