Posted On by &filed under High Court, Madras High Court.

Madras High Court
Abdulla Sahib vs Vageer Beevi Ammal And Ors. on 18 July, 1928
Equivalent citations: AIR 1928 Mad 1199, 117 Ind Cas 138
Author: Reilly


Reilly, J.

1. For the appellant here, Abdulla, the only contentions argued are (1) that, as he was brought on record in the Subordinate Judge’s Court out of time as the legal representative of defendant 13, the appeal in that Court .abated because all the legal representatives of defendant 13 were not on record in time and (2) that at least it abated as against Abdulla. The plaintiffs brought on record among others within time Khatissa Bibi as widow of defendant 13; and the Subordinate Judge has found that she was the legally married wife of defendant 13. There was therefore on record within time one proper legal representative of defendant 13. If the plaintiffs had done nothing more and had made no attempt to bring in Abdulla as legal representative of defendant 13, an effective decree could have been made against defendant 13’s estate represented by Khatissa Bibi: see Kadir Mohideen Maracayar v. Muthukrishna Ayyar [1903] 26 Mad. 230. But later on, long out of time, they applied for the addition of Abdulla as an other legal representative of defendant 13 on the ground that he was asserting that he was such. The learned Subordinate Judge on 23rd March 1925 dismissed the plaintiffs’ I. A. No. 10 of 1925 to excuse the delay in their application to bring Abdulla on record. But on the same day by his order on I. A. No. 41 of 1924 he brought Abdulla on record as defendant 13’s legal representative expressing the opinion that application had been made for that purpose in time. There is certainly an apparent inconsistency in these two orders. But I understand the learned Subordinate Judge’s view to have been that, though, if there had been delay, he would not have found reason to excuse it, in fact there was no delay, which would bar the application to bring Abdulla on record.

2. In Shib Dutta Singh v. Karim Baksh A.I.R. 1925 Pat. 561, it was decided that, when in an appeal some of a deceased respondent’s legal representatives are brought on record within time, there is no abatement even though other legal representatives are omitted. That appears to me to be the correct view of the effect of Rule 4 (3), Order 22, Civil P.C. In this particular case the plaintiffs could have proceeded with their appeal and have got an effective decree against defendant 13’s estate without bringing Abdulla on record at all, unless there was any fraud in the procedure, by continuing the litigation behind Abdulla’s back or otherwise. With Khatissa Bibi on record as a respondent there could have been no abatement of the appeal even in the absence of Abdulla. But it has happened that the Subordinate Judge brought Abdulla on record. Without discussing his views of limitation in this connexion it is enough to say that the addition of Abdulla as a party to the appeal can have been only beneficial to the defendants and can have done no harm to Abdulla himself, as, if he had not been there to be heard, the Subordinate Judge’s decision would still have bound defendant 13’s estate in the absence of fraud.

3. The second contention for Abdulla, that the appeal abated as against him in his capacity as one of defendant 13’s legal representatives, appears to me to rest on an entire misconception of a legal representative’s position. If a deceased per-son’s estate is represented sufficiently for an effective decree to be made against it, that decree, so long as it stands, will bind all the deceased’s legal representatives in their capacity as such, whether they are on the record of the proceedings or not.

4. I see no sufficient reason to interfere. The appeal is dismissed with costs.

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