Calcutta High Court

Jaidev Mullick vs Radhanath Mullick on 25 July, 2025

                                           1

 OD-5
                         IN THE HIGH COURT AT CALCUTTA
                                   ORIGINAL SIDE
                          Ordinary Original Civil Jurisdiction


                                 IA NO. GA./10/2024
                                         In
                                   CS/2729/1968

                    JAIDEV MULLICK VERSUS RADHANATH MULLICK



 Before:
 The Hon'ble Justice BISWAROOP CHOWDHURY
 Date: 25th JULY 2025

                                                                                   Appearance:
                                                                     Ms. Anjana Sen Gupta, Adv.
                                                                        ...for the defendant no.5
                                                                     Mr. Siddhartha Lahiri, Adv.
                                                                          Mr. Debraj Dutta, Adv.
                                                            .....for the defendant nos. 6(c) & (d)
                                           .

The Court: This application is filed by daughter of defendant no-5 praying for the

following orders:

a) Death of the defendant No. 5. Amar Kumar Mallick and his widow be

recorded.

b) The name of the legal heirs as mentioned in Affidavit in support of the

Master Summons be substituted by way of amendment as shown in place

and stead of Defendant No-5 Amal Kumar Mallick since as shown in red ink

in annexure 'D'.

c) The Applicant as mentioned in paragraph 2 be allowed to re-verify and

affirm the instant plaint filed in C.S. No. 2729 of 1968.

d) Department be directed to carry out the amendment within two weeks from

the date of the order made.

e) Costs of and/or incidental to this application be paid by the Defendants.

f) Such further or other order or orders be passed and/or direction or,

directions be given as this Hon'ble Court may deem fit and proper.

It is contention of the applicant that she is the daughter of defendant no. 5

Amar Mullick and deceased defendant No-5. It is contended that on 01.04.1971 the

defendant No.5 died leaving behind him the following heirs in accordance with the

provision of the Hindu Succession Act 1956.

a) Amala Mullick (widow)

b) Nilima Mullick daughter (Minor).

c) Tapan Mullick son (Minor).

It is further contended that Defendant no-5 died on 1st April 1971 more than

fifty years have passed but the plaintiffs in the suit did not take any step for

substitution so the legal representative of Defendant no-5 have filed this application.

It is also contended that after death of defendant No. 5 his widow informed her

Learned Advocate Bimal Kumar Mitra (deceased) about death of her husband. As the

widow of Defendant no. 5 who was ignorant about the Court Procedure and believed

in good faith that her Learned Advocate will take necessary step for filing substitution

application. So she did not make any enquiry regarding this matter.

It is contended that the widow of defendant No. 5 Amala Mullick passed away

on 4th February 2021. A few days before her death she came to know that her

Learned Advocate Bimal Kumar Mitra is no longer in this world. It was also the

assumption of the daughter and son of defendant no-5 who are now major and

suijuris that substitution application is filed and they are substituted in place of

their deceased father. It is further contended that the daughter of defendant no. 5 is

housewife and ignorant about law and his son who is residing at New Delhi could not

collect any information about substitution after their mother's death. It is also

contended that at the end of the year 2023 they came to know from the concerned

Department of this Court at the time of filing vokalatnama on behalf of them that no

substitution application has been filed and as such there is a delay in filing

application for substitution.

The defendant no. 6(c) has contested the application by filing Affidavit in

opposition.

It is contended by the defendant no. 6(c) that Pursuant to the death of Amar

Kumar Mullick his widow Amala Mullick and his son Tapan Mullick and his daughter

Nilima Mullick was duly substituted. It is further contended that regarding death of

Amala Mullick no intimation was given to the Plaintiffs thus the suit has abated with

regard to Amala Mullick.

It is also contended that Amala Mullick had adapted Christianity thus the

applicants are not entitled to her share.

The applicant has denied the contentions made in the affidavit in opposition

and reiterated the contentions made in the application. It is specifically contended

that Amala Mullick was Hindu and the applicant and her brother are also Hindu.

Heard Learned Advocate for the applicant and Learned Advocate for the

defendant no-6 perused the petition filed and materials in record.

Before proceeding to decide the material in issue it is necessary to consider the

provisions contained in Order XXII Rule 2, and Rule 4 of the Code of Civil Procedure.

Rule 2 and Rule 4 of Order XXII of Code of Civil Procedure Provide as follows:

Rule-2 Where there are more plaintiffs or defendants than one and any one of

them dies, and where the right to sue survives to the surviving plaintiff as plaintiff

alone, or against the surviving defendant or defendant alone, the Court shall couse

an entry to that effect to be made on the record and the suit shall proceed at the

instance of the surviving plaintiff or plaintiffs or against the surviving defendant or

defendants.

Rule-4 1) Where one of two or more defendants dies and the right to sue does

not survive against the surviving defendant or defendants alone, or a sole defendant

or Sole surviving defendant dies and the right to sue survivives, the Court on an

application made in that behalf, shall cause the legal representative of the deceased

defendant to be made a party and shall proceed with the suit.

2) Any person so made a party may make any defence appropriate to his

character as legal representative of the deceased defendant.

3) Where within the time limited by Law no application is made under Sub-rule

(1) the suit shall abate as against the deceased defendant.

Upon considering the provision contained in Rule 10 Rule 2 and Rule 4 it will

appear that as the suit could not be proceeded against surviving defendants without

substitution of heirs of deceased defendant no-5 the suit is to abate so far the

defendant no-5 is concerned, however in reality in cannot be so, due to the reason

that the suit being a partition suit.

In a partition suit the plaintiff does not claim relief only for himself but also for

the defendants as both the plaintiffs and defendants are stated to be co-sharers of

the suit property. Thus the plaintiffs are not mere claimants but also representatives

of the defendants. Thus it is the duty of the plaintiff to bring the legal representatives

of deceased defendant on record, by making necessary application. In the event there

is negligence on the part of plaintiff to bring the legal representative of a deceased

party in a partition suit on record the Court may in exercise of power under Order 1

Rule 10(2) of the Code of Civil Procedure add the legal representatives of the deceased

party.

In the case of Probhat Chandra VS Rabindra Nath reported in AIR-1960 Cal

291 Learned Judge of this Court observed as follows:

7. There are however certain classes of suits in which a defendant is equally

interested. Such are for example partition or administration suits. In such suits the

decree passed enures not merely for the benefit of the plaintiff but for the benefit of the

defendants as well. It is because of this that it is stated that in a partition suit

everybody including the defendants are in the position of the plaintiff If such a suit for

partition abates by reason of the death of one of the defendants, when the proceedings

have far advanced and have reached almost the journey's end, is the Court powerless

to save the suit if the plaintiff or his legal representative as the case may be refuses to

apply to set aside abatement? In such cases even though the defendant has been given

no power to make an application to set aside the abatement, the Court has inherent

power to set aside abatement and enable the suit to be proceeded with. The Court

should exercise this inherent power to save the parties, the trouble and costs of a

second partition suit and traverse the grounds already traversed. That the Court has

this inherent power and should exercise it in appropriate cases has been recognised by

the Madras High Court and the Bombay High Court in cases to be noticed presently.'

In the case of Morasa Anjaiah VS Visveswar reported in AIR-1993 AP-156 the

Hon'ble Court observed as follows:

15. It may be noted that the Rules of Procedure contained in the Code of Civil

Procedure have been enacted to do justice to the parties before the Court. The

provisions of the Orders and the Rules do not affect the inherent powers of the Court.

But the inherent powers can be invoked only when there is no specific provision in the

Code.

16. We shall no refer to the cases cited at the Bar. M. Ramakrishna Reddi v. R.

Narasimha Reddi, AIR 1932 Mad 527:-- In that case a Division Bench of the Madras

High Court held that where a respondent's legal representative wishes to come on

record, he should apply by a petition under Order 22, Rule 4, but he need not apply for

setting aside the abatement because it was the appellant's appeal that abated against

him. But however, the Court while allowing the petition filed by him under Order 22,

Rule 4 set aside the abatement, (probably under the inherent power of the Court).

17. Mahommedally v. Safiabai, AIR 1940 PC 215. That case arose of a suit for

administration. One of the defendants in the said suit died, but no application was

made by the plaintiff to bring his heirs on record. However, the legal representative

herself filed an application to come on record in place of her mother. That application

was allowed under Order 1, Rule 10, C.P.C. It was held:

"Their Lordships are of opinion that it is open to the Judge in his discretion under

Order 1, R. 10, to add as party to the suit the representative of a person against whom

the suit has abated for the purpose of giving effect to the rights of the parties. The

contention that the plaintiff's suit had abated as a whole is fundamentally mistake."

23. In K. Ramayyav. C. Chennarayappa, (1974) 1 An WR 149 the question

before Ramachandra Rao, J. (as he then was) was whether in a partition suit if the

plaintiff fails to bring on record the legal representatives of one deceased co-sharer

(defendant) under the provisions of Order 22, can he file an application under O.1, Rule

10, C.P.C. to implead them as parties. The learned Judge answered the question in

affirmative holding that the legal representatives of the deceased co-sharer could be

impleaded as parties under O.1, R. 10, C.P.C. in a suit for parties without invoking the

provisions of Order 22, Rules 3 and 4, C.P.C.

24. In Khalil Ahmad v. Addl. District Judge, Gorakhpur, , the suit was filed for

redemption of mortgage. During the pendency of the suit one of the mortgages-

defendants died and the application for bringing the heirs under Order 22, Rule

4, C.P.C. was dismissed as time barred. Then an application was moved under Order

1, Rule 10, C.P.C. to implead the legal representatives of the deceased defendant as

party-defendants. A Division Bench of the Allahabad High Court held that the order of

the trial Court allowing the petition does not suffer from any error of law or jurisdiction.

It held that Order 22, Rule 4 gives a party a right to get the legal representatives

brought on record; Rule 9 of Order 22 bars the institution of a fresh suit on the same

cause of action; The effect of Rules 4 and 9 of Order 22, C.P.C. is to abate the suit

against the deceased and to take away the plaintiff's right to institute a fresh suit

against his legal representatives; this however does not mean that the suit cannot

continue with the parties as they remain and are subsequently added under some

other provision of law, and that Order 22, Rule 9, C.P.C. affects the rights of a party

but does not take away the right of the Court to bring on record any person whom the

Court considers necessary for effectually adjudicating upon and settling of the question

involved in the suit. This judgment was followed by another learned single Judge of the

same High Court in Farooq v. Moti Lal, . Seetharam Reddy, J. (as he then was) in K.

Savithri v. Chinayamma, 1988 (1) ALT 528, held that on an application under O.1, Rule

10, C.P.C. the legal representatives of the plaintiff in a mortgage suit can be brought on

record even though the application to bring on record the legal representatives of the

deceased was dismissed on the ground of laches.

In the case of Pooranchand and others V Shriram and others reported in AIR-

1963 Raj. 245 wherein it is observed as follows:

'Order 22 Rule 3 does not apply to cases of death of the Plaintiff after the

preliminary decree. After the preliminary decree the right to sue does not survive and

there can be no abatement of the suit in such a case. AIR 1930 All. 779 and AIR.

1931. All 490 (FB). Dissented from AIR-12928 Mad. 914(FB) and AIR. 1949 Bam 318.

AIR-1942 Pat 340, AIR-1945 Pat 380, AIR 1947 Nag 75 and AIR. 1952 Cal 579. Rel

an."

In the case of Shub Karan Bubna alias Shub Karan Prasad Bubna V Sita

Saran Bubna and others reported in 2009 (9) SCC. P-689 the Hon'ble Apex Court

observed as follows:

'Once a court passes a preliminary decree, it is the duty of the court to ensure

that the matter is referred to the Collector or a Commissioner for division unless the

parties themselves agree as to the manner of division. This duty in the normal course

has to be performed by the court itself as a continuation of the preliminary decree.

There is a fundamental difference between mortgage Suits and partition Suits.

A preliminary decree in a mortgage Suit decides all the issues and what is left out is

only the action to be taken in the event of non-payment of the amount. When the

amount is not paid the Plaintiff gets a right to seek a final decree for foreclosure or

for sale. On the other hand, in a partition Suit the preliminary decrees only decide a

part of the Suit and therefore, an Application for passing a final decree is only an

Application in a pending Suit, seeking further progress. In partition Suits, there can

be a preliminary decree followed by a final decree, or there can be a decree which is a

combination of preliminary decree and final decree or there can be merely a single

decree with certain further steps to be taken by the Court. In fact, several

applications for final decree are permissible in a partition Suit. A decree in a partition

Suit ensures to the benefit of all the co-owners and therefore, it is sometimes said

that there is really no judgment-debtor in a partition decree. Therefore, the concept of

final decree in a partition Suit is different from the concept of final decree in a

mortgage Suit. Consequently, an Application for a final decree in a mortgage Suit is

different from an Application for final decree in partition Suits."

As this suit being a partition suit the question of abatement does not arise in

view of the Judicial decisions relied upon. Moreover the death of the defendant took

place when preliminary decree was already passed. Thus there is hardly any right

which is yet to be decided save and except partition by metes and bounds in

accordance with the shares after bringing into record legal heirs of deceased

defendant no-5.

With regard to the contention of the defendant no. 6(c) that Amala Mullick

became Christian this Court is unable to accept such contention in absence of any

document, in this regard.