Kerala High Court
Soumya S vs Shan P.G. (Died) on 29 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
MAT.APPEAL NO. 663 OF 2014
AGAINST THE JUDGMENT IN OP 381/2010 OF FAMILY COURT,
THIRUVALLA, PATHANAMTHITTA
APPELLANT/PETITIONER:
SOUMYA S.
AGED 25 YEARS
PUTHUVANAPUTHEN VEEDU, KURAVANKUZHY P.O., PULLAD,
KOIPROM VILLAGE, THIRUVALLA TALUK.
BY ADVS.
SRI.T.P.PRADEEP
SRI.P.K.SATHEESH KUMAR
RESPONDENT/RESPONDENT:
1 SHAN P.G. (DIED)
AGED 30 YEARS
S/O.SUMATHIKUTTIYAMMA, PUTHETTU HOUSE, PULLOPRAM
P.O., ANGADI VILLAGE, RANNY TALUK - 689 676.
2 SHYN P.G
AGED 34 YEARS
S/O.SUMATHIKUTTIYAMMA, PUTHETTU HOUSE, PULLOPRAM
P.O., ANGADI VILLAGE, RANNY TALUK - 689 676.
3 SUMATHIKUTTIYAMMA
PUTHETTU HOUSE, PULLOPRAM P.O., ANGADI VILLAGE,
RANNY TALUK - 689 676.
BY ADV SRI.V.SETHUNATH
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY ON
29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Mat.Appeal No.663 of 2014 2
C.R
A.MUHAMED MUSTAQUE &
SOPHY THOMAS, JJ.
------------------------------------
Mat. Appeal No.663 of 2014
------------------------------------
Dated this the 29th day of October, 2021
JUDGMENT
Sophy Thomas, J.
This is an appeal preferred by the petitioner in
O.P No.381 of 2010 of Family Court, Thiruvalla against the
judgment and decree dated 17.05.2014.
2. The appellant/wife filed the above O.P for recovery of
patrimony. The Family Court allowed the O.P in part, permitting the
appellant to realise Rs.50,000/- with interest at the rate of 8% per
annum from the date of the petition till realisation and also to get
back the movables or its equivalent value Rs.36,000/- from
respondents 2 and 3 who are the brother and mother of her
deceased husband. The 1st respondent-husband is no more and the
lower court ordered that the case against him was abated, as no
steps were taken by the appellant/petitioner to implead his legal
heirs. Aggrieved by the judgment and decree, the appellant
preferred this appeal alleging that she has to get back
Rs.3 lakh being the patrimony amount, and Rs.65,000/- deposited
by her father in her bank account which was subsequently paid to
the 1st respondent along with 92 sovereigns of gold ornaments or
its equivalent value, and also the movables or its equivalent value
Rs.68,000/-. According to her, respondents 1 to 3 and their assets,
are to be held liable for her claim.
3. The 2nd respondent, who is the brother of her deceased
husband, admitted receipt of Rs.50,000/- from the father of the
appellant to meet the marriage expenses. The 3 rd respondent,
mother of respondents 1 and 2, was admitting entrustment of an
Air Conditioner, Nilavilakku and dinner set worth Rs.36,000/- in
total. Accordingly, a decree was passed to that extent against
respondents 2 and 3, and no decree was passed against the 1 st
respondent or his assets finding that, case against him was abated.
Now the short question to be considered is whether the case
against the 1st respondent will abate for want of steps from the side
of the appellant/petitioner to implead his legal heirs.
4. Admittedly, during the pendency of O.P No.381 of 2010,
the 1st respondent/husband passed away on 22.08.2010. On
26.10.2010 itself, the death of the 1 st respondent was reported
before the Family Court. On 21.01.2011, the Family Court recorded
the case against the 1st respondent as abated, as no steps were
taken. In the impugned judgment, the Family Court observed that
some of the ornaments owned by the wife might have been
entrusted with her husband, and though it was clear from Exts.A3
to A7 documents, that he had either sold or pledged her gold
ornaments, since the case against him was abated, no decree could
have been passed against him. Now we have to find out whether
the abatement recorded against the 1 st respondent was proper or
legal.
5. Order XXII CPC deals with abatement, on party's death.
Order XXII Rule 1 CPC says that death of a plaintiff or defendant
shall not cause the suit abated if the right to sue survives. Order
XXII Rule 2 CPC reads as follows:
"2. Procedure where one of several plaintiffs
or defendants dies and right to sue survives:
Where there are more plaintiffs or defendants
than one, and any of them dies, and where the right to
sue survives to the surviving plaintiff or plaintiffs alone,
or against the surviving defendant or defendants alone,
the Court shall cause 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".
6. In the case in hand, the 1 st respondent died on 22.08.2010.
Respondents 2 and 3 are his brother and mother, and it was evident
from their address itself. Moreover, since the O.P being a
matrimonial dispute, the relationship between the parties were so
explicit in the pleadings itself. The Family Court, without causing an
entry to the effect that the right to sue survives and the legal heirs
of the 1st respondent are already in the party array, proceeded to
record that the case against the 1 st respondent abated as no steps
were taken by respondents 2 and 3. Respondents 2 and 3 filed a
memo on 14.03.2012 stating that the appellant-wife and the
3rd respondent mother are the only legal heirs of the deceased 1 st
respondent, and no other persons are there to be impleaded. Even
after receiving that memo, the Family Court proceeded to
pronounce the judgment on 17.05.2014, treating the case against
the 1st respondent as abated.
7. The Family Court went wrong in recording that the case
against the 1st respondent abated even when the right to sue
survived and his legal representatives were already on record. It is
true that no memo was filed by the appellant within the statutory
period, reporting that the legal heirs were already on the party
array, and no other persons are there to be impleaded. Even if no
application for impleading the legal heirs was made within the
statutory period of limitation, when at least one of the legal
representatives was already on record, and the right to sue
survived, the proceedings will not abate as it was held in Mahabir
Prasad vs. Jage Ram and others ((1971) 1 SCC 265). This
Court has held in K.G.Kuruvila vs. Dy. Collector (L.A) and
another reported in 2007 KHC 5319 that even if there is no formal
recording of a person as the legal representative of the deceased,
that would not be a sufficient ground to hold that there was
abatement, if really there was no abatement in law. Since
respondents 2 and 3, the only legal heirs of the 1 st respondent,
were already in the party array, the estate of the deceased was
substantially represented, and so there was no abatement at all.
8. When the legal representatives of the deceased are
already in the party array, the question of recording is only a
matter of procedure, and any irregularity in the matter of procedure
would not affect the principle of law, as to abatement. Even if no
formal application was made to record the legal representative of
the deceased, who was already in the array of parties, there would
be no abatement. The delay in filing a memo to record the
appellant-wife and the 3rd respondent as the legal heirs of the
deceased 1st respondent, will not empower the court to record
abatement, as the right to sue survived and the legal
representatives, representing the estate of the deceased were
already on the party array.
9. Order XXII Rule 2 CPC requires the court to cause an entry
to be made on the record to the effect that the suit survives against
the surviving defendant or defendants. It was not necessary to
implead them again, for substituting them in a different capacity as
the legal representatives of the deceased. In Parameswaran
Padmanabhan Nambi vs. Ramakrishna Iyer Raghava Iyer
reported in 1952 KLT 103, a Division Bench of this Court held that
the Civil Procedure Code does not provide for any application being
made in that behalf, and even an oral intimation will be sufficient.
There is nothing in the Civil Procedure Code to support the view
that the failure to give the intimation, and the consequent omission
on the part of the court to make the entry as required by Rule 2 of
Order XXII CPC, will make the decree a nullity.
10. The Family Court was intimated about the death of the 1 st
respondent on 26.10.2010 and ignoring the fact that the right to
sue survived, and his legal heirs were already in the party array,
the court proceeded to record that the case against the 1 st
respondent abated, and hence it was not legal or proper. So we
find that the O.P against the 1 st respondent will not abate as his
estate was substantially represented by his legal heirs who were
already in the party array.
11. Pending appeal, the 3rd respondent, mother also died. A
memo was filed to the effect that the 2 nd respondent is the only
legal representative of the deceased respondents 1 and 3. As we
have found, the 1st respondent-husband died on 22.08.2010. The
Family Court, on 21.01.2011, recorded that the case against him
was abated for want of steps. The respondents 2 and 3 filed their
written statement on 26.03.2012 i.e. after the case against the 1 st
respondent was recorded as abated. So, obviously, they had not
contested the case as the legal representatives of deceased
1st respondent, and the evidence and documents produced by the
appellant were also not seen challenged by them in that capacity.
In the result, we set aside the impugned judgment and decree
to the extent it dismissed the claim of the appellant, and the case is
remanded back for fresh disposal. The 2 nd respondent is at liberty
to file additional written statement as the legal representative of
the deceased 1st respondent, and both parties are free to adduce
additional evidence in support of their contentions. Since the O.P is
of the year 2010, the Family Court, Thiruvalla is directed to dispose
the case within a period of three months from the date of
appearance of the parties. The parties are directed to appear
before the Family Court, Thiruvalla on 01.12.2021. We make it
clear that we have not set aside the decree granted in favour of the
appellant to realise Rs.50,000/- and to get back movables worth
Rs.36,000/-. Registry is directed to return the LCR forthwith.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SOPHY THOMAS
JUDGE
smp
