Case Note & Summary
The case arose from a dispute between two women, Anita Anant Patil and Malini Anant Patil, each claiming to be the legally wedded wife of the deceased Anant Patil, who died on 28 March 1997. Both filed Civil Miscellaneous Applications No. 19 of 2008 and 20 of 2008 seeking an Heirship Certificate under Section 2 of the Bombay Regulation Act 8 of 1827 to claim pensionary benefits. The learned Civil Judge Senior Division, Sindhudurg, granted the certificate to Anita and refused it to Malini by order dated 24 November 2009. Malini appealed to the District Judge, who allowed the appeal and directed issuance of the certificate to Malini, setting aside the order in favor of Anita. Anita then filed a Second Appeal before the Bombay High Court. During the pendency of the appeal, Anita died on 9 July 2017. An application was filed to bring her legal representatives on record, which was opposed by the respondent. The sole question before the court was whether the right to sue survived after the death of the appellant. The court examined Order 22 Rule 3 of the Code of Civil Procedure, 1908, which provides that where a plaintiff dies and the right to sue survives, the court shall cause the legal representative to be made a party. The court noted that the proceeding was for grant of an heirship certificate, which is a personal right claimed by the applicant. Upon the death of the appellant, the right to claim the certificate did not survive, as the certificate was sought for the benefit of the claimant herself. The court held that the application to bring legal representatives was liable to be dismissed and the appeal abated. Consequently, the court dismissed the application and disposed of the appeal as abated.
Headnote
A) Civil Procedure - Abatement of Appeal - Order 22 Rule 3 CPC - Right to Sue - In a proceeding for grant of heirship certificate under the Bombay Regulation Act 8 of 1827, the right to sue is personal to the claimant and does not survive upon her death. The Court held that the application to bring legal representatives on record was liable to be dismissed as the right to sue did not survive. (Paras 2-6)
Issue of Consideration
Whether, after the death of the appellant, the right to sue survives in a proceeding for grant of heirship certificate under the Bombay Regulation Act 8 of 1827.
Final Decision
The application (Civil Application No. 375 of 2018) is dismissed. The appeal (Second Appeal No. 303 of 2016) is disposed of as abated.
Law Points
- Order 22 Rule 3 CPC
- right to sue survives
- abatement of appeal
- heirship certificate
- personal right
Case Details
2019 LawText (BOM) (03) 213
Civil Application No. 375 of 2018 in Second Appeal No. 303 of 2016 alongwith Civil Application No. 1941 of 2015
Mr. Amit S. Kapse for the appellant, Mr. Sudhir Prabhu for the respondent
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Nature of Litigation
Civil application for bringing legal representatives on record in a pending second appeal arising from a dispute over grant of heirship certificate.
Remedy Sought
The appellant's legal representatives sought to be brought on record to continue the second appeal.
Filing Reason
The appellant died during the pendency of the second appeal, and an application was filed to substitute her legal representatives.
Previous Decisions
The Civil Judge Senior Division granted heirship certificate to Anita; the District Judge allowed the appeal and granted certificate to Malini, setting aside the order in favor of Anita.
Issues
Whether the right to sue survives after the death of the appellant in a proceeding for grant of heirship certificate under the Bombay Regulation Act 8 of 1827.
Submissions/Arguments
The appellant's advocate argued for bringing legal representatives on record.
The respondent opposed the application, contending that the right to sue did not survive.
Ratio Decidendi
In a proceeding for grant of an heirship certificate under the Bombay Regulation Act 8 of 1827, the right to sue is personal to the claimant and does not survive upon her death. Therefore, under Order 22 Rule 3 CPC, no substitution of legal representatives is permissible, and the appeal abates.
Judgment Excerpts
The question is, Whether, after the death of the appellant, Anita Anant Patil, the right to sue survives or not ?
In terms of the provisions of Order 22 Rule 3 Civil Procedure Code, where one of two or more plaintiffs dies and the right to sue survives, the Court on an application made in that behalf shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit (emphasis supplied).
Procedural History
Anita and Malini filed Civil Miscellaneous Applications No. 19 of 2008 and 20 of 2008 for Heirship Certificate under Bombay Regulation Act 8 of 1827. The Civil Judge granted certificate to Anita on 24 November 2009. Malini appealed to the District Judge, who allowed the appeal and granted certificate to Malini. Anita filed Second Appeal No. 303 of 2016 in the Bombay High Court. During pendency, Anita died on 9 July 2017. An application (Civil Application No. 375 of 2018) was filed to bring legal representatives on record, which was opposed. The High Court dismissed the application and disposed of the appeal as abated.
Acts & Sections
- Code of Civil Procedure, 1908: Order 22 Rule 3
- Bombay Regulation Act 8 of 1827: Section 2
