Case Note & Summary
The appeal arose from an order of a learned Single Judge of the Bombay High Court dated 20th March 2013, rejecting the appellant's application to be impleaded as a plaintiff in Suit No. 1240 of 1989. The suit was originally filed by Dominic Francis Pereira on 15th April 1989 against Joseph Pereira and others, seeking declarations regarding the estate of Augustin Pereira, who died on 29th December 1942 leaving a will dated 27th March 1939. Dominic sought removal of Joseph as executor and trustee, appointment of a new trustee, and setting aside of certain property sales. Dominic died during the pendency of the suit. The appellant, claiming under a will of Thierry (Dominic's son) and an assignment from Dominic, sought to be impleaded as a plaintiff. The learned Single Judge rejected the application, holding that the suit was a personal action by Dominic which abated upon his death. The Division Bench, however, found that the suit was for administration of the estate of Augustin Pereira, not a personal action. The prayers for removal of executor, appointment of trustee, and setting aside of sales were actions for the benefit of the estate, which do not abate on the death of the plaintiff. The court held that the suit had not abated and that the appellant's impleadment application should be considered on its merits. The appeal was allowed, the impugned order was set aside, and the Chamber Summons was restored for fresh consideration.
Headnote
A) Civil Procedure - Abatement of Suit - Personal Action vs. Estate Administration - Suit for administration of estate does not abate on death of plaintiff - The suit sought removal of executor, appointment of new trustee, and setting aside of sales of estate properties, which are actions for administration of estate, not personal to the plaintiff - Held that the suit is for administration of estate and does not abate (Paras 1-5). B) Civil Procedure - Impleadment - Order 1 Rule 10 CPC - Application for impleadment as plaintiff - The appellant sought to be impleaded as a plaintiff claiming under a will and assignment - The learned Single Judge rejected the application on the ground that the suit had abated - The Division Bench held that the suit had not abated and remanded the matter for consideration of the impleadment application on merits (Paras 1, 6).
Issue of Consideration
Whether the suit filed by Dominic Francis Pereira was a personal action which abated upon his death, and whether the appellant could be impleaded as a plaintiff.
Final Decision
Appeal allowed. Impugned order dated 20th March 2013 set aside. Chamber Summons No. 39 of 2011 restored to the file of the learned Single Judge for consideration on its own merits in accordance with law.
Law Points
- Suit for administration of estate is not a personal action
- does not abate on death of plaintiff
- legal representatives can be substituted
- impleadment application under Order 1 Rule 10 CPC
