Holding

A person with Meeira rights under the Portuguese Law of Inheritance is a legal representative within the meaning of the CPC, and a substitution application filed within the prescribed time prevents the suit from abating.

Summary

The Banco Nacional Ultramarino sued Vinaique Naique for a loan, but the defendant died during the trial. The bank applied under Order XXII Rule 4 of the CPC to substitute the widow, Nalini Bai Naique, as a legal representative within four days of learning of the death, and later sought to add the deceased’s children as parties. The respondent contended that the widow, possessing only “Meeira” rights under the Portuguese Law of Inheritance, was not a legal representative and that the suit had abated because not all heirs were impleaded in time. The trial court held the substitution timely and that the widow, having half‑share under Meeira rights, represented the entire estate, allowing the suit to continue. The Judicial Commissioner reversed, but the Supreme Court restored the trial court’s decision, holding that the CPC’s definition of “legal representative” is inclusive and covers persons with Meeira rights, and that the suit does not abate merely because other heirs are added later.

Issues considered

Whether a widow holding Meeira rights under Portuguese law qualifies as a 'legal representative' under the Code of Civil Procedure for substitution in a suit.
Whether the application for substitution filed within four days of acquiring knowledge of the deceased’s death is timely under Order XXII Rule 4 of the CPC.
Whether the suit abates when not all heirs of the deceased are impleaded within the statutory period.
Whether the subsequent addition of other heirs affects the validity of the proceedings.

Legislation cited

Code of Civil Procedure, 1908s. Order XXII Rule 4, s. Order XXII Rule 9, s. Section 115

Subjects

legal representativesubstitutionabatePortuguese law of inheritanceMeeira rightsCPC Order XXIIsuccessionestate representationwidow

Judgment

CUSTODIAN OF BRANCHES OF BANCO NATIONAL
A
ULTRAMARINO.
).._
v.
NALINI BAI NAIQUE

APRIL 28, 1989
B
[K.N. SINGH AND K.N. SAIKIA, JJ.]

Portugees Law of Inheritance in GoaJlolder of 'Meeira' rights 3 1--
Whether legal heir-Whether competent to be substituted as a party•
under the Code of Civil Procedure.

~ Code of Civil Procedure, Order XXII, Rule 4: Holder of 'Meeira'
-
rights under the Portugees Law of Inheritance-Whether a 'legal
representative'-Whether represents the entire estate-Other heirs not
brought on record within time-Suit whether abates. v
I,) 'Legal representative'-Connotation of-Code of Civil Proce-
dure. 1908, 0. 22. R. 4.

The appellant bank instituted a suit against respondent's husband
for recovery of a large amount advanced as loan. The defendant con-
tested the suit, issues were framed and evidence was being recorded.
E He, however, died before the next hearing on 4th November, 1970
when the court was informed by his pleader orally about .his demise.
The appellant ou inquiry learnt on 7th November that the defendant
had died on 4th August. The 8th November being Sunday, an applica-
tion under Order XXJI Rule 4 of CPC was filed on 9th November for •
bringing on record the widow as his legal representative. Another appli-
F cation for condoning delay in making the application was also made.
The appellant later made another application requesting to treat the .'(
latter application.as an application under Order XXII-Rule 9 for setting
aside the abatement of the suit. These applications were contested by
the respondent on the ground that the news regarding the death of her
husband had been published in the local newspapers and the plaintiffs
G had knowledge of his death, and that the suit had abated as no applica-
tion for setting aside abatement had been filed within time.
1,.,,-
In the meanwhile, the appellant made another application for
adding the names of four sons and two daughters of the deceased
defendant on the ground that earlier it had no knowledge about that.
H On behalf of the respondent, it was asserted that the application for
810

..
BANCO NATIONAL ULTRAMARINO v. N.B. NAIQUE 811

substitution was not maintainable as it was tiled beyond time, and in the
· alternative she was not the legal heir of the deceased defendant but only A
his "Meeira" and as other legal heirs of the deceased defendant were
not brought on record within time the application was not maintain-
able.

-i The trial court found that the application under Order XXII Rule B
' was not barred by time since it had been tiled within four days of
coming to know of defendant's death. It further held that since the
widow, one of the legal representatives of the deceased-defendant, was
brought on record within time the sons and daughters could also be
impleaded as defendants along with her. It, therefore, set aside the
abatement of the suit.
,.; c
The Judicial Comminioner, however, took the view 'that the
widow was not a legal representative of the deceased as under the
Portugees Law she had acquired Meeira rights and her status was not
.that of 'Cabeca De Casal' (Head of the family and administrator) of the
pther heirs of the deceased. Since all the heirs of the deceased defendant D
had not been brought on record alongwith the widow within time, the
suit had abated as she alone could not represent the estate of the
, deceased defendant.
~·

Allowing the appeals,
E
. HELD: 1.1 The trial court committed no error in law in allowing
the substitution application. [81SEF]

1.2 A 'legal representative' as defined in Civil Procedure Code
means a person who in law represents the estate of a deceased person,
and includes any person who intermeddles with the estate of the de- F
_J· ceased and where a party sues or is sued in representative character the
person on whom the estate devolves on the death of the party so suing or
sued. The definition i~ inclusive in character and its scope is wide, it is
not confined to legal heirs only instead ii stipulates a person who may or
may not be heir, competent to inherit the prop•rty of the deceased but
he should represent the estate of the deceased person. It includes heirs G
as well as persons who represent the estate even without title either as
executors or administrators in possession of the estate of the deceased.
All such persons would be covered by the expression 'legal representa-
.tive'. If there are any heirs, those in possession bona fide, without there
being any fraud or collusion, are also entitled to represent the estate of
the deceased. The Civil Procedure Code was applicable to the proceed- H
ings in. the instant case. [814G-81SA]
812 SUPREME COURT REPORTS [1989] 2 S.C.R.
::....
1.3 The respondent had acquired •Meeira' rights under the
A
Portugees Law of Inheritance, which was applicable to Goa at the
relevant time, according le which she had acquired half share in the
estate left by her husband and the remaining half share was inherited
by sons and daughters of the deceased. As she was brought on record
within time, she represented the estate of the deceased defendant and
B the suit could proceed on merits. The impleadment of other legal ~
representatives at a subsequent stage could not affect validity of th~
proceedings. [SISB, 816C]

Daya Ram & Ors. v. Shyam Sundari, [1965] 1SCR231 and N.K. --
Mohd. Sulaiman v. N. C. Mohd. Ismail, [1966] 1 S.C.R. 937, referred
to.
c
Mannem Venkataramaih v. M. Munnemma & Ors., AIR 1963 Y
A.P.406,approved.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1154-
D 1155 (N) of 1974.

From the Judgment and Order dated 30.6.1972 of the Court of
Judicial Commissioner of Goa, Daman and Diu in Civil Revision
Application Nos. 13 and 14 of 1972. +
E Anil Dev Singh and Miss A. Subhashini for the Appellant.

S.K. Mehta and Dhruv Mehta for the Respondent. •

The Judgment of the Court was delivered by
.'(
F SINGH, J. This appeal is directc;d against the judgment and
order of the Judicial Commissioner, Goa dated 30.6.1972 setting aside
the order of the Civil Judge, Senior Division, Panaji and declaring that
the suit instituted by the appellant had abated.
·•·
The appellant Bank instituted a suit before the Civil Judge for
G recovery of an amount of Rs. 63,315 against Vinaique Naique, '.,,--
advanced to him as loan by i't. Vinaique Naique, the defendant
contested the suit, issues were framed and evidence was being
recorded. On 26.2.1970 statement of PW-1 was recorded and the case
was adjourned to another date but on that date also the case was
adjourned to 23.7.1970. The suit was again adjourned on 23.7.1970 on
H the ground that the defendant Vinaique Naique was indisposed and
BANCO NATIONAL ULTRAMARINO v. N.B. NAIQUE [SINGH, J.] 813
.;
w~s hospitalised. Thereafter, the suit was taken up for heanng on
A
4.11.1970. On that date the defendant's pleader informed the Court
orally that· the defendant had died at Margaon but did not give any
further details. The Custodian of the appellant Bank Panaji deputed
his clerk to. Margaon to collect necessary information and to obtain
death certificate from the Civil Registration Office if the defendant
~ was found to be dead. The clerk visited Margaon on 5th and 6th B
)!'lovember, 1970 and on enquiry he came to know that the defendant
had died on. 4. 8. 1970, he obtained death certificate from the Civil
Registration Office on 6.11.1970 and handed over the same to the
• Custodian of the Bank on 7th November, 1970. Since 8th November,
1970 was Sunday, the Custodian could not file the same in the court.
The appellant made application under Order XXII Rule 4 of CPC on
c
)( 9th November, 1970 for bringing on record Smt. Nalini Bai Naique as
the legal representative of the deceased original defendant. He made
another application for condoning delay in making the application
duly supported by affidavit. The appellant made another application
requesting the court to treat his earlier application made for condona-
tion of delay as a11 application under Or\ler 22 Rule 9 for setting aside D
the abatement of the suit. Smt. Nalini Bai Naique late defendant's
widow contested the applications on the ground that the news regard-
ing the death of Vinaique Naique had been published in the local
4- newspapers and the plaintiff had knowledge bf his death and further
the suit had abated on the expiry period of 30/60 days of the death of
original defendant· as no application for setting aside abatement had E
been filed within time. Meanwhile the appellant made another appli-
cation for adding the names of six heirs four sons, one major son and
three minor sons and two minor daughters of the deceased defendant
Vinaique Naique on the ground that earlier the appellant had no
-.;.. knowledge about the sons and daughters of the deceased defendant.
On behalf of Mrs. Nalini Bai it was vehemently asserted before the F
..;# trial court that the application for substitution was not maintainable
as it was filed beyond time, and in the alternative she was not the legal
heir of the deceased defendant but she was only his 'Meeira' and as
other legal heirs of the deceased defendant were not brought on record
within time the application for bringing the sons and daughters on
~ record was liable to be rejected. The trial Judge on an elaborate ,con- G
sideration of the rival contentions held that even though the news
relating to the death of original defendant Vinaique Naique had been
reported in local newspapers but in view of the affidavit of Custodian
and other material on record the appellant Bank came to know of the
death of the defendant only on 4.11.1970 from the deceased defen-
dant's lawyer in the court and within four days thereof application for H
814 SUPREME COURT REPORTS [1989] 2 S.C.R.
)....
bringing the legal representative of the deceased defendant was made,
A
therefore, the application made under Order XXII Rule 4 was not
barred by time. The learned Judge further held that since Smt. Nalini
Bai Naique one of· the legal representative of the deceased defendant
was brought on record within time, the sons and daughters could also
be impleaded as defendants along with her. On these findings .the
B learned Judge by his order dated 16.11.1971 set aside the abatement of ~
the suit and directed for substituting the name of the widow Smt{
N alini Bai N aique along with the name of four sons and two daughters
as defendants to the suit in place of deceased defendant Vinaique
Naique. Mrs. Nalini Bai filed a revision application under Section 115
of Code of Civil Procedure before the Judicial Commissioner of Goa at
Panaji against the aforesaid order of the trial Judge. The Judicial
c Commissioner by his order dated 30.6.1972 set aside the order of the
trial Judge and declared the suit to have abated. Aggrieved the plain-
tiff Bank has preferred this appeal after obtaining special leave.

The learned Judicial Commissioner interfered with the order of
D the trial Judge on the sole ground that Mrs. Nalini Bai whose name
was proposed to be brought on record was not legal representative of
the deceased Vinaique Naique as under the Portugees Law she being
the widow had acquired Meeira rights and her status was not that of
"Cabeca De Casal" (Head of the family and administrator) of the
other heirs of deceased Vinaique Naique. Since all the heirs of the
E deceased defendant had not been brought on record along with Mrs.
Nalini Bai within time the suit abated as Mrs. Nalini Bai alone could
not represent the estate of the deceased defendant. The learned Judi-
cial Commissioner did not interfere with other findings recorded by
the trial Judge, instead he set aside the order of the trial Judge on the
sole ground as aforesaid, and declared the suit to have abated. J(
F
After hearing learned counsel for the parties, we arc of opinion
that the learned Judicial Commissioner committed serious error of law
in setting aside the order of the trial Judge. "Legal representative" as
defined in Civil Procedure Code which was admittedly applicable to
the proceedings in the suit, means a person who in law represents the
G estate of a deceased person, and includes any person who intermeddles 'y
with the estate of the deceased and where a party sues or is sued in a
representative character the person on whom the estate devolves on
the death of the party so suing or sued. The definition is inclusive in
character and its scope is wide, it is not confined to legal heirs only
instead it stipulates a person who may or may not be heir, competent
.H to inherit the property of the deceased but he should represent the
BANCO NATIONAL ULTRAMARJNO v. N.B. NAJQUE [SINGH, J.] 815
,)
estate of the deceased person. It includes heirs as well as persons who A
represent the estate even without title either as executors or
administrators in possession of the estate of the deceased. All such
persons would be covered by the expression "legal representative". If
there are many heirs, those in possession bon{l fide, without there
being any fraud or collusion, are also entitled to represent the estate of
the deceased. In the instant case it is not disputed that under the B
~.Portugees Law of Inheritance which was applicable to Goa at the
relevant time Mrs. Nalini Bai had acquired "Meeira rights" according
to which she had acquired half share in the estate left by the deceased
Vinaique Naique and the remaining half share was inherited by sons
and daughters of the deceased who were subsequently brought on
record. On the admitted facts Mrs. Nalini Bai therefore represented
the estate of the deceased Vinaique Naique. Once the name of Mrs. C
( N alini Bai was brought on m;ord within time and the application for
setting aside abatement was at\owed by the trial Judge, the suit could
proceed on merits and the mere fact that the remaining legal
representatives were brought on record at a subsequent stage could
not render the suit defective. The Custodian of the appellant Bank had D
no knowledge that there were other legal representatives of deceased
defendant along with Mrs. Nalini Bai. He had filed affidavit that on
making diligent and bona fide inquiry, he had '<:ome to know that
Nalini Bai was the sole legal representative but l~ter on ·he acquired
knowledge that the deceased had left four sons and two daughters as
legal representatives, along with Mrs. Nalini Bai, therefore, he made
another application for bringing them on record. The trial Judge ac-
cepted the testimony of the Custodian, and placing reliance on the
decision of Andhra Pradesh High Court in Mannem Venkataramaih v.
M. Munnemma & Ors., AIR 1963 A.P. 406 he allowed the substitution
application. The trial court committed no error in law, instead he
applied correct principles of law. F
In Daya Ram & Ors. v. Shyam Sundari, [1965] f SCR 231 this
Court recognised the principle of representation of the estate by
some heirs, where the defendant died during the pendency of the suit
to enforce claim against him and all the heirs are not brought on record
within time. This Court held that if after bona fide inquiry, some, but G
not all the heirs, of a deceased defendant, are brought on record the
heirs so brought on record represent the entire estate of the deceased
and the decision of the Court in the absence of fraud or collusion binds
even those who are not brought on record as well as those who are
imp leaded as legal representatives of the deceased defendant. In N. K.
Mohd. Sulaiman v. N.C. Mohd. Ismail, [1966] 1 SCR 937 this Court H
816 SUPREME COURT REPORTS [1989] 2 S.C.R.

A rejected the contention that in a suit to enforce a mortgage instituted
after the death of a Muslim, if all the heirs of the deceased were not
impleaded fo the suit and a decree was obtained, and in execution the
property was sold, the auction purchaser could have title only to the
extent of the interest of the heirs who were impleaded, and he could
have no title to the interest of those heirs who had not been imp!caded
B to the suit. The Court held, that those who were impleaded as party to )-
the suit in place of the deceased defendant represented the entire-(
estate as they had share in the property and since they had been
brought on record the decree was binding on the entire estate.

In the instant case Mrs. Nalini Bai had admittedly half share in
C the property left by the deceased defendant and as she was brought on
record within time, she represented the estate of the deceased
defendant and the suit could proceed on merit. In this view the
impleadment of other legal representatives at a subsequent stage could
not affect validity of the proceedings. In the result we allow the appeal
and set aside the judgment and order of the Judicial Commissioner
D dated 30.6.1972, and restore the order of the trial Judge. Since trial of
the suit has been delayed, we direct the trial court to make every effort
to decide the suit expeditiously. The appellant is entitled to its costs
throughout.

P.S.S. Appeal allowed.
E

\,.