TARA NEVATIA Vs. SRIPATI CHARAN DHUR

JUDGEMENT

(1.) THIS is an appeal against an order of Ray, J. dated the 9th December, 1959 allowing an application made by the plaintiff for setting aside the abatement of the suit if any, for adding certain persons as defendants and for other reliefs. The facts in this case are shortly as follows: One Kali Charan Dhur, by a Deed of Settlement dated 22nd July, 1938 settled various moveable and immoveable properties in favor of his five sons including the plaintiff Sripati Charan Dhur and the deceased plaintiff Ganesh Chandra Dhur. Under the Deed of Settlement, premises No. 76, Bentinck Street, Calcutta, was allotted to the said Sripati Charan Dhur and Ganesh Chandra Dhur for their respective lives and thereafter to their male heirs absolute. During their life time, they were entitled, in equal shares to the rents, issues and profits and after their death the half share of each would devolve upon his respective male heirs On or about the 8th October, 1956 the said Sripal Charan Dhur and Ganesh Chandra Dhur executed a memorandum of agreement, letting out the said premises No. 76, Bentinck Street to the defendant Tara Nevatia on terms and conditions mentioned in the said memorandum. It seems that the said defendant went into possession but a dispute arose between the parties and by notice in writing dated 27th March, 1957 the Dhurs called upon the defendant to quit the premises and make over possession. As she failed to do so, a suit being Suit No. 1431 of 1957 was instituted by Sripati Charan Dhur and Ganesh Chandra Dhur against Sm. Tara Nevatia on the 14th August, 1957. A copy of the plaint is in the Paper Book, at pages 10 to 14. In the plaint the facts have been set out and it is claimed that the memorandum of agreement was invalid for several reasons. The first reason given is that it is unregistered, although it requires registration under the law. The second point advanced is that the agreement is void for uncertainty. The plaintiffs pray for a decree for vacant possession, mesne profits, for the appointments of a Receiver and other reliefs. The defendant entered appearance and filed her written statement. On the 10th September, 1957 an application was made for the appointment of a Receiver. On the 1st April, 1958 Bachawat, J. , ordered that certain amounts should be deposited with the Rent Controller month by month, otherwise the plaintiffs would be entitled to apply for the appointment of a Receiver. These rents, less the rates and taxes paid to the Corporation, are being deposited with the Rent Controller. On 8th September, 1958 Ganesh Chandra dhur died intestate leaving him surviving his widow Sm. Radharani Dhur and his three sons Gora Chand Dhur. Gurok Chand Dhur and Gobind Chand Dhur, all of whom are minors. The application out of which this appeal arises, was made on the 16th June, 1959 and prays that the abatement of the suit be set aside, the death of Ganesh Chandra Dhur be recorded that the said Radharani Dhur and her three sons be added as defendants, and consequential amendments be made in the body of the plaint. There were other reliefs claimed namely, that leave be given to the applicant to withdraw half the amount deposited with the Rent Controller and several other reliefs not necessary to be mentioned. This application was heard by Ray, J. , and on the 9th December, 1959 it was ordered that the abatement be set aside, that the death of Ganesh Chandra Dhur be recorded and that the cause title and the register of the suit be amended by adding the names and description of Sm. Radharani Dhur and her three sons as party defendants. A Receiver was appointed and the defendant was directed to make certain payments to the Receiver. It is against this order that this appeal is directed. The first ground put forward is that the abatement should not have been set aside and that the respondents Nos. 2 to 5 should not have been added as party defendants, as this will completely change the nature and character of the suit. Also the appointment of a Receiver has been challenged. In my opinion, the parties are laboring under some confusion as to the real position and the matter requires clarification. I have already mentioned that both Sripati Charan Dhur and Ganesh Chandra Dhur have only a life interest in the said premises No. 76, Bentinck Street. Upon the death of Ganesh Chandra Dhur, his half share devolved absolutely on his three male sons. So far as Sm. Radharani Dhur is concerned, she is not interested in the premises at all. Actually, the stand taken by the respondents Nos. 2, 3, 4 and 5 is as follows: They say that neither Sripati Charan Dhur nor Ganesh Chandra Dhur had any right to create any tenancy in respect of the half share in the said premises in which Ganesh Chandra Dhur had a life interest, for an unspecified length of time. The respondents Nos. 3, 4 and 5 are now the owners of a half share in the said premises and they are not bound by 'any lease or tenancy created by Ganesh Chandra Dhur with regard to his half portion beyond his life time. If this is made clear, they are willing to be added as party defendants in this suit but they propose to take the defence that they are not bound by the alleged agreement or tenancy tar anything that either Sripati Charan Dhur or Ganesh Chandra Dhur might have done with respect to the half share that has devolved upon the respondents Nos. 3, 4 and 5. In this respect, no question of abatement arises. Mr. Das has however, pointed out that in the suit, mesne profits have been claimed, and in respect of mesne profits up to the death of Ganesh Chandra Dhur, his heirs and legal representative's are interested. To this limited extent it does seem that the question of abatement arises. The respondents Nos. 2, 3, 4 and 5 however state through their learned Counsel that they do not claim any mesne profits and refuse to be substituted for that purpose in the place of Ganesh Chandra Dhur as plaintiffs in the suit. In that view. I do not see. that the question of abatement need at all be considered. However, upon that point, it is necessary to arrive at a decision, because we propose to add the said respondents as parties to the suit. I have stated that Ganesh Chandra Dhur died on the 8th September, 1958 and this application was made on the 16th June, 1959. Prima facie, therefore, the suit had abated, so far as Ganesh Chandra Dhur is concerned. The reasons given for setting aside the abatement are set out in the petition. In is said that after the death of Ganesh Chandra Dhur, there were negotiations between the parties and Deokaran Nevatia, the husband of the respondent No. 1 had called several times at the residence of Sripati Charan Dhur who in his turn called upon the widow and the sons of Ganesh Chandra Dhur, to make an application for being substituted as plaintiffs in the place of Ganesh Chandra Dhur. They however refused to do so. That is why the prescribed time elapsed and he was finally compelled to make an application to add them as party defendants. I think that under the circumstances the reasons given in the petition for the delay, which reasons have been accepted by the learned Judge below, are sufficient and should be accepted. After all, the position in this case if somewhat complex. The Deed of Settlement conferred upon Sripati Charan Dhur and Ganesh Chandra Dhur a life interest only. Whether on the strength of it, they could enter into a tenancy with the respondent No. 1 for an unspecified time, is a question which will have to be decided in the suit. It is natural therefore, for Sripati Charan Dhur, to approach the widow and sons of Ganesh Chandra Dhur, to try and bring them into the suit and it was equally natural that they would resist, since they have an independent right and they do not wish to be plaintiffs in this suit. In my opinion, the abatement, if any, has been rightly set aside. Here I must mention a preliminary point of law that was taken, namely that no appeal lies against an order setting aside an abatement. The position in law is as follows: In Md. Nur Amin v. Monohar Saran (1) A. I. R. (1925) Cal. 473 it was held that an order setting aside an abatement does not affect the decision of the case with reference to the merits and is, therefore, not appeal-able under the Code. It has however been held by the Calcutta High Court that the order of a single Judge setting aside an abatement in an appeal is a 'judgment' within the meaning of clause 15 of the Letters Patent. Sarat Chandra Sarkar v. Maihar Store and Lime Co. Ltd. , (2) A. I. R. (1922) Calcutta 325. In that case, Sanderson, C. J. , referred to an unreported decision of the Court in Padmabati and orn. v. Tulsimunjari Debi (3) (Appeal No. 16 of 1918, judgment dated 18-6-18 ). Apart from this, no reason has been given. This view has been dissented from by the Allahabad and the Bombay High Courts. In Marai Flabian Almuda v. Ramcharan, (4) A. I. R. (1933) Bom. 408, it was held that no appeal lay from an order setting aside an abatement under clause 15 of the Letters Patent, because it does not affect the merits of the disputes between the parties, but is a matter of procedure. In a comparatively recent Bench decision of this Court--Laxminarayan Tamkorwalla, v. Udairam (5) A. I. R. (1961) Cal. 386 the decision of Sarat Chandra Sarkar v. Maihar Stone and Lime Co. Ltd. (2) A. I. R. (1922) Cal. 335 has been approved upon this point. The learned Chief Justice said as follows:-

(2.) IN conformity with the decisions of this court, we must hold that an order setting aside an abatement is an appealable order. The position therefore appears to be as follows: The Court below, has set aside the abatement. In our opinion also the abatement should be set aside. But this setting aside of the abatement has really no practical effect, because the legal representatives of Ganesh Chandra Dhur refuse to be substituted in his place and stead and have declared in Court that they do not claim any mesne profits up to the death of Ganesh Chandra Dhur. It may be off assistance to Sripati Charan Dhur. The next part of the order is the addition of the respondents Nos. 2, 3, 4 and 5 as defendants. To this order they are agreeable, and the order of the Court below must therefore stand. Them there are orders for consequential amendments and steps to be taken, to which there appears to be no objection. Next we come to the appointment of a Receiver. Upon this no argument was advanced before us, and we are given to understand that this appointment was made more or less by the consent of parties.

(3.) THAT being so, in my opinion this appeal should fail and be dismissed. The costs of the appeal should abide by the result of the suit.