CHANDA DEVI Vs. SHRINATH SHARMA

JUDGEMENT

(1.) -The facts are so peculiar that I had to request Mr. Majumdar, a senior counsel, to assist me amicus curiae, in spite of the fact that learned counsel appearing for the parties are persons having fairly good knowledge of civil law.

(2.) One Ramchandra Sharma filed Title Suit No. 2/25 of 1980-83 in the Court of the Munsif, Buxar for a declaration that deed of gift dated 17-12-1979 executed by his father in favour of the defendant was invalid, illegal and inoperative. The suit was decreed. An appeal was filed before the lower appellate Court which was numbered as Title Appeal No. 54 of 1985. During the pendency of the appeal, Ramchandra Sharma, who was respondent in the Court below was kidnapped on 10-2-1992. First information report in this regard was also lodged on 13-2-1992. Efforts were made to trace him. Unfortunately till today nothing has been heard of Ramchandra Sharma. The appeal was, however, taken up in the Court below for hearing and al lowed by the judgement and decree dated 25-7-1992. Now this appeal has been filed by the wife of Ramchandra Sharma and his minor children. These persons were not parties in the Court below and naturally, therefore, their names did not appear in the decree under appeal. An objection was raised by the Stamp Reporter regarding maintainability of the appeal on their behalf. In this circumstances, the application at flag 'A' has been filed praying to allow the wife of Ramchandra Sharma and his children to prosecute the appeal.

(3.) A counter-affidavit has also been filed opposing the prayer but the fact that Ramchandra Sharma was kidnapped on 10-2-1992 and he is still traceless has not been denied. The question is as to whether the wife of Ramchandra Sharma and his children can maintain this appeal. Learned counsel for the appellants referred to Section 146 of the Code of Civil Procedure. There is nothing on record to suggest even remotely that the wife and children of Ramchandra Sharma are his representatives (during his lifetime). After the death of Ramchandra Sharma, his widow and children will certainly inherit him according to their share. But it is not possible to presume that Ramchandra Sharma is dead merely on account of the fact that he was kidnapped on 10-2-1992 and has not been heard of since then. Section 108 of the Evidence Act provides that a presumption of death can be made if the person has not been heard of for seven years by those who would naturally hare heard of him if he had been alive. Admittedly Ramchandra Sharma was in the company of his wife and children on 10-2-1992 and has not been heard of since then, but seven years have not elapsed. Therefore, it cannot be presumed in law that Ramchandra Sharma is dead. Should in the circumstance, his wife and children wait for 7 years to file the appeal against the decree which was passed against Ramchandra Sharma. Obviously they cannot. wait that long because of the law of limitation and other complications. The only provision that can be attracted to meet this peculiar case is Section 151 of the Code of Civil Procedure which gives inherent power to the Court to make such order as may be necessary for the ends of justice. It is said that the estate of Ramchandra Sharma is being managed after he was kidnapped by his wife and children. That means, they are intermeddling with the estate of Ramchandra Sharma. Mr. Majumdar drew my attention to Section 2(11) of the Code of Civil Procedure which defines "legal representative". According to this definition, persons intermeddling with the estate of the deceased are also legal heirs. I take inspiration from this definition and hold that the wife of Ramchandra Sharma and his children, who are intermeddling, may maintain this appeal against the decree passed against Ramchandra Sharma. But in case Ramchandra Sharma is traced out then Ramchandra Sharma, who has been made respondent No. 2, should file an application for being transposed in the category of the appellant and thereafter the names of appellants Nos. 1 to 5 shall be expunged from the record of this appeal. The application is, therefore, allowed in the manner indicated above. Order accordingly.