Chami Narayanan vs V.R. Krishna Iyer And Ors.

on 1 July, 1998

Kerala High Court

Chami Narayanan vs V.R. Krishna Iyer And Ors. on 1 July, 1998
Equivalent citations: AIR 1998 Ker 365
Author: S Marimuthu
Bench: S Marimuthu
JUDGMENT S. Marimuthu, J.

1. The appeal is directed impugning the judgment and decree passed by the learned Addl.
Sub-Judge, Palakkad in O.S. No. 238 of 1979. One Chami Narayanan-defendant is the appellant.
One Krishna Iyer represented by his Power of Attorney holder Veeraraghava Iyer is the first plaintiff
and supplemental plaintiffs 2 to 4 are the wife and daughters of Krishna Iyer, who are Respondents
2 to 4 in this appeal.

2. The common grounds of both the appellant and the respondents are as follows : Suit was
originally filed by Veeraraghava Iyer representing as Attorney of Krishna Iyer for recovery of a sum
of Rs. 8,004/- borrowed by the appellant by executing Ext. A-1 promissory note dated 26-7-1976.
Apart from the above common grounds of both the sides, it is the further contention of the
respondents that prior to the execution of Ext. A-1 pronote, Krishna Iyer executed Ext. A-2 general
power deed dated 5-5-1975. Krishna Iyer left his family in the year 1977 and his whereabouts were
not known for more than 7 years. However, once he was seen by Veeraraghava Iyer, the Attorney.
When the period of limitation for claiming the amount under the pronote was nearing.
Veeraraghava Iyer in his capacity as donee of the power conferred on him under Ext. A-2 filed the
suit before the expiry of the period of limitation. It is also the admitted grounds as culled out from
the records that the suit was originally dismissed by the Court below holding that the donee of the
power, Veeraraghava Iyer, is not clothed with the right of laying a claim under the pronote.
Aggrieved by the judgment of dismissal of the suit, an appeal was preferred before this Court as A.S.
No. 422 of 1982. This Court remanded the matter to the Court below for fresh trial with a direction
to render a finding on the validity of the power deed, Ext. A-2, after framing an issue in that regard.
After remand, an application was moved by the power holder, Veeraraghava Iyer, to implead the
wife and daughters of Krishna Iyer as Suppl. plaintiffs. That application, I.A. 2948 of 1990, was
allowed and the wife and children were brought on record as suppl. plaintiffs 2 to 4.

No civil revision was filed questioning the above order of impleadment of suppl. plaintiffs. The
Court below thereafter, assessing the evidence, decreed the suit on 21-12-1990. Mr, V.
Chitambaresh, learned counsel for the appellant denying the above contentions of the respondents
would contend that the power deed Ext. A-2 would confer only a specific authority on the donee of
the power, Vceraraghava Iyer, that it does not authorise Veeraraghava Iyer to lay the present claim
under the suit pronote. that suppl. plaintiffs 2 to 4 were not brought on record in accordance with
the rule of law, namely when they were brought on record, the claim itself was barred by limitation,
that there is no necessity to challenge the order passed in the impleading application by way of a
civil revision before this Court, that on the other hand it is enough in questioning the said order in
this appeal as provided under Section 105, C.P.C. and that viewed from any angle, the judgment and
decree rendered by the Court below cannot be sustained.

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3. It is, on the other hand, the contention of Shri N. Viswanatha Iyer, learned counsel for the
respondents that a bare reading of Ext. A-2 power deed would disclose that it is a general power
deed which authorises the donee of the power to lay the present claim under the suit pronote. Even
when a specific authority is not conferred on Veeraraghava Iyer in regard to the filing of the present
suit under the pronote, on the moral duty cast upon him he can protect the interest of the donor of
the power and also preserve the right of the donor over his property from being injured, on the
doctrine of 'agency by necessity'. Thus on any angle when this matter is considered, the action of
Veeraraghava Iyer in filing the suit under the pronote comes within the purview of the authority
conferred on him under the power deed.

4. Now, the above admitted contentions and divergent submissions of both the counsel, Mr. V.
Chitambaresh for the appellant and Mr. N. Viswanatha Iyer for the respondents, I will consider, on
the footing of the propositions of law placed by both the counsel, to decide whether the judgment of
the Court below can be sustained?

5. To uphold or uproot the judgment of the trial Court the following points are raised: (1) Whether
Ext. A-2 is a general power deed or it is a specific power deed conferring authority on Veeraraghava
Iyer; (2) Barring Whether Ext. A-2 is a general or a specific power deed, could Veeraraghava Iyer lay
the claim under the pronole under the doctrine of 'agency by necessity'? (3) Whether the
impleadment of suppl. plaintiffs 2 to 4 is legally correct and proper? (4) Apart from the decision
whether the impleadment is correct or not, if the suit is barred by limitation? and (5) The order
passed by the Court below in the application. I.A. 2948 of 1990, impleading suppl. plaintiffs 2 to 4
can be challenged in this appeal as per the statutory provisions enjoined in Section 105. CPC?

6. POINTS 1 and 2 : Ext. A-2 specifies the following words :

(Matter in Vernacular Deleted--Ed.) Learned counsel for the appellant would contend that the above
recitals in Ext. A-2 conspicuously indicate that it is a specific power deed conferring the authority on
the donee. Veeraraghava Iyer, to deal with the immovable properties of Krishna Iyer situate in
Alathur Taluk. There is no whisper at all in the deed conferring an authority on Veeraraghava Iyer to
lay the present claim under the pronote. On the other hand, the contention of the learned counsel
for the respondents would be that the above recitals in Ext. A-2 had to be analysed in abroad outlook
and when such an examination is done, it is evidently clear that it authorises Veeraraghava Iyer to
lay the present claim under the pronote. A power of attorney can be categorised: (1) General Power;
(2) Specific Power; and (3) Particular Power. The power conferred on Veeraraghava Iyer, in the
instant case, is one of general power. It was also the submission of the learned counsel for the
respondents that Veeraraghava Iyer being an attorney of Krishna Iyer, even if it is taken for the sake
of argument that Ext. A-2 is not a general power deed, can protect the interest and preserve the right
of the donor of the power in respect of the property on the moral obligation basing on the principle
of 'agency by necessity'. The agency may be express or implied and by holding out. Even sometimes
the power holder while acting on the footing of agency by necessity, can exceed his authority when
he could not contact or send communications to the donor of the power before any damage or
perishment is caused to the property of the donor. In such case the action of the donee must be
reasonable, necessary and with bona fide intention. Now, I will examine the above submissions of

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both the counsel with reference to the brand of Ext. A-2 whether it is a general or specific or
particular power deed. A reading of Ext. A-2 makes it clear that Veeraraghava Iyer has been
authorised by Krishna Iyer to manage all the immovable properties of Krishna Iyer situate in
Alalhur Taluk and also to face the litigations, if any, erupted thereunder in future. The word
["Vernacular matter omitted"] employed in Ext. A-2, as rightly pointed out by the learned counsel
for the appellant, stands for the word "ordinary" and the said Malayalam word could not be meant
for the word "general". Therefore, 1 am in agreement with the contention of the learned counsel for
the appellant that Ext. A-2 is only a specific power deed.

7. The Supreme Court in Syed Abdul Khader v. Rami Reddy, (1979) 2 SCC 601 : (AIR 1979 SC 553)
has laid down the following principle: By executing a power of attorney, a relationship like that
between a principal and agent is created as under the Contract Act. Therefore, for determining the
nature of the authority given by the deed, terms and purpose are relevant and equally the intention
of the parties also has to be gathered from the surrounding circumstances. When wider power has
been given in one of the clauses, the instrument cannot be restricted, on the basis of certain vague
expressions used elsewhere in the document. When the above principle ruled by the Supreme Court
is pressed into service for considering the contents of Ext. A-1. Ext. A-2 power of attorney is only a
specific power of attorney. In Atul Mathur v. Atul Kalra, (1989) 4 SCC 514 the Apex Court has ruled
that when there is a general clause in the power of attorney with an undertaking of the donor
company, to ratify all acts, deeds and things lawfully done by the attorney then any act of the donee
done, like filing the criminal complaint. etc., on the hope that all such acts or deeds would be ratified
as per the general clause found in the deed, could not be meant that the donee has exceeded his
power. In the instant case before me in Ext. A-2 there is no such general clause for ratifying any acts,
deeds, things, etc.. done by Veeraraghava Iyer. The contract of agency is an employment of one
person by another in order to bring the later into legal relations with the third persons. The
definitions of agency, creation of agency, the authority of agent express or implied. agency by
holding out, etc., and their applications are found in Sections 182, 184, 186, 187 and 188 of Chapter
X of the Indian Contract Act. As per the provisions of the above Sections as well as the judicial
pronouncements having come out thereunder, the relationship between the executant of a power
deed and attorney is in par with the relationship, as defined in the Indian Contract Act, as between a
principal and an agent. Learned counsel for the respondents would contend that on account of the
statutory and settled principles of law Veeraraghava Iyer can act on the doctrine of 'agency by
necessity'. Even if it is taken for argument sake that Ext. A-2 is a specific power deed, the laying of
the suit before the claim is barred by limitation is well covered by the principle 'agency by necessity'.
In this junction the argument of the learned counsel for the appellant is that an attorney, though a
particular authorisation is not given to him in the deed, can act upon when it is an incidental to the
main power conferred on him in the deed. According to him the institution of the present suit on the
basis of the pronote by Veeraraghava Iyer is not an act of Veeraraghava Iyer incidental to the main
power conferred on him in Ext. A-2. For, in Ext. A-2 the power conferred on him is restricted to the
extent that he can manage and look after the immovable properties located in Alathur Taluk. That
power conferred on him in respect of the immovable properties cannot be construed in normal
prudence that it is a principal one to the filing of the suit on the pronote. In other words, the
institution of the suit cannot be deemed as an incidental to the principal act of the donee of the
power, Veeraraghava Iyer, in managing the immovable properties located in the particular Taluk,

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Therefore, the principle of agency by necessity in the instant case cannot stretch its hands to lift up
the case of the respondents See Timble Irmaos Ltd. v. Jorge Anibal Matos Sequeira, (1977) 3 SCC
474 : (AIR 1977 SC 734). It is also the contention of the learned counsel for the appellant that on the
materials on record it is evidently clear that there is no privity of contract between Veeraraghava
Iyer and Krishna Iyer in respect of the filing of the present suit on the pronote and in that case also it
can be rightly concluded that the institution of the suit by Veeraraghava Iyer is beyond the authority
conferred on him in Ext. A-2. In support of this submission, learned counsel drew my attention to a
case of the Supreme Court reported in Md. Serajuddin v. State of Orissa, (1975) 2 SCC 47 : (AIR 1975
SC 1564).

8. The argument of Mr. N. Viswanatha Iyer, learned counsel for the respondents, as adverted to
above, was that even on a thorough search Veeraraghava Iyer could not find out the whereabouts of
Krishna Iyer that Veeraraghava Iyer was in possession of the suit pronote, that the period of
limitation was nearing fast to its end, that therefore Veeraraghava Iyer being a close relative of
Krishna Iyer in order to protect the interest of Krishna Iyer filed the suit resorting to the doctrine of
'agency by necessity' and that the above act of Veeraraghava Iyer is not at all beyond his authority or
jurisdiction. It was, in this context, contended by the learned counsel for the appellant that as per
the principle laid down in Md. Serajuddin's case (AIR 1975 SC 1564) (supra) the doctrine of 'agency
by necessity' can be resorted to by the attorney only in those cases where the goods in the course of
transit are likely to be perished, the attorney can invoke the power on the principle of 'agency by
necessity'. But in the instant case on hand, no perishable goods are involved but it is in respect of
apronote. Therefore, the above said doctrine 'agency by necessity' viewed from any angle, could not
be imported by Veeraraghava Iyer.

9. When I consider the above submissions of both the counsel on the footing of statutory and settled
law, I have no second thought of concluding that Veeraraghava Iyer has rightly acted on the doctrine
of 'agency by necessity' in order to protect and preserve the interest of the donor of the power,
Krishna Iyer. In other words, to prevent the substantial loss to Krishna Iyer he had instituted the
suit rightly within the power. In a case of this nature, where a question arises as to whether the
doctrineof 'agency by necessity' can be invoked or not, when the following requirements with the
restrictions are satisfied the said doctrine can be rightly applied to :

"in the absence of any authority in the specific power deed, under the common rule based on natural
justice and public policy the donee of the power in the following circumstances can act on the
doctrine of 'agency by necessity' in order to prevent irreparable injury to the donor of the power or
to preserve the property of the donor from any destruction with care and caution and such act of the
attorney is necessary and bona fide in the normal prudence of a common man and it alone is the
remedy which can be resorted to prevent the injury or preserve the properly from any damage.

Ultimately, on point No. I it is answered that Ext. A2 is not a general power of attorney and it is a
special power deed. Point No. 2 is answered to the effect that Veeraraghava Iyer has acted rightly on
the doctrine of 'agency by necessity', though Ext. A2 is not a general power deed.

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 Chami Narayanan vs V.R. Krishna Iyer And Ors. on 1 July, 1998

10. POINTS 3 & 4 : On these points, the arguments of the learned counsel for the appellant are on
two limbs; (1) the impleadment of suppl. plaintiffs 2 to 4 is legally not correct and (2) they have been
brought on record after the suit claim was barred by limitation. No doubt, the above submissions of
the learned counsel for the appellant are not sailed with by the learned counsel for the respondents.
To reach a correct conclusion in this regard the rule of law can be examined. Section 99 CPC
provides that a decree shall not be reversed, varied, remanded, etc.. on account of the defect
occurred due to misjoinder or nonjoinder of the parties, etc., or causes of action, etc., in a suit not
affecting the merits of the castor the jurisdiction of the Court. On the strength of Section 99 CPC, the
argument advanced by the learned counsel for the respondents would be that even if the
impleadment of suppl. plaintiffs 2 to 4 is amounting to misjoinder of parties that will not affect the
institution of the suit and its disposal on merits with the original plaintiff" on the party array. It was
also his contention that as per the provision in Order XXII Rule 5 CPC the question as to the legal
representative has to be determined or decided before the proceedings of the suit commences. In
support of this contention a judgment of this Court was relied upon by him. reported in Kalliani
Amma v. Velu Pillai, 1964 Ker LT 32. It was also contended by him that suppl. plaintiffs 2 to 4 were
brought on record by the order of the Court below in I.A. No. 2948 of 1990 dated 16-10-1990 and
that order was not challenged by the appellant by way of a civil revision and therefore when a
finality has been arrived at, that cannot be challenged by the appellant at this stage of appeal on
account of the above statutory and settled principles of law. For above contention, the reply of the
learned counsel for the appellant would be that the order passed under Order I, Rule 10 (2), CPC
which is not appealable, can be challenged along with the appeal as provided in Section 105, CPC
and hence there erupted no circumstance compelling the appellant to question the above order of
impleadment by way of a civil revision before this Court and the appellant is rightly challenging the
same in this appeal.

11. The order passed in I.A. No. 2948 of 1990 under Order I, Rule 10 is not coming as one of the
items appealable under Section 104 and Order XLIII, CPC. Therefore, the contention of the learned
counsel for the respondents that the said order of impleadment ought to have been challenged
under Section 115, CPC by way of a civil revision and he cannot challenge it in this appeal, for.
Section 105, CPC is evidently clear that it can be pressed into service only in a case where there is
any error or defect or irregularity affecting the decision of the case. It is better here for considering
the above contentions of both the learned counsel to extract Section 105, CPC which reads as follows
:

"105. Other orders :-- (1) Save as otherwise expressly provided, no appeal shall lie from any order
made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is
appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may
be set forth as a ground of objection in the memorandum of appeal."

Section 105, CPC explicitly indicates that for importing its Assistance the error, defect, etc.,
committed should affect the decision of the case. Here the stress made by the learned counsel for the
respondents would be that the answer to the question whether the impleadment of suppl.plaintiffs 2
to 4 is correct or not, will never affect the decision of the case which is based upon the promissory
note. Tt was also contended by him that even the impleadment is erroneous, being unknown to law,

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that also does not affect the root of the case when it is not affecting the merit of the claim as
enjoined in Section 99, CPC (as pointed out above). The above submission of the learned counsel for
the respondents, as a matter of fact, was strongly opposed by the learned counsel for the appellant.
Therefore, their contentions can be now examined to record a correct decision.

12. As rightly pointed out by the counsel for the respondents the suit was instituted by Krishna Iyer
through his power of attorney-Veeraraghava Iyer. The power holder Veeraraghava Iyer has acted in
good faith in filing the suit for recovery of the money within the time of limitation on the doctrine of
'agency by necessity'. The evidence let in on the respondents' side especially that of Veeraraghava
Iyer would evince that in spite of sincere efforts in finding out Krishna Iyer, he could not be traced
out and therefore there erupted compelling reasons to file the suit before the expiry of the period of
limitation in order to protect the interest of the donor of the power. When this is the definite stand
of the respondents. I do not find any substance on the appellant's side to eschew the case of the
respondents. In this situation when suppl. plaintiffs 2 to 4 who are none other than the wife and
daughters of Krishna Iyer were brought on record, the decision of the suit would not be affected.
Only in a case where the decision is affected, the provision under Section 105, CPC can be invoked
with the main appeal to challenge the order passed by the Court below, though not appealable and
however being challenged in revision. It is also pertinent to once again recall Section 99, CPC
wherein it is prescribed that the irregularity or defect arisen out of impfeading of parties will not
affect the merits of the decision or the jurisdiction of the Court. When these are the position of law,
the argument advanced on the appellant's side that the order of impleadment passed by the Coun
below in I.A. No. 2948 of 1990 can be now challenged in this appeal under Section 105, CPC cannot
be approved by the seal of this Court.

13. It was also an argument advanced on the appellant's side that in so far as the suit in respect of
the suppl.plaintiffs 2 to 4 is concerned it must be deemed that it was taken on file on their
impleadment. In other words, it has to be deemed that the suit has begun, "in so far as the suppl.
plaintiffs are concerned on their impleadment as per the order passed in the above said I.A. on
16-9-1990. When that be so, on that day the claim under the pronote was barred by limitation and
for such a time barred claim the suppl. plaintiffs could not have been brought on record, to
prosecute the same in the Court below. To strengthen this submission, learned counsel for the
appellant relies upon the proposition laid down by this Court in Karunakara Pisharady v. Raman,
(1992) 2 Ker LT 785. There my learned brother Justice P. K. Balasubramanyan held as follows :

"It is interesting to note that Order 1, Rule 10 (5) does not deal with the effect of the subsequent
impleading of a plaintiff in the suit. But coming to Section 21 of the Limitation Act it comprehends
within its scope the addition of a new plaintiff or a new defendant and Section 21 (1) of the
Limitation Act provides that the suit as regards the newly added plaintiff or defendant shall be
deemed to have been instituted when he was so made a party. The normal effect of reading Order I,
R. 10(1), CPC and Section 21 of the Limitation Act it is to be postulated is that in the case of addition
of a new plaintiff the suit must be deemed to commence only when he was so impleaded. This
position emerges notwithstanding the fact that O. 1, R. 10 (5) speaks only to the addition of a
defendant when it refers to Section 21 of the Limitation Act. the power conferred on the Court under
O. 1 Rule 10 (1) of the Code of Civil Procedure for impleading an additional plaintiff has nothing to

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do with the effect of that impleading in so far as it relates to question of limitation to be determined
under the Indian Limitation Act. So considered Section 21 (1) of the Limitation Act specifically
provides that in so far as a newty added plaintiff is concerned the suit will be deemed to have been
filed only when he was made a party to the suit. But this provision in Section 21 (1) of the Indian
Limitation Act is circumscribed by apower vested in the Court to regard the suit as having been filed
even in favour of a newly added plaintiff from the day of its original institution in the name of the
wrong; plaintiff. This power is conferred by the proviso to Section 21 (1) of the Limitation Act and it
calls for, the satisfaction of the Court that the omission to implead a new plaintiff was bona fide or
due to a mistake made in good faith. This entails an enquiry as to whether the omission to implead
originally was due to a bona fide mistake or omission."

No doubt, Order I Rule 10 (5), CPC which is extracted herein does not speak out the adding of a
plaintiff Order I, Rule 10 (5) is as follows :

"Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), Section 22, the
proceedings as against any person added as defendant shall be deemed to have begun only on the
service of the summons."

In order to circumscribe the provision in Section 21 (1) of the Indian Limitation Act, the Court can
invoke its inherent power. I am in full agreement with the view of my learned brother extracted
above. It is pertinent to refer herein Section 21 (1) of the Limitation Act.

"21 (1). Effect of substituting or adding new plaintiff or defendant :-- Where after the institution of a
suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to
have been instituted when he was so made a party."

The above section of the Limitation Act is a clear indicative that a suit in respect of a new plaintiff or
defendant added subsequently has to be deemed to have been instituted when the defendant or the
plaintiff was made as a party In case there are more than one defendants or plaintiffs before the new
party is brought on record, it will have to be deemed that the suit has been instituted on that day of
impleadment so far as the newly added party is concerned. Even if the new party has been brought
on record after the expiry of the period of limitation of the claim, it cannot be held that the suit is
barred by limitation, for, the other parties are already on record and so far as they are concerned the
cause of action was already put in motion before the expiry of limitation and that such cause of
action cannot be split up so as to suit the plea "barred by limitation" on the date of impleadment. In
short, only the institution of the suit in respect of the newly added party can be deemed to have
come into force on the day of impleadment and nothing more. The original cause of action and
averments in the plaint or allegations in the written statement will continue with same effect and
force even after the new party has been added. Therefore, on the first limb of Section 21 of the
Limitation Act the appellant cannot be allowed to submit that so far as suppl. plaintiffs 2 to 4 are
concerned, the suit is barred by limitation. For, the suit had no brake enroute till suppl. plaintiffs 2
to 4 were added. Thus the period of limitation of the suit can never be reckoned from the date of the
impleadment of suppl. plaintiffs. In the above citation of this Court the discussion is with reference
to the proviso to Section 21 of the Limitation Act. When wrong plaintiff or defendant has been

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brought into record and so far as the newly added plaintiff or defendant is concerned the suit has to
be deemed to have been instituted on the earlier date, namely institution of the suit at the first
instance. However, this entails an enquiry as to whether due to bona fide mistake or omission, the
right plaintiff or defendant was not brought on record at the first instance. Hence a comparative
reading or Order I Rule 10 (5), CPC and Section 21 of the Limitation Act and the principle laid down
by this Court would evince that so far as the limitation of the suit is concerned, it has to be reckoned
from the date of filing of the plaint in Court and not from the date on which a new party was
substituted or added. Only for the limited purpose of the legal right, liability and obligation of the
newly added party being put in motion the date on which he was substituted or added, has to be
taken into account and nothing else. Because of the substitution or addition of the new party, the
original plaint averments including the cause of action cannot be erased from the record and some
other thing cannot be substituted or inducted in that place as per the spirit and significance of Order
I, Rule 10 (5) CPC and Section 21 of the Limitation Act.

14. The above discussion on the statutory and settled principles of law is conspicuously clear that the
appellant cannot take shelter Under Section 105, CPC. Therefore, it is bad to challenge the order
passed in the above I.A. impleading the suppl. plaintiffs. And the suit is not barred by limitation.

15. POINT NO. 5. Yet another legal question raised by the learned counsel for the appellant is on the
basis of the rule of evidence as enjoined in Sections 107 and 108 of the Indian Evidence Act. The suit
was filed in the year 1979. The suppl. plaintiffs as legal representatives of Krishna Iyer were added in
the year 1990. But according to suppl .plaintiffs 2 to 4, Krishna Iyer was not heard of for 7 years.
Therefore, the suppl. plaintiffs ought to have been added prior to the year 1986. Why they have been
added after 1986 the claim gets abated. No application was moved and allowed setting aside the
abatement before the impleadment was allowed in the year 1990. While stressing the above
contention, Mr. Chitambaresh, learned counsel for the appellant, drew my attention to Sections 107
and 108 of the Indian Evidence Act which read as follows :

"107. Burden of proving death of person known to have been alive within thirty years.-- When the
question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the
burden of proving that he is dead is on the person who affirms it.

108. Burden of proving that person is alive who has not been heard of for seven years. Provided that
when the question is whether a man is alive or dead, and it is proved that he has not been heard of
for seven years by those who would naturally have heard of him if he had been alive, the burden of
proving that he is alive is shifted to the person who affirms it."

Section 108 of the Indian Evidence Act, as rightly pointed out by this Court in Nytti v. State of
Kerala, (1991) 2 Ker LT 373 is a proviso to Section 107. Section 107 of the Evidence Act would
provide that when a question arises as to whether a man is dead the burden at the first instance lies
on the person who asserts that he is alive, to establish that the man is found alive within a period of
30 years. When at the first instance it is established that he is alive, to rebut it that he is not alive,
the burden lies on the opposite party to establish that he i s dead. Section 108 provides that when it
is not explicitly proved whether a particular man is alive or not and on the other hand when it is

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proved that he has been not heard of for seven years, the burden then shifts on the person who
affirms that he is alive. So, a comparative reading of both the sections are so clear that when it has
been proved that a person is not heard of for seven years, no conclusion can be arrived at that he is
dead. Only during the course of administration of justice, of course, of legal prosecution the period
of seven years during which he is not heard of, performs a vital role to secure ends of justice. The
man unheard of for seven years can be deemed to have met with a civil death and not a death
occasioned on his last breath. So, the ingredients of Sections 107 and 108 of the Evidence Act cannot
be advantaged of by the appellant in support of his case. As adverted to above, it is not a new suit
with new cause of action on the date of the impleadment of suppl. plaintiffs 2 to 4. Even after the
filing of the suit as borne out in the evidence of P. W. 1, he had met Krishna Iyer in Delhi. As for
seven years his whereabouts were not known to suppl. plaintiffs 2 to 4 his legal representatives, they
have got themselves impleaded in the suit. It is not their contention that Krishna Iyer had already
died on a particular day. Abatement of a suit will come into play on the expiry of 90 days from the
date of death. Within the said period of 90 days, the legal representatives of the deceased must enter
into the litigation. If not, the claim will get abated. In such case, no doubt, to set aside the abatement
the legal representatives can move an application. Here nothing has been brought that Krishna Iyer
is no more. Therefore, the impleadment of suppl.plaintiffs 2 to 4 or the provisions of Sections 107
and 108 of the Indian Evidence Act in fact will not help the appellant. Yet another submission of the
appellant's counsel is that the proceeding of the Court below in impleading the suppl.plaintiffs is
illegal and without jurisdiction and therefore it has to be ignored in the eye of law. In support of the
above submission, the appellant's counsel would place reliance on the principle laid down by this
Court in Premananda Bharati v. Yogananda Bharathi, 1985 Ker LT 144 : (AIR 1985 Kerala 83). In
that case though the first proceeding and report filed by the Advocate Commissioner were perfect,
without any irregularity, a second Commissioner was appointed and his proceeding and report were
acted upon without assigning any reason as to why the first proceeding and report were not acted
upon or as to why the first report and proceeding were not set aside. In such circumstance, the act of
the Court below in appointing the Second Commissioner and accepting his proceeding and report
which were not good as those of the first Commissioner, is illegal and without jurisdiction, as result
of which a jurisdictional error has also crept in. The final verdict of the bench of this Court in the
above citation would be that when appointing a Second Commissioner and accepting his
proceeding, the Court must have taken a clear view as to why the first Commissioner's report and
proceeding were not accepted and not set aside. But the above principle will not render any
assistance to the case of the appellant before me. For, in the instant case before me I have found
above that the order of impleadment is not illegal and the Court does not lack of jurisdiction while
passing the said order and the application, in fact, has been filed by the legal representatives within
the right time and in accordance with the statutory provisions of law.

16. Finally on account of my elaborate discussion above, I hold that the impleadment of suppl.
plaintiffs 2 to 4 is legal, correct and proper that the suit is not barred by limitation and that the
impleadment of suppl. plaintiffs 2 to 4 cannot be challenged in this appeal under the provisions of
Section 105, CPC.

In the result, the appeal stands dismissed. However, the parties are directed to suffer their
respective costs. Order on C.M.P. No. 3937 of 1991 in A.S. No. 377 of 1991dismissed.

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