1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 196/1987 Shabratibeg s/o Chandbeg (deceased ) L.Rs. 1 Sher Mohammad s/o Shabratibeg: 2 Latifbeg s/o Shabratibeg, deceased (His L.Rs.) 1 Rashidabi w/o Late Latif Beg: 2 Satar Beg s/o Late Latif Beg, Age : Minor, under guardian of mother Appellant No.2(1) as above. 3 Gaffar Beg s/o Late Latif Beg, Age : Minor, under guardian of mother Appellant No.2(1) as above. 4 Zahir Beg s/o Late Latif Beg, age minor, under guardian of mother, Appellant No.2(1) as above. 5 Nasir Beg s/o Latif Beg, age inor, under guardian of mother, Appellant No.2 (1) as above. 6 Anisabi d/o Late Latif Beg, age minor, under gurdian of motehr, Appellant No.2(1) as above. 3 Wahed Beg s/o Shabrati Beg ; 4 Taherbi d/o Shabrati Beg; 5 Babubi d/o Shabrati Beg; ...Appellants. Versus 1 Rahimdad Khan s/o Gul Khan; 2 Nisar Beg s/o Late Latif Beg ; 3 Smt. Khurshdbi d/o Shabrati Beg. ...Respondents 2 Mr. Hemant kumar Pawar, h/f Mr. A.H. Kapadia, Advocate for the appellants. Mr. M.K. Deshpande, Advocate for respondent No.1. Respondents No.2 & 3 deleted. CORAM : A.V. NIRGUDE, J. DATED : 10th June, 2011. JUDGMENT: 1. This appeal is filed against concurrent finding recorded by the Courts below that the respondent / original plaintiff was entitled to specific performance of contract for sale of a house. 2. The facts leading to the litigation are as under. Original defendant the predecessor of the present appellant one Sabrati baig agreed to sell the suit house to the respondent / original plaintiff Rahimdad khan on 25/06/1974 and executed an agreement to that effect after receiving an earnest. But thereafter, the original defendant, the predecessor of the appellants refused to execute the sale deed and deliver possession of the house. So, the suit was filed. During the pendency of the suit, the predecessor of the appellant / original defendant died. His six legal representatives were brought on record as the right to sue survived and continued as against them. They continued to oppose the suit. One of them, one Latif Baig too died during the pendency of the suit. 3. The respondent thereafter made an application for bringing his legal representatives on record. His application was allowed and he was directed to amend the plaint and take further steps in respect of newly added defendants. Despite of this direction, the respondent did not take step for bringing legal representatives of Latif Baig on record. 3 He neither amended the plaint nor brought them on record nor caused summons to be issued to them. The respondent, it seems, simply forgot to take these steps. The suit continued in absence of the legal representatives of deceased defendant Latif Baig. The Court decreed the suit without realising that the legal representatives of deceased defendant Latif Baig were not impleaded to the litigation and were not brought before the Court. The suit was decreed on 24/08/1981. 4. Some time in October, 1981 the present appellants filed Regular Civil Appeal No.354/1981 before the District Judge. In the appeal memo they mentioned that the name Latif Baig was not included in the title clause as an appellants because he had died during the pendency of the suit. 5. In November, 1981 the learned District Judge administratively directed the respondent to amend the original plaint and add the names of the legal representatives of deceased defendant Latif Baig to it. Such formal correction in the plaint was made on 13th November, 1981. But none the less they were still kept away from the appeal. Despite of this, the learned Additional District Judge, heard the Regular Civil Appeal on merits and dismissed the same. He did not take note of the fact that one of the defendants Latif Baig had died during the pendency of the suit and his legal representative were not brought before Court prior to passing of the judgment and decree. 6. For the first time, in the appeal memo of this appeal, the appellants -the remaining defendants- (the remaining legal representatives of the original defendant Sabrati baig) challenged the legality of the action on the part of the learned District Judge for 4 ordering inclusion of the names of the legal representatives of deceased Latif Baig after the disposal of the suit. The appeal memo also suggested that the courts below ought to have held that the suit as against defendant Latif Baig had abated. 7. The substantive question of law that arose for my consideration in this appeal is, if the suit as against one of the defendants Latif Baig had abated, whether the entire suit stood abated as against the remaining defendants / present appellants? 8. As said above, Shabrati beg was the original defendant. It was he who agreed to sell the suit house to the respondent. During the pendency of the action, he died. His six legal representatives were made party to the suit because they were to succeed to the property left behind by Shabrati beg. All such newly added defendants thus had different undivided shares in the suit house. The cause of action for specific performance thus was jointly against them. They could not have had the individual defences or could not have suggested that the suit as against them qua their undivided share in the suit house should be dismissed etc. In other words, they could have jointly opposed the suit and the Court would either allow such suit or dismiss the same. 9. In this back ground, it is clear that when one of the defendants, legal representative of Shabrati beg died during the pendency of the suit, the suit as against him was abated because his legal representatives were not brought on record. The question is whether the respondent’s right to sue due to such abatement survived against the rest of the defendants / present appellants. The answer is in negative. My decision is based on a judgment of this Court in case 5 of Pandurang Sadashio Patil Vs. Pandurang Chimnaji Patil reported in 1983 Mh L J 460. The facts of that case were quite similar to the facts of this case. That was a suit for specific performance on the basis of an agreement executed by two persons, who were brothers inter se. During the pendency of the suit, one of the brothers died and the Court held that the suit abated in its entirety. The reasons are mentioned in the following para of the judgment. “8. Here the two brothers who were the joint owners had entered into an agreement with the plaintiff to sell their property. The suit was founded upon the said agreement, whether for specific performance or for the alternative relief of refund of earnest. The interest of the two brothers was joint and indivisible in the field in question - the extent of the share or interest of each being unknown. Could the plaintiff maintain the suit, initially, only against one of the joint owners for any one of the two reliefs? Certainly No. Can it be said that on the death of one of the two joint owners the right to sue survived against the surviving defendant alone ? The answer against must be in the negative. Whether a suit abates in its entirety or not always depends upon the nature of the suit and also the nature of the interest of the deceased in the subject matter. When the interest of the two defendants in the property promised to be sold was joint, indivisible and undefined, on the death of one of them, the suit could not proceed either for specific performance or for refund of the earnest – in the absence of the legal representatives of the deceased. The abatement of the suit was total and the trial Court was clearly in error in splitting up the interest of the two joint owners and permitting the plaintiff to proceed with the moiety of a claim in respect of the earnest money as against the surviving defendant”. 10. As against this, the learned advocate appearing for the respondent placed reliance on the provisions of Order XXII Rule 4 of C.P.C.. The relevant portion of the provisions reads as under. 4. Procedure in case of death of one of several defendants or of 6 sole defendant – (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. 11. He asserted that despite the death of one of the defendants Latif beg, the right to sue survived and the respondent could continue the suit against the appellants. This submission is made on the basis of a ratio of certain judgments of Hyderabad High Court in the case of Mohammadi Begum Vs. Mir Mahdi Ali Khan Shamsheer Nawaz Jung and others reported in AIR 1956 Hyderabad 18. The learned counsel for the respondent asserted, according to Mohamedan law, whole estate of deceased Mohamedan devolves on his heirs who succeed to the estate of the deceased as tenants in common for specific shares. He said, thus the interest of each heir would be separate and distinct. So he said, the remaining appellants could still be sued and the decree could still be executed against them. This submission as said above is based on the following ratio of the above mentioned judgment of Andhra Pradesh High Court. “According to Mahomedan law, the whole estate of a deceased Mahomedan if he dies intestate devolves on his heirs at the time of his death. The heirs succeed to the estate as tenants in-common in specific shares. As the interest of each heir is separate and distinct, the failure to bring the legal representatives of a co-heir on record within the prescribed period of limitation would result in partial abatement only without effecting the whole suit or appeal.” 12. I am afraid, this ratio would not apply to the present case 7 because the cause of action for this suit is not arising in a suit for inheritance. As said above, cause of action arose from the contract for sale. It was based on the original defendant’s agreement to sell the suit house. After his death, his legal representatives were brought on record as said above because they succeeded to the estate of the original defendant including the suit house. As said above, despite the fact that the newly added defendant, the representative of original defendant had become tenant in common and had specific share in the suit house, they could not have taken different defences by filing different written statements. As said above, their defence could be identical and they would either succeed or fail in such litigation jointly. A useful reference can also be made to a judgment of Supreme Court in the case of State of Punjab Vs. Nathu ram reported in AIR 1962 S.C. 89. The State of Punjab had filed appeal against an award passed jointly in favour of two brothers. The impugned award had directed State of Punjab to pay enhanced amount of land acquisition compensation to the two brothers. During the pendency of the appeal, one of the brothers died. The State of Punjab did not take steps in respect of death of one of the brothers, respondents. The appeal thus got abated. The Supreme Court held that the entire appeal abated. The question was whether the appeal was abated partly or in entirety. The Supreme Court held that it abated in entirety. The following observations of the Supreme Court would guide me in this regard. “It is not disputed that in view of 0. XXII, r. 4, Civil Procedure Code, hereinafter called the Code, the appeal abated against Labhu Ram, deceased, when no application for bringing on record his legal 8 representatives had been made within the time limited by law. The Code does not provide for the abatement of the appeal against the other respondents. Courts have held that in certain circumstances, the appeals against the co-respondents would also abate as a result of the abatement of the appeal against the deceased respondent. They have not been always agreed with respect to the result of the particular circumstances of a case and there has been, consequently, divergence of opinion in the application of the principle. It will serve no useful purpose to consider the cases. Suffice it to say that when 0. XXII, r. 4 does not provide for the abatement of the appeals against the co- respondents of the deceased respondent, there can be no question of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances, is not a correct statement. Of course, the appeals against them cannot proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal. The same conclusion is to be drawn from the provisions of 0.1, r. 9, of the Code which provides that no suit shall be defeated by reason of the misjoinder or non-joiner of parties and the Court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. It follows, therefore, that if the Court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. It is only when it is not possible for the Court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it. The question whether a Court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive 9 statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (s) when the success of the appeal may lead to the Court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed. “ 13. The appeal should therefore, succeed. ORDER The appeal is allowed. The suit of the respondents stands dismissed. [A.V. NIRGUDE,J.] ts k/2011/June10/sa196.87/ok