IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 57 of 2007 Reserved on: 27.8.2010 Decided on : 9.11.2010 Lakhu and ors. …Appellants. Versus Saina Devi and ors. …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 yes For the appellants: Mr. B.K.Malhotra, Advocate. For the respondents: Mr. Sunil Awasthi, counsel for respondents No. 1 to 8. Kuldip Singh , Judge (Oral) On 15.7.2009, it was brought to the notice of the Court that appellant No.1, had died on 2.11.2007. No steps have been taken for bringing on record legal representatives of appellant No.1. The learned counsel for the appellants has submitted that no doubt, appellant No.1 has died on 2.11.2007 and his legal representatives have not been brought on record, but in view of nature of case, the appeal has not abated. This stand has been refuted by learned counsel for respondents No. 1 to 8, who submitted that since legal representatives of appellant No.1, died on 2.11.2007, have not been brought on record, the abatement of appeal is automatic, it requires no separate order and 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 since legal representatives of appellant No.1 have not been brought on record within the stipulated period and after taking into consideration further stipulated period for setting aside the abatement, the appeal stands abated in absence of requisite steps taken by the appellants. 2. In the context of submissions made by the learned counsel for the parties, it is necessary to refer to the nature of the suit, out of which the present appeal has arisen. Om Parkash, predecessor-in- interest of respondents No.1 to 6 had filed a suit for declaration with consequential relief of injunction that the order dated 19.12.1990 passed by Sub Divisional Collector, Joginder Nagar is null and void to the extent, it holds sum due under the mortgage with further declaration that the plaintiff and proforma defendants No. 11 to 17 are entitled to redeem the suit land for a sum of Rs. 800/, which stands already deposited with Sub Divisional Collector, Joginder Nagar. Lakhu and Chanan defendants No. 1 and 2 contested the suit and prayed for dismissal of the suit. It is not necessary to give details of defence of defendants No. 1 and 2 in view of limited controversy involved regarding the abatement of appeal. 3. In order, dated 19.12.1990, Ext. P-1 passed by the Sub Divisional Collector, Joginder Nagar, two issues were involved, (i) right of Santu, applicant to redeem the mortgaged property, (ii) whether the sum deposited by Santu, petitioner, in that case was rightly due under the mortgage. The Sub Divisional Magistrate vide order, dated 19.12.1990 has held that the petitioner, Santu was entitled to redeem 3 the mortgaged property on depositing Rs. 9290/- within 20 days from 19.12.1990. Ext.P-1 was challenged in the suit, which was decreed on 18.3.1994. In appeal, learned Additional District Judge, Mandi remanded the case to trial court on 28.4.2000. 4. The deceased-appellant No.1 Lakhu was defendant No.1 in the suit. The prayer made in the plaint is for declaration that the order, dated 19.12.1990 is null and void to the extent it holds sum due under the mortgage. The plaintiff and proforma defendants No.11 to 17 may be declared entitled to redeem the suit land for a sum of Rs.800/-. The suit was decreed on 11.9.2000 after remand. Lakhu and three more, all children of late Situ, filed appeal against the judgment and decree, dated 11.9.2000, which was dismissed on 20.11.2006. 5. In the context of declaration given by the trial court and affirmed by the lower appellate court, the question of abatement of present appeal on account of death of appellant No.1 Lakhu is to be considered. The legal representatives of appellant No.1 have not been brought on record. The learned counsel for the appellants has submitted that the appeal has not abated in absence of legal representatives of appellant No.1 and in support of this submission, he has relied Shiv Ram and others versus Bhagat Ram and others, (1978) I.L.R. H.P., 158. 6. In State of Punjab versus Nathu Ram, AIR 1962 SC 89, the land belonging to two brothers, Labhu Ram and Nathu Ram was acquired. They refused to accept the compensation offered by the 4 Collector. The Arbitrator passed a joint award granting higher compensation. The State Government filed an appeal against the award to the High Court. During the pendency of appeal, Labhu Ram died and his legal representatives were not brought on record and the appeal abated against him. The question of abatement was considered by the Supreme Court as follows:- “(6) The question whether a Court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive 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 (a) 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 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.” 5 The Supreme Court has further held that the decree in the appeal will have to determine not what Nathu Ram’s share in the compensation is, but what is the correct amount of compensation with respect to the land acquired for which the compensation has been awarded by the Arbitrator. The subject mater, for which the compensation is to be calculated, is one and the same. The appeal before the High Court was an appeal against a decree jointly in favour of Labhu Ram and Nathu Ram. The appeal against Nathu Ram alone cannot be held to be properly constituted when the appeal against Labhu Ram had abated. In the absence of one joint decree-holder, the appeal is not properly framed. The appeal against Nathu Ram alone cannot proceed. 7. In Sri Chand and others versus M/s. Jagdish Pershad Kishan Chand and others, AIR 1966 SC 1427. The facts were that in Civil Suit No. 43 of 1952, a decree was passed against second respondent for Rs.49,914/10/-. The Court directed the second respondent to furnish security in the sum of Rs. 50,000/- and five persons stood sureties for satisfaction of the decree. Out of five sureties, Sri Chand, Basant Lal and Debi Ram were appellants in the Supreme Court. In Civil Suit No.43 of 1952, a decree was passed against second respondent for Rs.42,914/10/- with costs and future interest @ 6% per annum. The execution was filed by first respondent. The sureties objected to the execution of the decree. Basant Lal, one of the appellants, died on 18.10.1962. The Supreme Court has held as follows:- 6 “(6) Basant Lal died after the order of the High Court under appeal. He had preferred an appeal, but since the legal representatives to his estate have not been brought on record, his appeal has abated. The order of the High Court holding that the sureties are liable to satisfy the claim notwithstanding the objections raised by Basant Lal has become final. In the appeal filed by the appellants 1 and 3 if this Court holds that the High Court was in error in deciding that the surety bond was not enforceable because it was not registered, or that the first respondent has done some act which has discharged the sureties from liability under the bond, there would unquestionably be two inconsistent orders- one passed by the High Court holding that the surety bond was enforceable, and the other, the view of this Court that it is not enforceable.” 8. In Shiv Ram (supra), two suits were involved. The Civil Suit No. 59 of 1964 was for declaration that the plaintiff had become owner of 1/4th share in the property. The second suit being Civil Suit No. 2 of 1965 was for possession. The first suit was decreed and the second suit was dismissed by the trial court. In paragraph 14 of the judgment, it has been held that heirs of Gopu and Niram Das, who were already on record, do represent in the appeals the same interest, which could have been represented by the heirs of deceased Zalam Singh and Shiv Ram, who were not brought on record. These heirs being joint owners, each one of them could represent the estate jointly owned by the members of the branch, to which each belongs, in the same manner in which other members of the same branch can represent. In Appeal No.4 of 1968, the suit was filed by Shiv Ram and others on the ground 7 that Bhagat Ram and others were trespassers on the suit property. Therefore, if the legal representatives of Shiv Ram, appellant No.1 and Zalam Singh, respondent No.8, are not brought on record, it would not matter because the remaining appellants can proceed in their own right to relief against the alleged act of trespass by Bhagat Ram and others. Therefore, the appeal would not abate. In brief, the court has held that in appeals there is already representation of the estate and in Appeal No. 4 of 1968 the suit was against the trespassers, the remaining appellants could proceed in their own right to relief against the alleged act of trespass. 9. The suit, out of which the present appeal, has arisen is for declaration that the order dated 19.12.1990 is wrong, illegal and void to the extent, it relates to sum due payable on account of mortgage in the order, dated 19.12.1990. It has also been prayed that the plaintiff and proforma defendants No. 11 to 17 have a right to redeem the land in dispute by payment of Rs.800/-. Shiv Ram (supra) is a case of joint ownership. In joint tenancy on death, the estate devolves by survivorship. The difference between joint tenancy and tenancy-in- common is well known. In tenancy-in-common on death, the estate devolves on heirs in absence of testamentary disposition. It has not been established by appellants that it is a case of joint tenancy. Therefore, it cannot be said that in the present suit, the surviving appellants are representing the estate of the deceased nor the suit is against trespassers. Shiv Ram (supra) is not applicable in the facts and 8 circumstances of the present case, rather State of Punjab versus Nathu Ram and Sri Chand and others versus M/s. Jagdish Pershad Kishan Chand and others (supra) are applicable. 10. The decree in the present case is indivisible. The Sub Judge has decreed the suit and order dated, 19.12.1990 passed by Sub Divisional Collector has been declared illegal, null and void to the extent it relates to sum declared due under the mortgage to the defendants/mortgagees and the plaintiff along with proforma defendants No. 11 to 17 has been declared entitled to redeem the suit land on payment of Rs. 800/- of mortgage amount to defendants/mortgagees. This judgment has been affirmed by the learned lower Appellate Court. The appellant No.1 Lakhu has died and his legal representatives have not been brought on record. The appeal insofar as appellant No.1 Lakhu is concerned, stands abated. In other words, the decree passed against Lakhu has attained finality. In case, this court reverses the decree in second appeal, then there will be two inconsistent decrees arising from the same matter, which is not permissible in law. Thus, appeal as a whole stands abated for not bringing on record the legal representatives of appellant No.1, Lakhu. No costs. Pending applications also stand disposed of. ( Kuldip Singh ) Judge. November 9, 2010. (pankaj)