Case: HEMAREDDI (D) THROUGH LRS Vs. RAMACHANDRA YALLAPPA HOSMANI

2. It was the appellants case that one Govindareddi, the propositus died in 1946. He left behind him two sons and a daughter. The plaintiffs were the children of one of the sons. The second defendant was the wife of the other son Basavareddi. The suit properties were the properties of the joint family of Govindareddi and his sons it was claimed. The plaintiffs have filed another suit as O.S. No.66 of 1990 against the second defendant for declaration that she has no right in the property. Injunction was also sought. Injunction was ordered against her. On the ill advice of some advisors it was their case that she has created a false document of adoption dated 27.04.1991 adopting the first defendant. Defendants 3 and 4 are alleged to have given to the first defendant on adoption to the second defendant. The trial Court dismissed the suit and therefore upheld the adoption. Against the said judgment as noted, both the plaintiffs preferred first appeal before the High Court. It is while so that during the pendency of the appeal the second plaintiff/second appellant died. The LRs of the second appellant were not brought on record. The appeal, therefore, abated qua the second appellant. The High Court took the view that having regard to the decree which has been passed the appeal would abate not only qua the second appellant/ plaintiff but as a whole and accordingly it was so ordered.

Reasoning:
7. Death of a party during the currency of a litigation indeed has given rise to vexed questions. Procedure is the hand maiden of justice, the technicalities of law should not be allowed to prevail over the demands of justice and obstacles in the path of the Court considering a case on merit should not ordinarily become insuperable. On the other hand, if the so called procedural requirement is drawn from a wholesome principle of substantive law to advance the cause of justice, the same may not be overlooked.8. There can be no doubt that Order XXII Rule 3 is applicable also to appeals filed under Order 41. Order XXII Rule 3 declares that where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone inter alia the Court on an application can substitute the legal representatives of the deceased plaintiff and proceed with the suit. Sub-rule (2) provides that if it is not so done, the suit shall abate as far as the deceased plaintiff is concerned. Order XXII Rule (3) therefore is applicable when either a suit or an appeal is filed by more than one plaintiffs or appellants as the case may be. This is no doubt apart from it applying when there is a sole plaintiff or sole appellant. In such a situation, on the death of one of the plaintiffs or appellants and the right to sue does not survive to the remaining plaintiff/plaintiffs or appellant/appellants alone, then the LRs of the deceased party can come on record. Should he not do so, ordinarily, the proceeding will abate as far as the deceased party is concernedIt is quite clear that there were legal representatives available for the second appellant. This is not a case where the estate of the second appellant would pass to the appellant herein by survivorship or otherwise. Therefore, the first requirement is fulfilled for allowing Order XXII Rule 3 to operate. Admittedly, steps were not taken for substitution in regard to the second appellant. The appeal, therefore, abated qua him as is declared by Order XXII Rule 3(2). Though this is all that the Order XXII Rule 2 declares, the principle has evolved that in certain kinds of litigation, the consequences of abatement qua a party is not limited to the deceased party alone but it affects all the other parties and the litigation itself. In other words, a suit or an appeal as the case may be, would suffer an untimely demise by the proceeding abating as a wholeThe allegation in the plaint as we have noticed is that the suit properties are joint properties and the second defendant had no exclusive right to the property. She had created a false document described as an adoption deed by which she has purported to adopt the first defendant. The first defendant cannot claim any right to the suit property as an adopted son. On the alleged date of adoption, the husband of the second defendant was alive. He had died on 16.04.1987, in jointness with the plaintiffs. The plaintiffs were the joint owners of the suit land and also other property. When Basavareddi, the husband of the second defendant was alive, she has no right to take the first defendant on adoption. Defendant No.1 cannot claim any title interest or right over the suit property11. In this case having noted pleadings and the relief sought we can proceed on the basis that it was the appellants case that the plaintiffs property was the joint family property belonging to the appellant and his deceased brother. The trial Court dismissed the suit. The result is that the adoption of the 1 st defendant by the 2 nd defendant which was challenged by the appellant and his late brother was upheld. The said judgment was called in question in a Single Appeal by the appellant and his late brother. It is while the appeal was so pending that the late brother passed away. The appeal having abated in regard to the late brother, the decree of the trial Court has become final qua the deceased brother of the appellant. The effect of the same is that the adoption is found legal. The result of the appellant being allowed to proceed further and succeed in the appeal would be the passing of a decree by the High Court. The said decree would be to the effect that the adoption is invalid. The suit which was jointly filed by the appellant and his late brother would have to be decreed whereas the suit filed by the appellant and his late brother stands dismissed by the trial Court. Both the decrees cannot stand together. There would be irreconcilable conflict. The defendants are common. They would be faced with two decrees regarding the same subject matter which are irrevocably conflictingIn both these cases it must be noticed that it is a condition precedent for the provisions to apply that the right to sue does not survive to the remaining plaintiffs/ appellants (Order XXII Rule 3) or the remaining one or two appellants and right to sue does not survive against the defendant or defendants in the suit or respondents in the appeal alone or the sole defendant or surviving defendants dies and the right to sue survives. It must be noted that Order XXII Rule 2 deals with a situation where there are more than one plaintiffs and defendants and any of them dies and the right to sue survives to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone, the suit or the appeal shall be proceeded against at the instance of the surviving plaintiff or plaintiffs/appellant or appellants or against surviving defendant or defendants in the suit/respondents in the appeal17. Is this a case when the appellant and his brother were having distinct and independent claims and rights and for the sake of convenience they had joined as plaintiffs originally in the suit and as appellants subsequently in the appeal? Is this a case where there is joint decree or is it is a case where the decree is severable? Is it therefore a severable decree or a combination of two decrees? Whether the decree if passed by the appellate court in favour of the appellant would result in a decree which is contradictory to the decree passed by the trial Court18. In this case, undoubtedly as we have noted the appellant and his late brother sued as plaintiffs for a declaration that the first defendant was not the adopted son and he has no rights. They also sought a prohibitory injunction. The suit stood dismissed by trial court. Let us take the converse position. Assuming that the suit was decreed by the trial court and appeal was carried by the defendants, and pending the appeal by the defendants, if the late brother of the appellant had died and if the defendants had not impleaded the legal representatives of late brother and the appeal abated as against him, would it then not open to the appellant as respondent in the appeal to contend that if the appeal was to be allowed to proceed in the absence of the legal representatives of his late brother and succeed, there would be an inconsistent decree. On the one hand, there will be a decree by the trial Court declaring that the first defendant was not the adopted son and had no interest in the property qua the late brother of the appellant. On the other hand, the appellate court could be invited to pass a decree which should be to the effect that the first defendant was found to be the adopted son and had right and interest over the property and a declaration to that effect would have to be granted. Would not the appellate court then have to necessarily hold though the decree in favour of the deceased brother of the appellant has become final, and under it, a declaration is granted that the defendant No.1 is not the adopted son and he has no right to claim the property and there is an injunction against him that he is the adopted son opposed to the decree which has been passed by the trial court which has attained finality. We would think that the appellate court would indeed have to refuse to proceed with the appeal on the basis that allowing the appeal by the defendants would lead to an appellate decree which is inconsistent with the decree which has become final as against the deceased brother of the appellant19. We would think that the situation cannot be any other different, when we contemplate the converse of the aforesaid scenario which happens to be the factual matrix obtaining in this case. The right which was set up by the appellant alongwith his late brother was joint. They were members of the joint Hindu family consisting of their late father and which consisted of late Govindareddi, their father Shriram Reddy and Basavareddi, who was none other than the husband of the second defendant. This is not a case where their claims were distinct claims. This is not the situation which was present in the case dealt with by the Constitution Bench under the land acquisition case. Therein, several persons came together and sought relief in one proceeding. We would think that this is not the position in this case20. It may be true that if a separate suit had been filed by the late brother and it had abated on his death, there will be no decree on merits and the suit would have abated. No doubt, it could be argued that even though the appellant and his late brother set up the case of joint right, it would only mean that they are co-owners of the property, and therefore, they had independent rights as co-owners which could be canvassed in two different proceedings, and therefore, the decree of the trial court dismissing the suit be treated as two different decrees - one decree against the appellant and the other against his late brother. Even then, the decree, which the High court would be invited to pass, would be contradictory and inconsistent with the decree as against late brother of the appellant which may not be permissible in law21. The decree, which the appellant, if successful in the appeal, would obtain, would be absolutely contrary to the decree which has also attained finality between his late brother and the defendants. They are mutually irreconcilable, totally inconsistent. Laying one side by side, the only impression would be that one is in the teeth of the other. In one, the suit is dismissed whereas in the other, the suit would have been decreed22. The argument that in view of the order passed on 10/09/2001 by which despite the death of late brother of the appellant, permission to prosecute the appeal was granted by the court there would arise an estoppel against the order being passed holding that the appeal has abated as a whole, cannot be accepted. The impact of death of the late brother of the appellant qua the proceeding is one arising out of the incompatibility of a decree which has become final with the decree which the appellant invites the appellate court to pass.