Case: Jayarama Reddy &amp; Anr Vs. Revenue Divisional Officer &amp; Land Acquisition Officer,Kurno

2. The State Government acquired 2 acres and 79 cents of the land of the appellants in Kurnool town, for locating a bus depot of the Andhra Pradesh State Transport Corporation It was arable land within the municipal limits of the town, with two trees and an old compound wall. Its possession was taken by the State Government on May 25, 1962. The market value of the land was fixed at Rs. 27, 942.53 at the rate of Rs. 2 per square yard. The compound wall and the trees were valued at Rs. 930 and after allowing a solatium of 15 per cent and interest at 4 per cent per annum, the total compensation was worked out to Rs. 33, 069.12. N. Jayaram Reddy, Y. Prabhakar Reddy and C. Manikya Reddy, who were the three owners of the land, accepted that compensation under protest and applied for a reference under Section 18 of the Land Acquisition Act. After recording evidence and inspecting the site, the Subordinate Judge held that the claimants were entitled to payment at the rate of Rs. 12 per square yard for the value of land, solatium of 15 per cent and interest at 4 per cent. Both parties felt aggrieved against that order dated July 30, 1963. While Appeal AS 180 of 1964, hereinafter referred to as the government appeal, was filed by the Revenue Divisional Officer and the Land Acquisition Officer, Kurnool, Appeal AS 296 of 1964, hereinafter referred to as the claimants appeal, was filed by the claimants. There were thus cross-appeals in the High Court against a common order of the Subordinate Judge. The memorandum of the government appeal was filed on December 7, 1963. I do not have the date of the claimants appeal on the record, but it is not disputed that it was filed before April 3, 1964. While the two appeals were pending in the High Court, Y. Prabhakar Reddy, one of the three claimants of the compensation for the acquired land, died on April 3, 1964. An application was made in the claimants appeal to bring his legal representatives on the record, and the High Court passed an order on July 14, 1964 (in C.M.P. 7284 of 1964) bringing appellants 4 to 9 on record as the legal representatives of Y. Prabhakar Reddy. It is admitted before me that that was done before the abatement of that appeal. It seems that no application was made in the government appeal to bring the legal representatives of the deceased respondent Y. Prabhakar Reddy on the record of that appeal. Both the appeals were, however, taken up for hearing together and were disposed of by a common judgment of the High Court dated February 4, 1969. The High Court dismissed the claimants appeal, but allowed the government appeal and reduced the price of the acquired land from Rs. 12 to Rs. 4 per square yard "with the usual solatium and interest at 4 per cent as allowed by the lower court". While the government felt satisfied with that judgment, the claimants applied for a certificate which was granted on the ground that the value of the subject-matter of the suit in the court of first instance was upwards of Rs. 20, 000 and the value of the subject-matter in dispute on appeal to this Court was also upwards of that amount and the decree appealed from did not affirm the decision of the lower court. On the strength of that certificate, the appellants have come up to this Court in appeal.

Reasoning: 5. But even if it were assumed that the government appeal deserved to be dismissed as a whole because of its abatement against the deceased respondent, there is no justification for Mr. Sens further argument that the High Courts decree dated February 4, 1969, was a nullity merely because it was passed against a dead person, namely, Y. Prabhakar Reddy. It has to be appreciated that a decree against a dead person is not necessarily a nullity for all purposes. It will be sufficient to say that such a decree has been held to be a nullity because it cannot be executed against his legal representative for the simple reason that he did not have a full opportunity of being heard in respect of it, and the legal representative cannot be condemned unheard. So if a respondent to an appeal dies, and the appeal abates because of the failure to bring him legal representative on the record within the time limited by law, and the appellate Court loses sight of that development or ignores it, it will still be permissible for the court hearing the appeal to bring his legal representative on the record on an application to that effect and to examine any application that may be made for condonation of the delay. It is also permissible, and is in fact the common practice, to remand the case for disposal according to law to the court in which it was pending at the time of the death of the deceased party. The law has therefore provided, and accepted, modes for reopening and hearing the appeal in such cases6. The basic fact remains that a decree against a dead person is treated as a nullity because it cannot be allowed to operate against his legal representative when he was never brought on the record to defend the case. Any other view would not be possible or permissible for it would fasten on him a liability for which he did not have any hearing. So while the law treats such decree as a nullity qua the legal representative of the deceased defendant or respondent, there is nothing to prevent him from deciding that he will not trust decree as a nullity, but will abide by it as it stands, or as it may be modified thereafter on appeal. If a legal representative adopts that alternative or course of action, it cannot possibly be said that his option to be governed by the decree is against the law concept of public police or purpose, or the public morality. It is thus a matter entirely at the discretion of the legal representative of a deceased respondent against whom a decree has been passed after his death to decide whether he will raise the question that the decree has become nullity, at the appropriate time, namely, during the course of the hearing of any appeal that may be filed by the other party, or to abandon that obvious technical objection and fight the appeal on the merits. He may do so either because of his faith in the strength of his case on the merits, or because of incorrect legal advice, or for the reason that he may not like to rely on a mere technical plea, or because in the case of cross-appeals, he may have the impression that bringing the legal representative of the deceased respondent on record in an appeal by a co-appellant will ensure for the benefit of or be sufficient for purposes of the cross-appeal. An abandonment of a technical plea of abatement and the consequential dismissal of the appeal, is therefore a matter at the discretion of the legal representative of the deceased respondent and there is no justification for the argument to the contrary. It is equally futile to argue that an appellate Court is denuded of its jurisdiction to hear an appeal in which one of the respondents has died and the right to sue does not survive against the surviving defendant or defendants alone merely because no application has been made to bring his legal representative on the record when no objection to that effect is raised by anyone7. But, as is equally obvious, it will not be fair to draw an inference as to the abandonment of such a plea of abatement unless there is clear, sufficient and satisfactory evidence to prove that the legal representative of the deceased respondent was aware of it and abandoned it wilfully. The following facts have been well established in this respect in the present caseAs that was not done by the High Court whether the government appeal was pending, there is no justification for the argument that the appeal automatically stood dismissed after the expiry of the period of 90 days from the death of respondent Y. Prabhakar Reddy on April 3, 1964 because of the abatement of the appeal against him10. In all these facts and circumstances, I have no doubt that any plea that may have been available to the legal representatives of the deceased Y. Prabhakar Reddy in the government appeal because of its abatement, was wilfully abandoned by them. Any other view of the matter will be unfair to the present respondents, because if any such objection had been taken in the High Court, they would have made an application for the setting aside of the abatement and condoning the delay, for whatever it was worth. It has to be appreciated that a point of defence which has been wilfully or deliberately abandoned by a party in a civil case, at a crucial stage when it was most relevant or material, cannot be allowed to be taken up later, at the sweet will of the party which had abandoned the point, or as a last resort, or as an afterthought. In fact in a case where a point has been wilfully abandoned by a party, even if, in a given case, such a conclusion is arrived at on the basis of his conduct, it will not be permissible to allow that party to revoke the abandonment if that will be disadvantageous to the other partyThose were therefore different observations which have no bearing on the present controversy for, as has been stated, the decision of the legal representative of a deceased respondent to be bound by a decree in spite of its abatement does not involve any question of public policy12. Mr. Sens reference to Maharana Shri Davlatsinghji Thakore Saheb of Limdi v. Khachar Hamir Mon (ILR 34 Bom 171 : 11 Bom LR 1330 : 4 IC 830); Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli ((1969) 1 SCC 873   : (1970) 1 SCR 51  ); Simpsonv. Crowle ((1921) 3 KB243); Chief Justice of Andhra Pradesh v. L. V. A. Dikshitulu ((1979) 2 SCC 34   : AIR 1979 SC 193  ) and P. Dass Muni Reddy v. P. Appa Rao ((1974) 2 SCC 725   : (1975) 2 SCR 32  ),is equally futile because they were cases of inherent lack of jurisdiction in the court concerned or raised the question of the bar of limitation. I have gone through the cases, but they are clearly distinguishable16. I find from the impugned judgment that the High Court first took into consideration all those factors which were in favour of the claimants, namely, the fact that the land was situated within the municipal limits of Kurnool town, it was within easy reach of the government hospitals, the railway station, the Medical College and the State Bank etc., it was suitable as a building site etc. The High Court also took due notice of the fact that although Kurnool was not made the capital of Andhra Pradesh, it was a growing town and had an importance of its own. It then examined those facts which persuaded it to reduce the market value. In doing so, it took note of the fact that the land under acquisition had been bought by the claimants themselves for Rs. 26, 000 on October 30, 1961, just eight months before the issue of the notification for its acquisition. That rate worked out to Rs. 2 per square yard. Then the High Court took into consideration the other facts that the claimants did not effect any improvement in the land after its purchase, it was not their case that the previous owner sold it for any compelling reason, the claimants were not even responsible for preparing the lay out plan for the locality (which had been accepted by the municipality even before they had purchased the land) and that they merely obtained the sanction of the Town Planning department to the lay out which had already been sanctioned. The High Court carefully examined the various sale agreements Exs. A3, A5, A7, A10, A12 and A14, and rejected them on the ground that they did not appear to be genuine and had mostly been executed on the same date. That left the two registered sale deeds Exs. A1 and A2 for consideration on which Mr. Sen has placed considerable reliance. The High Court noticed that they were for the sale of very small portions of land, namely, 3 cents and 5 cents, and did not think it proper to make them the basis for determining the value of a far larger piece of land. It cannot therefore be said that the High Court ignored or misread any important piece of evidence in arriving at its finding. As has been stated, the appellants bought the land for Rs. 26, 000, which worked out to Rs. 2 per square yard, and the High Court doubled that rate, and raised it to Rs. 4 per square yard even though the acquisition took place within a matter of the next eight months and the appellants did nothing to improve its value. To say the least, such a finding cannot be said to have been vitiated for any reason whatsoever so as to require reconsideration here.