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. 2 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 3 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.

(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be 8 recovered from the estate of the deceased plaintiff.”

11. In this case having noted pleadings and the relief sought we can proceed on the basis that it was the appellant’s case that the plaintiff’s 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 12 adoption of the 1st defendant by the 2nd 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 13 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 conflicting.

14. In Ram Sarup vs. Munshi & Ors. (supra), nine persons instituted a suit for ejectment and recovery of rent against two defendants. The suit was decreed. In an appeal by the defendants, the decree of the Trial Court was set aside against the second defendant. During the pendency of the second 23 appeal filed by all the plaintiffs, one of them died. His LRs were not brought on record and the appeal abated as far as such appellant was concerned. The objection raised by the respondents that the appeal could not be proceeded with as the appeal abated as a whole, was accepted. An attempt was made under Order XXII Rule 2 by contending that the nine appellants constituted a Joint Hindu Family and on the death of one of the appellants, the right to sue survived in favour of the remaining appellants, as at that time the Hindu Succession Act had not been passed, was repelled on facts by holding that the appellants did not constitute a Joint Hindu Family. Further attempt to draw support from Order XLI Rule 4, namely, that the appeal proceeded on a ground common to all the plaintiffs and defendants, and any one of the plaintiffs /defendants may appeal from the whole decree and the decree could be reversed 24 or varied in favour of the plaintiffs or defendants was not accepted as it was found that Order XLI Rule 4 only enabled one of the plaintiffs/defendants to file an appeal and it would not apply in a case where all the plaintiffs had filed the second appeal. The Court took the view that the appeal abated as a whole as all the appellants had a common right in getting an ejectment against the second defendant and such a decree was on a ground common to all of them. It was further found that the defendants could not be ejected from the premises when he had a right to remain in occupation on the basis of a decree holding that a deceased-appellant, one of the persons having joint interest in letting out property could not have ejected him. It was further held that it was not possible for the defendant to continue as tenant of one of the landlords and not as a tenant of the 25 others when all of them had a joint right to eject or to have him as their tenant.

Whether the decree if passed by the appellate court 37 in favour of the appellant would result in a decree which is contradictory to the decree passed by the trial Court.

20. 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 41 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 law.

21. 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 42 of the other. In one, the suit is dismissed whereas in the other, the suit would have been decreed.

22. 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. In such circumstances, the mere fact that the appellant was permitted to prosecute the appeal by an interlocutory order would not be sufficient to tide over the legal obstacle posed by the inconsistent 43 decree which emerges as a result of the failure to substitute legal representative of the late brother and the abating of the appeal filed by his late brother. Consequently, we see no merit in the appeal. It is accordingly dismissed.

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