HEMAREDDI (D) THROUGH LRS. versus RAMACHANDRA YALLAPPA HOSMANI AND ORS.
[2019] 7 S.C.R. 262, Supreme Court of India, 2019
Outcome: Dismissed (Dismissed)
Segment: Ratio
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HEMAREDDI (D) THROUGH LRs.
v.
RAMACHANDRA YALLAPPA HOSMANI AND ORS.
(Civil Appeal No. 4103 of 2008)
MAY 07, 2019
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Code of Civil Procedure, 1908 – Or.XXII, rr.2, 3 & 4 and
Or.41 – Plaintiffs’ (appellant and his late brother) case that one ‘G’
died leaving behind two sons (‘SR’ and ‘B’) and a daughter –
Plaintiffs were the children of ‘SR’ – Plaintiffs filed suit against the
second defendant, wife of ‘B’ for declaration that she had no right
in the suit property and that the document of adoption dtd. 27.04.91
adopting the first defendant was a false document – Trial Court
dismissed the suit and upheld the adoption – Plaintiffs preferred
first appeal before the High Court – During the pendency of the
appeal, the second plaintiff/second appellant therein died – His
LRs were not brought on record – High Court held that the appeal
abated not only qua the second appellant/plaintiff but as a whole –
Held: Or.XXII, r.3 is applicable also to appeals filed u/Or.41 –
Or.XXII, r.3 therefore is applicable when either a suit or an appeal
is filed by more than one plaintiffs/appellants and on the death of
one of the plaintiffs/appellants, 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 – On that not
being done, the proceeding will abate as far as the deceased party
is concerned – In the
present case, there were legal representatives
available for the appellant’s deceased brother– Admittedly, steps
were not taken for their substitution– Appeal, therefore, abated qua
the deceased brother and the decree of the trial Court became final
qua him – Effect of the same is that the adoption is found legal –
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 to
the effect that the adoption is invalid – It would be absolutely contrary
to the decree which has also attained finality between his late brother
and the defendants – Both the inconsistent decrees cannot stand
together – There would be irreconcilable conflict – Defendants are
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common and would be faced with two decrees regarding the same
subject matter – Appellant and his late brother sued as plaintiffs
for declaration that the first defendant was not the adopted son
and has no rights – Right set up by them was joint – They were
members of the joint Hindu family consisting of late ‘G’, their father
‘SR’ and ‘B’ – This is not a case where their claims were distinct –
Mere fact that the appellant was permitted to prosecute the appeal
by an interlocutory order by the High Court would not be sufficient
to tide over the legal obstacle posed by the inconsistent 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.
Practice & Procedure – Procedural requirement vis-a-vis
principle of substantive law – Discussed.
Dismissing the appeal, the Court
HELD: 1.1  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. There can be no doubt that Order XXII, Rule 3,
CPC 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 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
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YALLAPPA HOSMANI
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abate as far as the deceased party is concerned. 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 whole.[Paras 7-9] [270-A-B; F-H;
271-A-C]
1.2  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 conflicting. Order XXII, Rule 3
provides for the converse of Order XXII, Rule 4. That is to say
Order XXII, Rule 3 deals with a case where one or more plaintiffs
or appellants or the sole plaintiff or sole appellant dies during
the pendency of the suit or appeal.  Order XXII, Rule 4 on the
other hand deals with a case where one or more of the defendants
in the suits or sole defendant or the respondents or sole
defendant in the appeal dies.  In 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
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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. 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 appeal.  [Paras 11, 13] [271-H-;
272-A-B; 276-C-F]
1.3  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. Taking the converse position
and  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. The appellate court would indeed have
to refuse to proceed with the appeal on the basis that allowing
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YALLAPPA HOSMANI
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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 appellant. The situation cannot
be any other different, when the converse of the aforesaid scenario
is contemplated 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
‘G’, their father ‘SR’ and ‘B’. This is not a case where their claims
were distinct claims.  [Paras 18, 19] [284-D-H; 285-A-C]
1.4  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 law.  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 decreed. 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
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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
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.  [Paras 20-22] [285-D-H; 286-A-C]
Sardar Amarjit Singh Kalra (Dead) by LRS. and Others
v. Pramod Gupta (Smt) (D) by LRS. And Others ; 2003
(3) SCC 272 : [2002] 5 Suppl. SCR 350 ; State of
Punjab v. Nathu Ram AIR 1962 SC 89 : [1962] SCR 
636 ; Ram Sarup v. Munshi & Ors. [1963] 3 SCR 858 –
relied on.
Harihar Prasad Singh and Others v. Balmiki Prasad
Singh and Others 1975 (1) SCC 212 : [1975] 2 SCR 
932 – referred to.
Case Law Reference
[2002] 5 Suppl.  SCR 350
relied on
Para 5
[1962]  SCR  636
relied on
Para 12
[1963] 3 SCR 858
relied on
Para 13
[1975] 2 SCR  932 
referred to
Para 15
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4103
of 2008.
From the Judgment and Order  dated 02.09.2006 of the High
Court of Karnataka at Bangalore in R.F.A. No. 717 of 1998.
V. N. Raghupathy, Chinmay Deshpande, Advs. for the Appellants.
Ashok Kumar Sharma, Mrs. Bandana Singh, Kshitij Mudgal,
Deepak Jyoti Ghildiyal, Advs. for the Respondents.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. This appeal by special leave is directed against the order of the
High Court in Regular First appeal No.717 of 1998.
By the impugned
judgment, the High Court has taken the view that the appeal filed by the
appellant does not survive for consideration.  This is on the following
reasoning:
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YALLAPPA HOSMANI
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The appeal was filed by the appellant and his late brother against
the judgment by the trial court dismissing the suit filed by them.
The relief in the suit was to declare that defendant No.1 was not
the adopted son and he has no title or interest over the suit property
and for prohibitory injunction against the defendant not to disturb
the joint possession of the suit agricultural land of the plaintiff and
defendant No.2.
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.
3. We have heard learned counsel for the parties.
4. Learned counsel for the appellant drew our attention to the
following orders passed by the High Court in the appeal and referred to
in the impugned judgment:
“8. When the matter was listed on 20th July, 2001, this court
observed thus:
It is stated by the learned counsel for the appellant that the
second appellant (plaintiff No.2) is died and in view of the
death of second appellant, the matter is adjourned by two weeks
to enable the appellants’ counsel to take steps.”
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9. The appeal was relisted on 10.09.2001.  This court has
observed thus:
Hence the appeal filed against the appellant No.2 abates.
Memo filed by appellant No.1 submitting himself and appellant
No.2 are brothers and co-owners of suit schedule property.
Since the LRs of appellant No.2 have not evinced interest to
prosecute the appeal, appellant No.1 prays permission to
prosecute the appeal.  Accordingly, permission is granted.”
5. Learned counsel for the appellant would contend that the
appellant herein could have filed a separate suit seeking the same relief.
Learned counsel for the appellant relied upon the order passed on
10/09/2001 and contended that though the LRs of the appellant No.2 did
not evince interest to prosecute the appeal, the petitioner who is appellant
No.1 prayed for permission to prosecute the appeal.  The permission
was granted by the High Court. The respondents did not oppose the
prosecution of the appeal filed by the appellant despite knowing that the
second appellant did not choose to get themselves impleaded and the
appeal would have abated qua him also.  According to the appellant this
would stand in the way of the court and the respondents from proceeding
on the basis that the appeal has abated as a whole.  In other words, he
contended that estoppel will operate against the appeal being dismissed
on the death of the second appellant, and on the basis that the appeal has
abated as a whole.  He also drew our attention to the
judgment of this
Court in Sardar Amarjit Singh Kalra (Dead) BY LRS. and Others v.
Pramod Gupta (Smt) (D) BY LRS. And Others; 2003 (3) SCC 272.
6. Per contra, learned counsel appearing for the respondents
supported the order of the High Court.  He contended that the order
passed by the High Court will not operate as estoppel estopping them
from contending that the appeal has abated as a whole.  There would be
conflict of decrees, as on the one hand, the trial Court has passed a
decree upholding the adoption, and even if the High Court were to allow
the appeal filed by the appellant and hold that the adoption was invalid,
there will be two conflicting decrees, one by the trial Court which as far
as the deceased second appellant is concerned, has become final and
another by the High Court taking a contrary view.  This is not
contemplated in law and therefore, the reasoning of the High Court is
only to be supported.
HEMAREDDI (D) THROUGH LRs. v. RAMACHANDRA
YALLAPPA HOSMANI [K. M. JOSEPH, J.]
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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.
Order XXII Rule 3 C.P.C.
“3. Procedure in case of death of one of several plaintiffs or
of sole plaintiff
    (1) Where one of two or more plaintiffs dies and the right to
sue does not survive to the surviving plaintiff or plaintiffs alone, or
a sole plaintiff or sole surviving plaintiff dies and the right to the
sue survives, the Court, on an application made in that behalf,
shall cause the legal representative of the deceased plaintiff to be
made a party and shall proceed with the suit.
    (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 recovered from the estate of the deceased
plaintiff.”
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 concerned.
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9. Let us first of all examine whether the right to sue survived to
the appellant alone or the right to sue was available to the LRs of the
deceased appellant as well.  It 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 whole.
10. The question which we are called upon to answer is whether
this is such a case?  The 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 property.
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 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
HEMAREDDI (D) THROUGH LRs. v. RAMACHANDRA
YALLAPPA HOSMANI [K. M. JOSEPH, J.]
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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 conflicting.
12. In State of Punjab vs. Nathu Ram AIR 1962 SC 89, the
Punjab Government had acquired certain pieces of land belonging to
two brothers. Upon their refusal to accept the compensation offered,
their joint claim was referred to arbitration on the basis that the land
belong to them jointly.  An award was passed in their favour.  The
Government appealed before the High Court.  During pendency of the
appeal, one of the brothers died.  No application was filed to bring on
record his LRs within the time limit.  The High Court dismissed the
appeal and reasoned that it abated against the person who has died and
the appeal abated as a whole.  It is useful to advert to what this Court
has laid down in State of Punjab vs. Nathu Ram (Supra) at pages 638-
640:
………… “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 O. 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.
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The same conclusion is to be drawn from the provisions of
O.I, 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 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 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.
There has been no divergence between the Courts about the
Court’s proceeding with the appeal between the respondents other
than the deceased respondent, when the decree in appeal was
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YALLAPPA HOSMANI [K. M. JOSEPH, J.]
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not a joint decree in favour of all the respondents. The abatement
of the appeal against the deceased respondent, in such a case,
would make the decree in his favour alone final, and this can, in
no circumstances, have a repercussion, on the decision of the
controversy between the appellant and the other decree-holders
or on the execution of the ultimate decree between them.
The difficulty arises always when there is a joint decree. Here
again, the consensus of opinion is that if the decree is joint and
indivisible, the appeal against the other respondents also will not
be proceeded with and will have to be dismissed as a result of the
abatement of the appeal against the deceased respondent.
Different views exist in the case of joint decrees in favour of
respondents whose rights in the subject matter of the decree are
specified. One view is that in such cases, the abatement of the
appeal against the deceased respondent will have the result of
making the decree affecting his specific interest to be final and
that the decree against the other respondents can be suitably dealt
with by the appellate Court. We do not consider this view correct.
The specification of shares or of interest of the deceased
respondent does not affect the nature of the decree and the
capacity of the joint decree-holder to execute the entire decree or
to resist the attempt of the other party to interfere with the joint
right decreed in his
favour. The abatement of an appeal means
not only that the decree between the appellant, and the deceased
respondent has become final, but also, as a necessary corollary, that
the appellate Court cannot, in any way, modify that decree directly
or indirectly. The reason is plain. It is that in the absence of the
legal representatives of the deceased respondents, the appellate
Court cannot determine anything between the appellant and the
legal representatives which may affect the rights of the legal
representatives under the decree. It is immaterial that the
modification which the Court will do is one to which exception
can or cannot be taken.”
(Emphasis supplied)
The attempt of the State to contend that the brothers had equal
share of land in the village records and therefore, the appeal should be
proceeded with did not appeal to the court.  This Court further proceeded
to observe that the brother has made a joint claim and had a joint decree
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and the frame of the appeal was with reference to the decree challenged.
The appeal failed.  It will be immediately noticed that this was a case
which involved Order XXII Rule 4.  Order XXII Rule 4 reads as follows:
“4. Procedure in case of death of one of several defendants or of
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.
    (2) Any person so made a party may make any defence
appropriate to his character as legal representative of the deceased
defendant.
   (3) Where within the time limited by law no application is made
under sub-rule (1), the suit shall abate as against the deceased
defendant.
 (4) The Court whenever it thinks fit, may exempt the plaintiff
from the necessity of substituting the legal representatives of any
such defendant who has failed to file a written statement or who,
having filed it, has failed to appear and contest the suit at the
hearing; and judgment may, in such case, be pronounced against
the said defendant notwithstanding the death of such defendant
and shall have the same force and effect as if it has been pronounced
before death took place.”
13. The next decision we
would notice is the decision in Ram
Sarup vs. Munshi & Ors. 1963 (3) SCR 858.  The case involved the
death of one of the respondents during the pendency of the appeal filed
by the State. The question involved was whether the right of preemption
would continue to be available despite the repeal of the Punjab Alienation
of Land Act, 1900. In one of the civil appeals, the pre-emptors who
claimed the right of pre-emption who were 4 in number, obtained a decree
against the vendees.  The appellant vendees had purchased the property
for Rs. 22,750/-.  The appellant Nos.1 and 2 paid one half amounting to
Rs.11,375/-.  The other 3 appellants paid the other half.  The sale deed
showed that it was not a case of sale of separate items in favour of
deceased-appellant but of one entire set of properties enjoyed by two
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set of vendees in equal share.  Pending the appeal by the appellants
vendees, the first appellant died and it abated as against him.  In this set
of facts this Court proceeded to hold that the decree being a joint decree
and a part of the decree has become final by reason of the abatement,
the entire appeal would abate.  The reasoning was there could be no
partial pre-emption because pre-emption was the substitution of pre-
emptors in place of the vendees and it was found that if the decree in
favour of the pre-emptors in respect of the share of the deceased vendee
appellant had become final there would be two conflicting decrees if the
appeal were to be allowed and the decree of pre-emption insofar as
appellants 2 to 5 were concerned was interfered with.  It must at once
be noticed that Order XXII Rule 3 provides for the converse of Order
XXII Rule 4. That is to say Order XXII Rule 3 deals with a case where
one or more plaintiffs or appellants or the sole plaintiff or sole appellant
dies during the pendency of the suit or appeal.  Order XXII Rule 4 on
the other hand deals with a case where one or more of the defendants in
the suits or sole defendant or the respondents or sole defendant in the
appeal dies.  In 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 appeal.
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 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
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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 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 others when all
of them had a joint right to eject or to have him as their tenant.
15. In the judgment of this Court in Harihar Prasad Singh and
Others vs. Balmiki Prasad Singh and Others  1975 (1) SCC 212, the
issue involved was the acceptability of a custom set up by the plaintiff
was that they were Bhumidar Brahmins by caste and under which custom
more distant heirs than the shastric heirs also joined the latter in succession
of a separate male member dying without any issue and leaving any
widow. A preliminary objection was also raised that the appeal itself
abated under the following facts:
Plaintiff No.29 died in 1953.  His widow and son were substituted.
With the coming into force of the Hindu Succession Act, the share
of the widow in her husband’s estate became a full estate.  The
widow, in turn, died in 1967.  She left behind her daughter and her
son.  The son had already been impleaded upon the death of his
father.  The decree it was pointed out was one and indivisible and
the whole appeal had abated, upon the widow dying not having
impleaded her daughter, the whole appeal abated.  This argument
was repelled after referring to all the authorities.  This Court in
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Harihar Prasad Singh and Others vs. Balmiki Prasad Singh
and Others (Supra) took the view inter alia as follows:
“32. The important point to note about this litigation is that
each of the reversioners is entitled to his own specific share.
He could have sued for his own share and got a decree for his
share. That is why five title suits Nos.53 and 61 of 1934 and
20, 29 and 41 of 1935 were filed in respect of the same estate.
In the present case also the suit in the first instance was filed
by the first and second plaintiffs for their one-twelfth share.
Thereafter many of the other reversioners who were originally
added as defendants were transposed as plaintiffs. Though
the decree of the trial Court was one, three appeals Nos.326,
332 and 333 of 1948 were filed by three sets of parties.
Therefore, if one of the Plaintiffs dies and his legal
representatives are not brought on record the suit or the appeal
might abate as far as he is concerned but not as regards the
other plaintiffs or the appellants.”
(Emphasis Supplied)
16. The last judgment we would like to refer to is the judgment
relied on by the appellants and that is the judgment of the Constitution
Bench in Sardar Amarjit Singh Kalra (Dead) by LRS. & Ors. vs.
Pramod Gupta (Smt.)(Dead) by LRS. & Ors. 2003 (3) SCC 272.  In
the said judgment the matter arose under the Land Acquisition Act.  The
facts set out indicate inter alia that a joint appeal was filed by a
number
of proprietors.  However, the court found that they had distinct and
independent claims.  The three different categories of claimants before
the Land Acquisition Collector were noted as follows:
“3. An extent of about 5500 bighas of land described as “gair
mumkin Pahar” (uncultivable mountainous area) situated at
Masudpur Village within the Union Territory of Delhi was acquired
by the Government for planned development of Delhi. Notifications
were issued: (1) on 24.10.1961 for acquisition of 720 bighas and 4
biswas out of 4307 bighas and 18 biswas under Section 4 of the
Land Acquisition Act, 1894 (hereinafter referred to as “the Act”).
It may be stated at this stage itself that an extent of 390 bighas of
land notified on 24.10.1961 and acquired by passing the award in
Award No.1944 does not form the subject-matter of these
proceedings. Declarations under Section 6 of the Act were issued
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on 6.8.1966. In the course of the award enquiry claims were filed
before the Land Acquisition Collector by three categories of
claimants as hereunder:
i)
Claims by the Union of India and the Gaon Sabha that the
lands acquired stood vested with the Gaon Sabha they being
“wasteland” under Section 7 of the Delhi Land Reforms
Act, 1954. This claim proceeded on the basis that not only
was it `waste land’ but also the Bhumidari Certificate issued
in favour of Smt. Gulab Sundari was invalid and non est in
law.
ii) The other class of claims were from the Proprietors/co
owners on the basis that the acquired land was not “land”
as defined under Section 3(13) of the Delhi Land Reforms
Act, since they were being used for non-agricultural
purposes and therefore, they neither could be said to be
“wasteland” nor could be held to have vested in the Gaon
Sabha, for either of them to claim any title to the lands in
question and, therefore, they continued to be proprietors of
the soil and as such entitled to the compensation for
themselves.
iii) Yet another claim was from Smt. Gulab Sundari and her
transferees of portions of the rights over the land on the
ground that she was the Bhumidhar of the land measuring
about 4307 bighas and 18 biswas and those lands were
part of her bhumidhari-holding out of which she also claimed
to have transferred rights in an extent of 3500 bighas of
undivided holding in favour of the other private respondents
claimants.”
There were three sets
of appeals.  This Court proceeded to notice
the entire case law.  Paragraph 25 and 26 of the said judgment is extracted
hereinbelow:
“25.
……….The claim of each one was in respect of his
distinct, definite and separate share and their respective rights
are not interdependant but independent. Among themselves there
is no conflicting or overlapping interest and the grant of relief to
one has no adverse impact on the other(s). The mere fact that
there was no division by metes and bounds on state of ground is
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no reason to treat it to be a joint right-indivisible in nature to be
asserted or vindicated only by all of them joining together in the
same proceedings, in one capacity or the other. As a matter of
fact, separate claims seem to have been filed by them before the
Reference Court in respect of their own respective share. Even
if they have engaged a common counsel or even if they have filed
one claim in respect of their specified separate share, it could not
have the effect of altering the nature of their claim or the character
of their right so as to make it an indivisible joint right. Though the
Reference Court has decided all such claims together, having
regard to the similarity or identical nature of issues arising for
consideration of the claims, in substance and reality the proceedings
must be considered in law to be of multifarious claims disposed of
in a consolidated manner resulting in as many number of awards
of the Reference Court as there were claimants before it. There
was no community of interest between them and that each one of
them in vindicating their individual rights was not obliged to implead
the other claimants of their shares in one common action/
proceeding and the orders/judgment though passed in a consolidated
manner, in law, amounts to as many orders or judgments as there
were claimants and, by no reason, can it be branded to be a joint
and inseverable one. Similarity of the claims cannot be
a
justification in law to treat them as a single and indivisible claim
for any or all purposes and such a thing cannot be legitimately
done without sacrificing the substance to the form. The claim on
behalf of the respondents that the compensation awarded is of a
lump sum, though shares are divided, is belied by the scheme
underlying Sections 11, 18, 30 and 31 of the Act, and cannot be
countenanced as of any merit. Against the Award of the Reference
Court in this case, it was possible and permissible in law for every
one of the appellants to file an appeal of his own separately in
respect of his share without any need or obligation to implead
every other of the claimants like him, as party-respondent or as
co-appellant, because there is no conflicting interest or claims
amongst them inter se. As such, the alleged and apprehended
fear about possible inconsistent or conflicting decrees resulting
therefrom if the appeals are proceeded with and disposed of on
merits has no basis in law nor is well founded on the facts and
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circumstances of these cases. Even if the appellants succeed on
merits, dehors the fate of the deceased appellants the decree
passed cannot either be said to become ineffective or rendered
incapable of successful execution. To surmise even then a
contradictory decree coming into existence, is neither logical nor
reasonable nor acceptable by courts of Law. Otherwise, it would
amount to applying the principle of vicarious liability to penalize
someone for no fault of his and denial of one’s own right for the
mere default or refusal of the other(s) to join or contest likewise
before the court. The fact that at a given point of time all of them
joined in one proceedings because one court in the hierarchy has
chosen to club or combine all their individual and separate claims
for the purpose of consideration on account of the similarity of
the nature of their claims or that for the sake of convenience they
joined together for asserting their respective, distinct and
independent claims or rights is no ground to destroy their individual
right to seek remedies in respect of their respective claims. In
cases of this nature, there is every possibility of one or the other
among them subsequently reconciling themselves to their fate and
settle with their opponents or become averse to pursue the legal
battle forever so many reasons, as in the case on hand due to
disinterestedness, indifference or lethargy and, therefore, the
attitude, approach and resolve of one or the
other should not
become a disabling or disqualifying factor for others to vindicate
their own individual rights without getting eclipsed or marred by
the action or inaction of the others……….”
“26. Laws of procedure are meant to regulate effectively, assist
and aid the object of doing substantial and real justice and not to
foreclose even an adjudication on merits of substantial rights of
citizen under personal, property and other laws. Procedure has
always been viewed as the handmaid of justice and not meant to
hamper the cause of justice or sanctify miscarriage of justice. A
careful reading of the provisions contained in Order 22 CPC as
well as the subsequent amendments thereto would lend credit
and support to the view that they were devised to ensure their
continuation and culmination in an effective adjudication and not
to retard the further progress of the proceedings and thereby non-
suit the others similarly placed as long as their distinct and
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independent rights to property or any claim remain intact and not
lost forever due to the death of one or the other in the proceedings.
The provisions contained in Order 22 are not to be construed as a
rigid matter of principle but must ever be viewed as a flexible tool
of convenience in the administration of justice. The fact that the
Khata was said to be joint is of no relevance, as long as each one
of them had their own independent, distinct and separate shares
in the property as found separately indicated in jamabandi itself of
the shares of each of them distinctly……………”
Thus, the Court highlighted the need to apply laws of procedure in
a manner so that substantial justice is facilitated. The Court further held
as follows:
“30. The question, therefore, as to when a proceeding before
the Court becomes or is rendered impossible or possible to be
proceeded with, after it had partially abated on account of the
death of one or the other party on either side has been always
considered to depend upon the fact as to whether the decree
obtained is a joint decree or a severable one and that in case of a
joint and inseverable decree if the appeal abated against one or
the other, the same cannot be proceeded with further for or against
the remaining parties as well. If otherwise, the decree is a joint
and several or separable one, being in substance and reality a
combination of many decrees, there can be no impediment for the
proceedings being proceeded with among or against those
remaining parties other than the deceased. As observed in Nathu
Ram case (supra) itself, the Code does not itself provide for the
abatement of the appeal against the other respondents even where,
as against one such it has abated but it is only the courts which
have held that in certain circumstances the appeal also would
abate against a co-respondent as a result of abatement against
the deceased respondent. The same would be the position of an
appeal vis-a-vis the appellants, as in the other cases. Order 22
Rule 4 also was considered not to provide for abatement of the
appeal(s) against the co-respondents of the deceased respondent
and it was specifically observed therein that to say that the appeals
against them also abated in certain circumstances is not a correct
statement. It was held that the appeals against such other
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respondents cannot be proceeded against and, therefore, had to
be dismissed, in certain circumstances.”
(Emphasis Supplied)
“34.
In the light of the above discussion, we hold: -
(1) Wherever the plaintiffs or appellants or petitioners are found
to have distinct, separate and independent rights of their own and
for purpose of convenience or otherwise, joined together in a single
litigation to vindicate their rights, the decree passed by the court
thereon is to be viewed in substance as the combination of several
decrees in favour of one or the other parties and not as a joint and
inseverable decree. The same would be the position in the case
of defendants or respondents having similar rights contesting the
claims against them.
(2) Whenever different and distinct claims of more than one
are sought to be vindicated in one single proceedings, as the one
now before us, under the Land Acquisition Act or in similar nature
of proceedings and/or claims in assertion of individual rights of
parties are clubbed, consolidated and dealt with together by the
courts concerned and a single judgment or decree has been passed,
it should be treated as a mere combination of several decrees in
favour of or against one or more of the parties and not as joint and
inseparable decrees.
(3) The mere fact that the claims or rights asserted or sought
to be vindicated by more than one are similar or identical in nature
or by joining together of more than one of such claimants of a
particular nature, by itself would not be sufficient in law to treat
them as joint claims, so as to render the judgment or decree passed
thereon a joint and inseverable one.
(4) The question as to whether in a given case the decree is
joint and inseverable or joint and severable or separable has to be
decided, for the purposes of abatement or dismissal of the entire
appeal as not being properly and duly constituted or rendered
incompetent for being further proceeded with, requires to be
determined only with reference to the fact as to whether the
judgment/decree passed in the proceedings vis-a-vis the remaining
parties would suffer the vice of contradictory or inconsistent
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decrees. For that reason, a decree can be said to be contradictory
or inconsistent with another decree only when the two decrees
are incapable of enforcement or would be mutually self-destructive
and that the enforcement of one would negate or render impossible
the enforcement of the other.”
(Emphasis Supplied)
17. 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 Court.
18. 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
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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 appellant.
19. 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 case.
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 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 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
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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 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.
Divya Pandey
Appeal dismissed.