B. Rajendran and B. Kannan and Krishnaswamy vs S.K. Bangaru Naidu and Others

N.V. Balasubramanian, J.—It is stated by the learned counsel for the respondents 3 and 4 that the first respondent is dead on 27-10-1989

and a memo was filed on 18-11-1989 after giving notice to the counsel for the appellants. In spite of the fact that the matter has been pending for

twelve years, no steps have been taken by the appellants to bring on record the legal representatives of the deceased first respondent. The appeal

is appearing before me in the list of final hearing cases from the month of October 2001. On 9-10-2001 at request of the counsel appearing for the

parties the appeal was adjourned to 12-10-2001 and when the appeal came up for hearing on 17-10-2001 it was adjourned at the request of the

counsel for the appellants for taking steps to bring the legal representatives of the deceased first respondent on record. On 2-11-2001 at the

request of the counsel for the appellants the matter was again adjourned to 16-11-2001 for taking steps to implead the legal representatives of the

deceased first respondent. Though the counsel for the appellants had taken several adjournments for impleading the legal representatives on record

of the deceased first respondent, no steps have been taken so far to bring the legal representatives of the deceased first respondent who died on

27.10.1989. Today the counsel for the appellant is absent.

Learned counsel for the respondents 3 and 4 has filed a memo under Order 22, Rule 10-A of CPC on 18-11-1989 and brought to the notice

of the Court about the death of the first respondent on 27.10.1989. The notice was also served on the counsel for the appellants. The respondents

3 and 4 in the appeal have filed a petition in C.M.P. No. 16425 of 1999 on 18.12.1999 for the issue of an order of injunction and in the affidavit

filed in support of the petition, the respondents 3 and 4 have stated that the first respondent died on 27.10.1989 which fact was laid before the

Court by memo filed on 18.11.1989. It is also stated in the said affidavit that the first respondent died leaving a will dated 18.1.1989 bequeathing

item No. 3 of the suit properties in favour of his daughter, by name, Vasantha Vimala and item No. 2 of the suit properties in favour of his

grandson. Ravi and the said deed was registered in the Office of the Sub-Registrar, Namakkal. The appellant has received a copy of the affidavit

and petition on 18.12.1989 itself. It is clear from the affidavit that apart from respondents 2 and 3 in the appeal who are the sons and the fourth

respondent who is the wife of the deceased first respondent, there is another legal representative, viz., Vasantha Vimala, daughter of the first

respondent, and some portion of the properties of the deceased first respondent was bequeathed in favour of his grandson, Ravi. The appellants in

spite of the knowledge about the existence of other legal representative have not taken any steps so far to bring the legal representative of the

deceased first respondent on record, and respondents 2 to 4 would not represent the entire estate as some portion of the properties of the first

respondent were bequeathed in favour of his daughter and grandson. Since the appellants have not taken any steps to bring all the legal

representatives on record, though two sons and the wife of the deceased first respondent are on record, the appeal as against the first respondent

would have to be dismissed as abated as the respondents 2 to 4 would not represent the entire estate, and accordingly, the appeal as against the

first respondent is dismissed as abated.

The next question that arises is whether this Court would be justified in proceeding with the appeal against other respondents. The case of the

first respondent is that the suit properties are his separate properties, but the case of the plaintiffs is that the properties are joint family properties.

The result of the dismissal of the appeal as against the first respondent on the ground that it is abated is that some portion of the properties is held

to be separate properties of the first respondent who has bequeathed the same by will in favour of his daughter and grandson. If this Court

proceeds with the Rearing of the appeal and holds that the suit properties are the joint family properties. It would result in a conflicting decree in

the sense that as against respondents 2 to 4 the properties would be held to be joint family properties whereas as against the first respondent, as

already held, the properties are to be separate properties. In my view, if I proceed with the hearing of the appeal with reference to other

respondents, it would result in a conflicting decree.

The Supreme Court in The State of Punjab Vs. Nathu Ram, was dealing with a case of acquisition of land jointly owned by two brothers.

During the pendency of the appeal, one of the brother died and since no legal representative was brought on record, the appeal against the

deceased brother was dismissed as abated. The question arose before the Supreme Court whether it is impermissible to proceed with the appeal

against the other brother. The Supreme Court came to the conclusion that in the success of the appeal if the Court gave a conflicting decision

between the appellant and the deceased respondent, it would lead to passing of a decree which would be contrary to the decree which had

become final with respect to the same subject matter between the appellant and the deceased respondent and hence, the Court would not proceed

with the appeal. Following the principle laid down by the Supreme Court in The State of Punjab Vs. Nathu Ram, , I hold that since the appeal has

been dismissed as abated as against the first respondent, if I proceed with the appeal as against other respondents and if the appeal is also allowed,

it may result in a conflicting decree between the first respondent and other respondents. In this view of the matter, I am not inclined to proceed with

the appeal and hence, the entire appeal is dismissed. However, in the circumstances, there will be no order as to costs. Consequently, C.M.P. No.

28651 of 1997 to receive additional documents is dismissed.