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Judgment
Bellie, J.—The plaintiff Chellakannu Pillai is the appellant. He filed the suit in respect of four schedules of properties. A decree has been
passed in respect of the first schedule, but the suit has been dismissed in respect of schedules 2,3 and 4. Now in the appeal we are concerned with
only the dismissal of the suit as regards schedules 2,3 and 4.
Regarding these items of properties the case of the plaintiff is as follows:
The four schedule properties originally belonged to one deceased Papanasam Pillai who was the plaintiffs paternal aunt''s son. He had no issues for
a long time. Therefore, he brought up the plaintiff as one of his family members from his young age of 5 years. The plaintiff was assisting
Papanasam Pillai in managing his large properties and his coffee hotel. Papanasam Pillai also celebrated the marriage of the plaintiff in his house at
his expense on 1.12.1957 and even thereafter the plaintiff was living with Papanasam Pillai as a member of his family. While so on 13.12.1957
Papanasam Pillai had executed a settlement deed in respect of the plaint first schedule properties under which the plaintiff would have life interest
and his (plaintiffs) heirs will have the residuary right. After the death of Papanasam his wife gave birth to a female child and that child is the first
defendant minor P. Vembu. A few days thereafter the first defendant''s mother also died. The plaintiff brought up the child.
On the death of Papanasam Pillai the plaint 2nd, 3rd, 4th schedule properties devolved upon the minor first defendant and Papanasam Pillai''s
mother Mariyammal. First defendant was entitled to 2/3rd share and Mariyammal was en titled to 1/3rd share. On 6.7.1966 Mariyammal out of
her own free will and volition executed a registered will in favour of the plaintiff bequeathing her the said 1/3rd share. Now that Mariyammal is
dead, the plaintiff is entitled to 1/3rd share. The second defendant is the maternal uncle of the first defendant. He filed O.P. No. 75 of 1972 in the
District Court, Tirunelveli for appointment of a guardian for the minor first defendant. The plaintiff was the first respondent therein. The petition was
resisted by the plaintiff expressing his willingness to be the guardian of the person and properties of the minor. After enquiry, on 22.11.1974 the
plaintiff was appointed as the personal guardian and Thiru A. P.Raja Singh as property guardian of the minor. The third defendant is claiming some
interest over the suit properties. Now there is trouble and inconvenience in enjoying the properties jointly and therefore the suit had to be filed for
partition. Hence the suit.
In the written statement filed by the first defendant minor through the Court guardian it is submitted that the first defendant had no personal
knowledge about the averments in the plaint and therefore the plaintiff is put to strict proof thereof.
The second defendant in his written statement would contend in so far as the schedules 2,3 and 4 are concerned that the Will referred to by the
plaintiff was not executed by Mariyammal out of her free will and volition and therefore the plaintiff had no right in it.
The third defendant (neither in the plaint nor in the written statement of the third defendant her relationship with Mariyammal is mentioned. It
appears from the evidence that she is the daughter of Mariyammal) in her written statement would contend that the Will propounded by the plaintiff
is not true and valid, and it had been fraudulently fabricated by the plaintiff. After Mariyammal her 1/3 share devolved upon the first defendant and
this defendant, and this defendant would get 1/6 share.
The trial court on considering the evidence adduced in the case, as stated above, as regards plaint first schedule property passed a decree, but
as regards the plaint, second, third and fourth schedule properties it held that the Will Ex.A-3 dated 16.7.1966 relied on by the plaintiff is not true,
valid and binding. Therefore the trial Court dismissed the suit as regards the plaint schedules 2,3 and 4. Hence this appeal by the plaintiff.
Mr. K. Sampath, learned Counsel appearing for the respondents in the appeal took a, preliminary objection to the hearing of the appeal
contending that (a) as against the sixth respondent the appeal abated since no legal representative of the said deceased respondent has been
brought on record in time, and (ii) to the eighth respondent no notice of appeal has been taken and therefore the appeal was dismissed as against
the eighth respondent, and this being the case, in the appeal the Judgment of the Court below cannot be varied if the appellant is to succeed since
the Judgment in the appeal would be in conflict with the Judgment of the Court below as regards respondents 6 and 8.
On a careful consideration of the matter I find much force in this argument. From the records it is found that originally there were three
respondents. The first and third respondents died. The appellant filed two petitions for impleading the legal representatives of the deceased first and
third respondents, but the legal representatives sought to be impleaded in both the petitions were same persons. Those petitions were allowed and
the legal representatives were impleaded as respondents 4 to 9. Subsequently the fourth respondent died. A petition was filed for impleading the
legal representatives of this respondent, and respondents 10 to 15 were impleaded.
Notice of appeal was ordered to the newly impleaded respondents. Batta was not paid for service of notice of appeal to respondents 6 and 8
and consequently the appeal was dismissed for default as against them. A petition C. M. P. No. 9326 of 1987 was filed for setting aside the said
order of dismissal of the appeal as against respondents 6 and 8. In the meanwhile sixth respondent died. No step was taken to bring her legal
representative on record in that petition within the time. As regards eight respondent three notices were issued but they have been returned with the
endorsement ""no residence"". Substituted service was ordered but the appellant did not pay Batta for substituted service. Therefore C. M. P. No.
6326 of 1987 was dismissed. As such the appeal stands dismissed as against respondents 6 and 8.
Now, it is not in dispute that the respondents 6 and 8 against whom the appeal stands dismissed will have some right in the 1/3 share of
Mariyammal in respect of which according to the plaintiff she has executed a Will Ex.A-3 in his favour. The trial Court has held that the Will is not
true and valid, and therefore it dismissed the suit as regards the plaint items 2 to 4 covered by the said Will.
Now, if the appeal were to be allowed holding that the Will is true and valid then the plaintiff will have right in the 1/3 share of Mariyammal.
But this would be against the Judgment of the Court below under which respondents 6 and 8 would claim a right. In this connection Mr. Sampath
in support of his contention cited a decision of the Supreme Court in The State of Punjab Vs. Nathu Ram, wherein a question arose whether, when
one of the respondents died and his legal representatives were not brought on record and therefore the appeal as against him abated, the appeal as
against the other respondents also abated or not. The Supreme Court said as follows:
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 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.
Thus the Supreme Court has given three circumstances in which when the appeal abated in respect of one of the respondents the appeal cannot be
proceeded with against the other respondents. In our case the appeal has been dismissed as against two respondents. In my view all the three
circumstances stated by the Supreme Court in which the appeal cannot be heard against the other respondents are present in our-case. If the
appeal is allowed that decision in the appeal will go in conflict with the decision of the trial Court between the appellant and respondents 6 and 8,
and hence there will be two conflicting decrees. Since the respondents 6 and 8 have a right in the property in question necessarily they are
necessary parties to the appeal. And if the appeal is allowed and a decree is passed as against the surviving respondents it cannot be successfully
executed since respondents 6 and 8 would object to the execution. Therefore it would appear that the appeal as against respondents other than
respondents 6 and 8 cannot be heard.
Mr. M. S. Umapathy, learned Counsel appearing for the appellant would however cite another decision of the Supreme Court in Daya Ram
and Others Vs. Shyam Sundari, . But I do not think that this decision would help him. Therein it was held that if the appellant after diligent and
bona fide enquiry ascertained who were the legal representatives of the deceased respondent and brought them on record within the time limit
prescribed by law, there would be no abatement of the appeal even though some other legal representatives remained unknown to him and were
not impleaded, if those legal representatives who were impleaded sufficiently represent the estate and a decision obtained against them would bind
the entire estate. The facts of the case in the above Supreme Court decision are not similar to the facts in our case. It may be noted that the
Supreme Court has further stated that,
If, however, it is brought to the notice of the appellant during the pendency of the appeal that some of the legal representatives had not been
impleaded, it would be the duty of the appellant who was thus made aware of his default, to bring those others on records.
This shows that the appellant must be diligent in impleading all the necessary parties in the appeal. The facts discussed above would show that it
would be only due to the fault of the appellant the appeal against the defendants 6 and 8 was dismissed.
Considering all these, the appeal which has been dismissed as against respondent 6 and 8 cannot be maintained as against the other
respondents. Therefore, the appeal has to be necessarily dismissed. In this view of the matter there is no necessity to consider the merits of the
appeal. The result is, the appeal is dismissed. In the circumstances, there will be no order as to costs.