Hallayud and Another vs Jai Dev and Others

Kamlesh Sharma, J.—This appeal is directed against the order dated 15.01.1983 whereby the Additional District Judge, Mandi, has accepted the appeal filed by the Respondents-plaintiffs No. 1 and 2, setting aside the judgment and decree dated 08.01.1982 of Additional Sub Judge, Mandi in Civil Suit No. 203/67/95/79 and remanded the case to the trial Court for deciding it afresh in view of the observations made in his order. The Additional Sub Judge, Mandi, had dismissed the suit as not maintainable in the absence of legal representatives of Brestu deceased who was impleaded as defendant No. 3 in the suit and had died during the pendency thereof. The litigation between the parties is pending since long. It pertains, to land which was sold by Brestu deceased in favour of Respondents-defendants No. 1 and 2. Two of his sons the Respondents plaintiffs No. 1 and 2 felt aggrieved and instituted civil suit for declaration that the sale made by their father Brestu was void and not binding on them as the land in dispute was joint Hindu family property and that the sale was not for legal necessity. Consequential relief of possession was also sought for. Another son of Brestu deceased was also impleaded, who is proforma Respondent No. 3 in the present appeal. The suit was opposed by the Appellants-defendants, who filed joint written statement, as well as by Brestu deceased who filed separate written statement. The specific stand taken by Brestu deceased was that the land in dispute was his self acquired property and was not joint Hindu Family property, as such, the sale made in favour of the Appellants-defendants was legal and valid. During the pendency of the appeal, Brestu died on 03.12.1970, corresponding to 18th Macrh, 2029 BK. An application for bringing on record his legal representatives was filed by the Respondents-plaintiffs on 03.06.1971 which was opposed on the ground that it was filed beyond the period of limitation, as such, the suit stood abated. Thereafter, the Respondents-plaintiffs withdrew their application on 21.03.1973 and on the same day filed Anr. application under Order 1 Rule 10 CPC praying for the deletion of the name of Brestu from the array of defendants on the ground that he was not a necessary party. The Appellants-defendants filed reply to the application taking the stand that the effect of striking off the name of Brestu'' deceased was that the suit was not maintainable and prayed for its dismissal. Ultimately, this weighed with the trial Court and it dismissed the application under Order 1 Rule 10 CPC and also the suit vide order dated 20.06.1975 holding it as abated in the absence of the legal representative of Brestu deceased.

Feeling aggrieved, the Respondents-plaintiffs filed appeal No. 26 of 1975 but failed. They further challenged the judgment dated 29.06.1978 of the District Judge by filing Civil Revision No. 9 of 1979 in this Court which was allowed vide order dated 10.08.1981 whereby the application of the Respondents-plaintiffs under Order 1 Rule 10 CPC for deletion of the name of Brestu deceased was accepted. However, the question whether the suit had abated or not, as a result of the death of Brestu, was left open and the trial Court was directed to decide the same after affording an opportunity to the parties. The trial Court vide its order dated 08.01.1982 again dismissed the suit as abated, holding that," Non impleadment of widow and daughters of deceased Brestu in the suit as provided under Order 22 Rule 4 CPC makes the present suit incompetent and thus the suit abates in its entirety." The District Judge, while setting aside the order of the trial Court, has taken a different view and has held that," The suit does not abate as a whole and can be continued against the Respondents/vendees and an effective decree can still be granted." The District Judge vide the impugned judgment has remanded the case for fresh trial. Hence the present appeal.

We have heard the learned Counsel for the parties and gone through the record. Sh. B.K. Malhotra, learned Counsel appearing for the Appellants-defendants, has urged that Brestu deceased was a necessary party and in the absence of his legal representatives, the whole of the suit had abated. He has also argued that after the death of Brestu all his legal representatives, including his widow and daughters, were required to be brought on record and it cannot be said that his estate or his interest in the litigation was sufficiently represented by Respondents -plaintiffs No. 1 and 2 and the proforma-Respondent No. 3. To substantiate his submissions, Sh. Malhotra has referred to case law, which we shal1 discuss in the latter part of our judgment.

On the other hand , Sh. Yogender Paul, learned Counsel appearing for Respondents-plaintiffs No. 1 and 2, has supported the impugned order and has argued that Brestu deceased was not a necessary party as by selling the land in dispute he had lost all his rights and interest therein. According to him, at the most, Brestu deceased was a proper party and by not bringing on record all his legal representatives, the suit had not abated as a whole and could proceed against the Appellants-defendants. His case, in the alternative is that assuming but not admitting that Brestu deceased was a necessary party, his estate and interest in the litigation was duly represented by the proforma-Respondent defendant, who is his third son, and non-impleadment of widow and daughters was of no effect.

We have given our best consideration to the respective submissions of the learned Counsel for the parties. The first point for our consideration is whether Brestu deceased was a necessary party, in other words, whether the suit as framed and presented by the Respondents-plaintiffs was maintainable and could be decreed in the absence of Brestu. It is well settled that the question whether a party is a necessary party to the suit depends upon the facts and circumstances of each case. The conditions must, however, be satisfied before a party is considered to be a necessary party, (i) there must be a right to some relief against the party not joined; this means that no decree can be passed- without affecting the rights of absentee party and (ii) the presence of the absentee party should be necessary in order to enable the Court to effectively adjudicate upon and settle all the questions involved in the suit. These principles include the idea that no decree should be passed by a Court which would be rendered infructuous or would become ultimately unexecutable.

Applying these principles to the facts of the present case, by sale of the property in dispute, which according to the stand of Brestu deceased was his individual property and not joint Hindu family property, his rights and interest in the property vested in the Appellants-defendants, the vendors (sic vendees'') therefore, for granting the decree of declaration that the sale made in their favour by Brestu deceased was void and also the consequential relief of possession he was not required to be impleaded as a party defendant. Admittedly, the property in dispute has been in possession of the Appellants-defendants since its purchase by them. To get the decree for declaration and possession as sought for by the Respondents-plaintiffs, it is for them to prove that the property in dispute was joint Hindu family property and there was no legal necessity to sell it as was done by Brestu deceased. After- the sale, all rights and interest in the property in dispute stood transferred to the Appellants-defendants and it was for them to defend it and the presence of Brestu was not necessary. At the most, he was J a proper party. Moreover, in the present case, the third son of Brestu deceased, the proforma-Respondent-defendant, being already on record, could represent the interest of Brestu deceased in the litigation if he so desired and non-impleadment of the remaining legal representatives, that is, his widow and daughters, was of no effect. The interest of Brestu deceased in the litigation is clear from his stand taken by him in his written statement that the property in dispute was his individual property and not joint Hindu Family property. As such, he could sell it to the Appellants-defendants. It appears that the proforma-Respondent-defendant had not filed written statement supporting the Respondents-plaintiffs or his father Brestu deceased. In the application under Order 22 Rule 4 Code of Civil Procedure, notices were duly served upon the proposed legal representatives including the widow and the daughters of Brestu deceased but they failed to put in appearance and were proceeded exparte which shows that they did not want to pursue the interest of Brestu deceased in the litigation which would have deprived them of the decree, if passed in favour of the Respondents-plaintiffs, having a right to inherit the estate of Brestu deceased alongwith them and the proforma-Respondent-defendant.

We find that the law laid down by the Supreme Court in Radha Rani Bhargava Vs. Hanuman Prasad Bhargava, applies to the facts and circumstances of the present case. In the said case, Smt. Bhagwati Bhargava, a widow, had alienated her Husband''s estate in- favour of some alienees. Being aggrieved, one of the daughters, namely, Mst. Indrawai, filed a suit in a representative capacity on behalf of the reversioners for declaration challenging the alienation and claiming that on the death of Smt. Bhagwati Bhargava, she, alongwith other reversioners, would inherit the property in dispute. The alienees, the alienor, Smt. Bhagwavati Bhargava, and her other daughter Radha Rani were impleaded as defendants and the suit was decreed. During the pendency of the appeal in the High Court, plaintiff Indravati died and her name was substituted by Smt. Radha Rani. On coming into force of the Hindu Succession Act on 17.02.1956 and Smt. Bhagwati Bhargava becoming full owner, the alienees raised a preliminary contention that the suit was not maintainable as reversionary rights had ended. This contention was accepted by the High Court and the appeal was allowed dismissing the suit. In further appeal before the Supreme Court, an application was moved for bringing on record the legal representatives of Smt. Bhagwati Bhargava as she had died in the meantime. The application was opposed. In these facts and circumstances, the Hon''ble Judges of the Supreme Court held:

...it is sufficient to say that in the case of the death of the widow during the pendency of the declaratory suit, the heirs of the widow are not necessary parties to the suit. Though the widow was joined as a party to the suit, no relief was claimed against her personally. On the death of the widow, the entire estate of the last full owner is represented by the plaintiff suing in a representative capacity on behalf of all the reversioners, and the plaintiff can get effective relief against the alienee in the absence of the henrs of the widow. In view of the fact that on the death of the widow, the reversioners become entitled to possession of the property, in a proper case leave may be obtained to amend the plaint in the declaratory suit by adding all the reversioners as plaintiffs and by including in the plaint a prayer for possession of the property. If the plaint were amended and the suit were converted into one for possession of the property, clearly the heirs of the widow would not be necessary parties to the suit. The fact that the plaint is not amended makes no difference. The plaintiff is entitled to continue the declaratory suit without joining the heirs of the widow as parties to the suit.

(Please also see: Mohammad Arif Vs. Allah Rabbul Alamin and Others,

So far the present case is concerned, once it is held that Brestu deceased was a proper party, we have no hesitation to hold that the suit had not abated in the absence of his legal representatives. The ratio of the judgment in each of the cases in Aswini Kumar Roy and Another Vs. Kshitish Chandra Sen Gupta and Others, ; Chikkathamaiah and Ors v. Chikkahutchian and Ors. AIR 1977 Kar 99 ; Ramji Jankiji and Another Vs. Mauni Baba Kale Kambalwala Jai Siyaram Dasji and Others, ; Municipal Council Ajmer v. Narinder Singh AIR 1982 Raj 289 is in the context of the facts and circumstances of each case and is not applicable to the facts and circumstance of the present case. So far the judgment in Shiv Ram and Others Vs. Bhagat Ram and Others, is concerned, relying upon N.K. Mohammad Sulaiman Vs. N.C. Mohammad Ismail and Others, a Division Bench of this Court has held that if the interest of legal heirs is joint in the estate of the deceased governed by doctrine of survivorship, presence of one of them would be sufficient to represent the estate of the deceased.

In view of the above discussion, we do not find any merit in this appeal and it is dismissed. The case is remanded to the trial Court for trial afresh. Since the suit has been pending for the last 25 years, the trial Court is directed to dispose it of on top priority basis, preferably within a period of six months from the date of receipt of the case file. The record be sent to the trial Court immediately.

The parties are directed to appear before the trial Court on 18th September, 1995.