Kundan Lal vs Sant Ram

Teja Singh, C.J.—This second appeal arises out of a suit for rendition of accounts. Both sides are agreed that partnership came to exist between Sant Ram and Hansaraj on one side and Kundan Lal on the other. The object of the partnership was to take contract work from certain company; but since Sant Ram and Hans Raj were not satisfied with the progress of the work they ultimately decided to dissolve the partnership. The suit was brought by Sunt Ram and Hans Raj and they obtained a preliminary decree. In the course of the proceedings relating to the final decree, the Court appointed Iqbal Hussain Advocate as the Commissioner to go into the accounts and we are told that Kundan Lal who was the accounting party handed his accounts to the Commissioner, but because of the Communal disturbances, the Commissioner left Patiala and went away to Pakistan. Nothing was known about the account books produced by Kundan Lal. The parties were, however, given an opportunity of producing evidence and after the evidence had been produced the trial Court granted the Plaintiffs a decree for Rs. 2384/-. The amount consisted of the following items: Rs. 1850/- that the Plaintiffs had paid to Kundan Lal as their share of the assets and Rs. 534/- the Plaintiffs'' share of profits. Against this decree Kundan Lal preferred an appeal to the District Judge, but failed. The second appeal was instituted in this Court on 27-4-1950.

Hans Raj, respondent died on 14-7-1951. On 9-11-1951 Kundan Lal applied that the two sons of the deceased whom he described as Amar Nath and Gattu be brought on the record as his legal representatives. On 25-4-1952 Widyawati, widow of Hans Raj represented to the Court that Hans Raj had left three sons whose names were Darshan Kumar, Kanwal Indar and Yash Pal and prayed that since neither they nor. she who was also an heir of her husband, had been brought on the record within the time allowed by law, the appeal should be dismissed as having abated. Kundan Lal admitted that Hans Raj had left a widow and three sons and their names were Darshan Kumar, Kanwal Indar and Yash Pal and applied on 3-5-1952 that all four of them be made respondents to the appeal.

The first question to be decided in the appeal is whether it has abated. It was argued by Mr. Lachhman Dass, counsel for the Appellant, that his client''s failure to apply within time allowed'' by law was due to the reason that he did not know of Hans Raj''s death till 4-11-1951 and consequently the delay ought to be condoned. As regards the fact that two of the sons were wrongly named as Amar Nath and Gattu and no mention was made of the third son, counsel''s plea was that the information given to the Appellant was that Hans Raj had only two sons and their names were Amar Nath and Gattu. He also argued that if some of the legal representatives of a deceased party are not brought on record within time, the appeal does not abate. As regards the last contention Mr. Lachhman Dass is supported by a number of decisions of various High Courts, but a different view has been taken by the Chief Court of Oudh and by two Division Benches of the Lahore High Court. Since the case can be disposed of on other points, I do not consider it necessary to decide in this case which of the two views is correct.

The respondents have placed on record an affidavit of Gora Lal, mukhtiar-i-khas of Mst. Widyawati and it is mentioned in the affidavit that not only Kundan Lal was related to Hans Raj deceased but he visited Hans Raj''s house a few days after he had died in order to condole with the family. Kundan Lal has put in affidavit denying Gora Lal''s allegations. According to him there was no relationship whatsoever between him and the family of the deceased and it was just by chance that he happened to go to the village to which belonged Hans Raj''s mother''s parents and that he came to know of his death and was told that he had left two sons named Amar Nath and Gattu. According to what Mr. Lachhman Dass stated at the bar we are of the opinion that there was no direct relationship between the Appellant and Hans Raj deceased but at the same time it is clear that the families were connected with each other by marriage and so it is wrong to say that they were not related at all. In the view we take, it is impossible to think that Kundan Lal could not have come to know of Hans Raj''s death for four months. In any case, it was his duty to be vigilant and in my opinion he has not been able to prove that Hans Raj''s death did not come to his knowledge till 4-11-1951. In addition I wish to point out that Amar Nath and Gattu whom Kundan Lal brought on the record in place of Hans Raj deceased on the ground that they were his sons, were not his sons and I am not satisfied that he was a victim of any kind of mistake or wrong information. His affidavit is entirely silent on this point and all that is mentioned in it was that the deceased had left two sons namely Amar Nath and Gattu, but there is not a word in it to show who gave him this information and whether he made the slightest effort to verify that the information was correct and Hans Raj had no other sons excepting Amar Nath and Gattu.

Mr. Lachhman Dass argued that Gattu was probably the pet name of one of the sons. There is however no evidence on this point and the affidavit also makes no mention of it, but even if this be correct there is no explanation whatsoever how either of the remaining two sons came to be described as Amar Nath. In my opinion the Appellant was extremely negligent and made the application without making any kind of enquiries. This means that no legal representative of Hans Raj was brought on the record within time allowed by law.

Before turning to the other point, I may mention that one of the arguments pressed before us by Mr. Lachhman Dass was that since Hans Raj died after the passing of the preliminary decree, the case did not come within the ambit of Order 22 Rule 4 and the real Rule applicable was Rule 10 for which no period of limitation is provided. In support of his contention, Mr. Lachhman Dass referred us to a number of decisions in which it was held that if a Defendant dies after a preliminary decree is passed and application to bring his legal representatives on the record is not made within 90 days, the suit does not abate, because the right to sue merges in the decree and no question of its survival or non-survival can arise. We have no dispute with the proposition of law laid down in these decisions but it cannot help the Appellant in the present case because here we are dealing with an appeal and in appeal right to sue should be taken to mean "right to appeal". The effect of taking another view would be that the provisions of Order 22 would not at all apply to appeals from decrees, because the right to sue merges in the decree and consequently in every ease in which legal representatives of a deceased respondent are not brought on the record, it can be said that no question of survival of the suit arises.

I am confirmed in this view by the observations made by Mitter J. in- Bhusan Chandra Mondal Vs. Chhabimoni Dasi and Others The learned Judge while holding that where in a suit for partition and accounts one of the defendants dies and his heirs are not brought within limitation the suit will not abate, with regard to each defendant by reason of Order 22, Rule 4 as the provisions of that rule cannot apply to such a case, remarked as follows:

According to the language of Order 22 Rule 10 those cases where death occurs after the preliminary'' decree must come within that rule, viz. Rule 10 and there is no period of limitation fixed with regard to matters coming under the said Rule. This view of ours would not create any inconsistency where the death of a party occurs during the pendency of an appeal for, in that case, the words "right to appeal" will have to be substituted by reason of the provisions of Rule 11 in the place of the words "right to sue", occuring in Rules 3 and 4.

The next question to be decided is whether the appeal abated only as against Hans Raj''s legal representatives, or altogether. The test, as stated at page 931 of the well-known commentary on C.P.C., by Mulla, Edition 1951, is whether in the event of the appeal being allowed against the remaining respondents there would or would not be two contradictory decrees in the same litigation with respect to the same subject matter, the reason being that a Court should not be called upon to make two inconsistent decrees about the same property and in order to avoid conflicting decrees the Court has no alternative but to dismiss the appeal as a whole. As I have already mentioned the decree against the Appellant was in favour of both Hans Raj and Sant Ram and their shares in it were not specified. Now if the'' appeal is held to abate only as against Hans Raj, the result will be that the decree will stand to that extent and if the decree in favour of Sant Ram is set aside or modified undoubtedly this will result into two conflicting decrees. Accordingly the only course left open to us is to hold that the entire appeal abates. The objection of the respondents is therefore allowed and the appeal is dismissed. In the peculiar circumstances of the case there will be no order as to costs.

Gurnam Singh, J.

I agree.