Selo and Others vs Jagat Singh alias Raghu

P.D. Desai, C.J.

For the reasons to be recorded in the judgment which will be delivered later, the appeals are dismissed. No costs.

The Following Judgment of the Court was delivered on November 28, 1984, by:

T.R. Handa, J.—Letters Patent Appeals No. 12 and 13 of 1973 both arise out of the same civil suit and are interse the same parties. They were accordingly heard together and disposed of by a common short order recorded by us on 13-11-1984. We now proceed to give our reasons in support of our said order.

The following brief narration of facts which are not in dispute at this stage would help in appreciating the controversies raised in these appeals.

Sarvshri Prabhu and Shiv Dyal, the two brothers, sons of Mussadi were the last male owners of the land forming subject matter of this litigation and hereinafter referred to as the ''suit land''. The suit land which comprises of several Khasra numbers and is located in two Tikkas, namely, Lahri and Bholed of Mauza Darini in Tehsil Kangra had been inherited by the two brothers from their father Mussadi. On the death of Prabhu who died issueless, his half share in the suit land was inherited by his widow Smt. Rabli. Subsequently on the death of the other brother Shiv Dyal, Smt. Rabli inherited his half share also. This she did in her capacity of widow of Prabhu, the brother of the deceased. Both Prabhu and Shiv Dyal, it may be observed, had died before 1950 and under the law then in force, Smt. Rabli had inherited only a life estate in the suit land. On 24-10-1961 Smt. Rabli made a gift in respect of a portion of the suit land in favour of Jagat Singh Respondent.

The suit giving rise to these appeals was thereafter filed by one Mohan, the predecessor-in-interest of the present Appellants on 14-5-1963. Mohan was a collateral of Prabhu and Shiv Dyal within three degrees and was also a co-sharer in the Khata of which the suit land formed a part. His suit was for a declaration that he was in possession of the suit land as an exclusive owner and the entries to the contrary appearing in the revenue record in favour of Smt. Rabli and Jagat Singh Defendants were incorrect. As a consequential relief he prayed for issue of a perpetual injunction restraining the Defendants Smt. Rabli and Jagat Singh from interfering with his possession over the suit land. In the alternative he prayed for a decree for possession of the suit land.

The suit was founded on the allegations that some 11 years before the institution of the suit, that is, in or about 1952 and before the coming into force of the Hindu Succession Act, 1956, Smt. Rabli had remarried with one Labhdi of village Dibba or in any case she had left the house of her husband Prabhu and had settled in the house of Labhdi where she started leading an unchaste life. The parties, as per further allegations made in the plaint, were governed by Kangra custom in terms of which a widow on remarriage or turning unchaste would forfeit all her rights, title and interest in the estate of her husband. Smt. Rabli on account of her remarriage or unchastity had thus forfeited her rights in the suit land which she had inherited from and through her husband Prabhu. The Plaintiff Mohan who was a co-sharer in the Khata had, as per further allegations in the plaint, been coming in exclusive possession of the entire Khata including the suit land eversince Smt. Rabli settled in the house of Labhdi and forfeited her rights in the suit land. The revenue entries, however, continued to exist in favour of Smt. Rabli who taking undue advantage thereof made a gift of a portion of the suit land in favour of Jagat Singh Defendant. This gift, according to the Plaintiff, was void since the donor Smt. Rabli had already lost her rights in the suit land when the gift was made.

The Defendants, namely, Smt. Rabli and Jagat Singh contested the suit. They refuted all the material allegations made in the plaint in support of the Plaintiff''s claim and also raised some preliminary objections. The pleadings of the parties gave rise to the following issues:

Whether the suit is within limitation? .. O.P.

Whether the suit is not maintainable? .. O.P.

Has the Plaintiff locus standi to sue? .. O.P.

Whether the parties are governed by custom?

If so, what is that custom?

Whether the property in dispute is ancestral? .. O.P.

Whether Smt. Rabli remarried Labhdi and abandoned her husband''s house and became unchaste as alleged? If so, what is its effect?

Whether the gift by Defendant No. 1 in favour of Defendant No. 2 is valid? .. O.D.

Whether the Plaintiff is estopped from suing? .. O.D.

Relief.

The trial Court answered issues Nos. 1 to 4 in the affirmative and issues Nos. 5 and 8 in the negative. On issue No. 6, the trial Court found that Smt. Rabli had after the death of her husband Prabhu settled in the house of Labhdi in village Dibba where she had been living in adultery. The trial Court further found that under the custom governing the parties, Smt. Rabli on account of her unchastity had. forfeited her rights in respect of one half share of the suit land which she had inherited from her husband Prabhu. In respect of the other half share of the suit land which Smt. Rabli had inherited from Shiv Dyal, the trial Court, however, held that the same continued to vest in her and she did not lose her rights therein on account of her remarriage or unchastity. On issue No. 7 the trial Court held that the gift made by Smt. Rabli in favour of Jagat Singh to the extent it involved the land inherited by Smt. Rabli from Prabhu was void and the rest was valid.

In the result the trial Court granted the Plaintiff a declaration to the effect that he was owner in possession to the extent of one half share in the suit land and that the gift made by Smt. Rabli in favour of Jagat Singh would not affect her rights in that half share.

Both the parties, namely, the Plaintiff and the Defendants felt aggrieved by the judgment, and decree of the trial Court. Both of them accordingly filed separate appeals before the District Judge. The appeal filed by Mohan Plaintiff against the Defendants was registered as Civil Appeal No. 128 of 1966 and the other filed by Jagat Singh and Smt. Rabli against Mohan Plaintiff was registered as Civil Appeal No. 127 of 1966 in the Court of the District Judge. Both these appeals were disposed of by the learned District Judge by a common judgment. The learned District Judge agreed with the trial court that Smt. Rabli forfeited her rights only in the half share of the suit land which she had inherited from her husband Prabhu and not in the other half to which she had succeeded collaterally on the death of Shiv Dyal. On such findings the learned District Judge dismissed both the appeals. In the course of the judgment, however, the learned District Judge observed that there was no dispute between the parties with respect to the ancestral nature of the suit land. The trial Court, it may be observed, had earlier held that the suit land had not been proved to be ancestral.

Two separate regular second appeals were then instituted in this Court against the judgment and decree of the District Judge. One of such appeals was by Mohan Plaintiff and the other was by Jagat Singh Defendant. The appeal by Mohan Plaintiff was preferred against that part of the judgment which operated to dismiss his suit with respect to one half share of the suit land inherited by Smt. Rabli from Shiv Dyal. The appeal by Jagat Singh on the other hand related to that part of the judgment which operated to decree the suit of Mohan Plaintiff to the extent of one half share inherited by Smt. Rabli from Prabhu. The appeal of Mohan was registered as R.S.A. No. 4 of 1967 and that of Jagat Singh as R.S.A. No. 30 of 1968.

The learned single Judge before whom these appeals initially came up for hearing found that the judgments of the trial court and the District Judge when read together reflected some confusion on the findings returned on issue No. 5. Whereas the trial court had found that the ancestral nature of the suit land had not been established, the District Judge had observed that there was no dispute between the parties with respect to its ancestral nature. The learned single Judge accordingly considered it desirable to make a reference to the District Judge and obtain his clear findings on issue No. 5 above. He, therefore, sent the case back to the District Judge for recording evidence on this issue and giving a finding thereon. The learned District Judge thereafter returned his finding on this issue which was to the effect that a part of the suit land was ancestral and the other part was non-ancestral qua the Plaintiff.

It may further be observed that when the enquiry was still pending before the District Judge on the issue referred to him by the learned single Judge, Mohan Plaintiff expired. In R.S.A. No. 4 of 1967 which had been filed by Mohan, his legal representatives on their application made under Order XXII CPC were brought on the record and their names were substituted in place of the deceased Appellant. In the other appeal No. 30 of 1968 brought by Jagat Singh Defendant, however, no steps were taken to bring on record the legal representatives of Mohan, the Respondent therein.

After the report of the District Judge was received, both these appeals were listed for hearing before the learned single Judge for 5-3-1973. Whereas in R.S.A No. 4 of 1967 which had been filed at the instance of Mohan Plaintiff, the Appellants (the legal representatives of Mohan deceased) put in appearance through their counsel Shri Inder Singh, Advocate, to conduct the appeal, they were not represented in the other R.S.A. No. 30 of 1968 filed at the instance of Jagat Singh. In fact the record shows that Shri Indar Singh, Advocate, who represented the legal representatives of Mohan deceased in R.S.A. No. 4 of 1967 was present but he did not appear for the legal representatives of Mohan deceased in that appeal. The same was, therefore, heard ex parte. Both the aforesaid appeals were disposed of by the learned single Judge by his separate judgment delivered on 12-3-1973. R.S.A. No. 4 of 1967 which had been filed at the instance of Mohan Plaintiff was dismissed by the learned single Judge as he was in perfect agreement with the courts below that under the custom governing the parties, Smt. Rabli on account of her unchastity did not lose or forfeit her rights in the land which she had inherited from Shiv Dyal.

In the other R.S.A. No. 30 of 1968 filed at the instance of Jagat Singh Defendant and which was directed against that part of the judgment which operated to decree the suit of Mohan Plaintiff to the extent of one half share that Smt. Rabli had inherited from her husband Prabhu, the learned single Judge held that the suit of the Plaintiff could succeed only if the property inherited by Smt. Rabli from her husband was found ancestral qua the Plaintiff. In view of the findings of the District Judge that some part of this property was non-ancestral, the learned single Judge held that no forfeiture took place in respect of that part of the land which was found non-ancestral. The learned single Judge accordingly allowed R.S.A. No. 30 of 1968 of Jagat Singh Defendant in part and modified the decree of the courts below by ordering that the suit of the Plaintiff would stand dismissed in respect of one half share of the land belonging to Prabhu in the khasra numbers which were found non-ancestral by the District Judge in his report dated 27-6-1972. In respect of half share ot Prabhu in the remaining khasra numbers which were found ancestral in the aforesaid report of the learned District Judge, the decree of the courts below was maintained.

As observed earlier the legal representatives of Mohan deceased were duly brought on record in R.S.A. No. 4 of 1967 which had been filed by Mohan Plaintiff but no formal steps were taken to bring on record the legal representatives of Mohan in the other R.S.A. No. 30 of 1968 in which Mohan was the Respondent. Shri Indar Singh, Advocate, who represented the Appellants in R.S.A. No. 4 of 1967 was not willing to represent the legal representatives of the deceased Mohan in the other regular second appeal where Mohan was the Respondent. In this connection the learned single Judge made the following observations which we consider it appropriate to reproduce:

The legal representatives of Mohan having been brought on the record, for which specific order was made by the learned Addl. District Judge Kangra when an application was moved before him on 16-1-71 and the names were actually impleaded in the plaint and the grounds of appeal, it is presumed that the legal representatives are aware of the proceedings and they should have been present in this Court on the date fixed for the hearing of the appeal. Shri Inder Singh, Advocate, was representing Mohan and in another connected appeal R.S.A. No. 4 of 1967 he has given a statement that he has instructions from such legal representatives that he is not to appear on their behalf and argue out the appeal on the date fixed for hearing. It is, therefore, clear that the legal representatives are already aware of the date of hearing. They have sent instructions to the learned Counsel of their predecessor-in-interest Mohan that he should not argue out the appeal. It would, therefore, be very proper to hold that the legal representatives are no longer interested in the result of the appeal. I, therefore, proceed to hear the appeal ex parte against them.

Letters Patent Appeal No. 12 of 1973 arises out of R.S.A. No. 30 of 1968 which had been filed by Jagat Singh Respondent against that part of the decree of the courts below which decreed the claim of the Plaintiff in respect of the estate inherited by Smt. Rabli from her husband Prabhu. Letters Patent Appeal No. 13 of 1973 arises from the other R.S.A. i.e. No. 4 of 1967 which had been filed by Mohan Plaintiff against that part of the judgment and decree of the courts below which operated to dismiss his suit with respect to the estate which Smt. Rabli had inherited from Shiv Dyal, the brother of her deceased husband.

The sole question raised for our consideration in L.P.A. No. 13 of 1973 was about the legal effect of the proved unchastity of Smt. Rabli on her rights in the estate which she inherited from Shiv Dyal, the brother of her deceased husband. The contention of the Appellants was that in the matters of succession and alienation the parties were governed by Kangra custom under which Smt. Rabli on account of her unchastity had lost all her rights, title and interest not only in the estate which she inherited from her husband but also in the estate which she inherited from her husband''s brother (Shiv Dyal) since she had inherited that estate only in her capacity of representative of her deceased husband.

It is not in dispute that in the matters of succession and alienation the parties at the relevant time were governed by custom then prevalent amongst the agriculturists of District Kangra. The real controversy between the parties, however, relates to the exact nature of that custom. It was certainly for the Plaintiff (the predecessor-in-interest of the Appellants) to establish the nature of the custom pleaded by him by clear and unambiguous evidence and to show that such custom had been acted upon and followed in practice for a considerably long period of time and with such consistency as would suggest that the same had by common consent been submitted to, recognized and accepted as a binding rule on the subject by the particular community to which the parties belong.

Admittedly no such evidence as could throw light on the nature of the custom pleaded by the Plaintiff is found on the record. All that the Plaintiff endeavoured to prove at the trial was that the parties were agriculturists and were governed by custom. The Plaintiff had of course further to prove that in terms of such custom a widow on her turning unchaste forfeited her rights not only in the estate of her husband but also in the estate which she inherits collaterally as representative of her deceased husband. Not a single instance of this type could be cited in the evidence of the Plaintiff. The Appellants, however, relied upon Question No. 47 and its Answer as stated in the ''Customary Law of the Kangra District excluding Kullu'' compiled by L. Middleton in support of their contention regarding the exact nature of the custom governing the parties. We may observe that the Respondent also relies upon the same Question and its Answer and that the courts below too in returning their verdict against the Appellants have placed reliance on the language of this very Question No. 47 and its Answer.

The answer to the question arising in L.P.A. No. 13 of 1973 would, therefore, depend upon the correct interpretation of the language employed in Question No. 47 and its Answer as found in Middleton''s work. This Question and its Answer may be extracted:

Question 47: What is the effect of unchastity upon the rights of a widow to the estate of her husband? What is the effect of her re-marriage?

Answer: Generally a widow on re-marriage loses her estate, also unchastity, if proved, e.g. by the widow leaving her husband''s house or by her having an illegitimate child, involves loss of her husband''s estate. The Thakars, Rathis, Jats and Ghirths of Nurpur Tehsil assert that re-marriage involves loss of her estate, but if she has an illegitimate child she cannot be ejected from her husband''s estate of which she retains possession provided she lives in his house.

A mere look at the language in which this Question has been couched would show that it was intended to deal with the effect of the rights of a widow in the estate of her husband. All answers to this Question unless they clearly and expressly point to the contrary are presumed to be restricted to the estate of the deceased husband of the widow which she inherits. The argument advanced on behalf of the Appellants was that since Smt. Rabli in the instant case had inherited the estate of Shiv Dyal in her capacity of representative of her deceased husband, it should be treated as the estate of her deceased husband for the purposes of Question No. 47. We are afraid we cannot subscribe to this view. A custom, it may be observed, cannot be enlarged by parity of reasoning nor can one custom be deduced from another. A custom which must be certain in its scope and application, has to be proved independently. It cannot be extended by analogy.

A similar question arose before a Division Bench of the Punjab High Court in the case of Mst. Sukho v. Balwant Singh and Anr. reported in 1961 Punjab Law Reporter 729, where while interpreting the language of the above mentioned Question No. 47 and its Answer the learned Judges observed "the Question and answer referred to above merely provide that an unchaste widow would lose her husband''s estate. They do not at all provide for the forfeiture of their future rights of succession to the property of her husband''s father. It is well-settled that the custom cannot be extended by logic or analogy and it is for the parties relying on any particular custom on any particular matter to specifically allege and prove the said custom...The custom does not provide anywhere that a widow by reason of her unchastity after the death of her husband will cease to be the widow of her husband. Obviously, therefore, the widow will continue to have her status as the widow of her husband and will as such be entitled to represent him in matters of future succession".

The learned Judges of the Division Bench in the aforesaid case thus held that an unchaste widow even though she forfeits her rights in her hushand''s estate was entitled to represent her husband in matters of future succession. In other words an unchaste widow was held entitled to succeed collaterally as the representative of her deceased husband. If a widow even after turning unchaste is entitled to succeed collaterally as representative of her deceased husband, there is no reason why she should not continue to own and possess her rights in the estate which she has already inherited from the collaterals of her deceased husband, even though as the representative of her husband.

We may further observe that the right of the widow to represent her deceased husband in matters of collateral succession is recognized under custom as would be obvious from the language of Question No. 54 and its Answer which are extracted below:

Question-54: If a man dies without male lineal descendants and leaving no widow, daughter or descendants through a daughter, who is entitled to succeed?

Answer: The order of succession is generally stated to be:

Donees by will;

Collaterals according to their relationship;

Persons from whom the deceased had received the land in gift;

Ala Maliks;

Descendants of the founders of the Tika.

The widows of brothers and others as well as mothers have been left out owing to the limited nature of their rights. They do succeed as shown elsewhere, but to a life estate only. Brothers and their descendants would naturally come first. Those that are dead will be represented by their widows, and after brothers, etc., would come the mother. Donees by will will succeed only if the reversionary heirs do not assert their right to challenge the alienation of ancestral property.

It is obvious from the language employed in Question . No. 54 and its Answer that in the matters of collateral succession there is no distinction drawn between a chaste and an unchaste widow. Both are equally entitled to represent their husbands in the matter of collateral succession. It being so, there is no logic why a widow should on account of her unchastity forfeit her rights in the estate which she inherits collaterally as representative of her deceased husband, when there is no bar on an unchaste widow to inherit such an estate.

From the language employed in Question No. 47 and its Answer as reproduced above and which is the only material relied upon in support of their contention by the Appellants, we, therefore, find it extremely difficult to uphold the contention that under the custom governing the parties and as spelt out by the aforesaid language, a widow on account of her unchastity would forfeit her rights in the estate which she inherits from the collaterals of her deceased husband even though she does so as representative of her husband. L.P.A. No. 13 of 1973 being thus without merit, deserved dismissal.

The other appeal, namely, L.P.A. No. 12 of 1973 concerns the forfeiture of her rights by Smt. Rabli in the estate which she inherited from her husband Prabhu. It arises out of R.S.A. No. 30 of 1968. This appeal involves two questions. The first is whether the custom under which a widow on her remarriage or unchastity forfeits her rights in the estate of her husband operates with respect to the entire estate she inherits from her husband or whether such forfeiture is restricted to such part of the estate as is found ancestral. The expression "ancestral" in this connection would of course imply ancestral qua the Plaintiff collateral in the sense that it was originally held by the common ancestor of the Plaintiff and the last male holder, that is, the husband of the widow and it devolved on the last male holder by process of succession only. The second question is about the legal effect of the omission to implead the legal heirs of Mohan Plaintiff in R.S.A. No. 30 of 1968 on the validity of the judgment and decree passed by the learned single Judge in that appeal.

On the first question we find ourselves in complete agreement with the view taken by the learned single Judge that the forfeiture by a widow of her rights in the estate of her husband resultant from her remarriage or unchastity is restricted to the ancestral property only. The Plaintiff in support of his contention on this subject relied solely upon the language of Question No. 47 and its Answer stated in the work of Middleton and which has already been extracted above. It is now a well recognized proposition that manuals of Customary Law like the one prepared by Middleton from which the above mentioned Question and Answer have been taken, relate to ancestral property only unless there is a clear indication in them to show that they do contemplate self acquired property as well. An authoritative pronouncement on this subject was made as early as in 1944 by a Full Bench of the Lahore High Court in the case of Mt. Hurmate and Anr. v. Hosharu and Anr. reported in AIR 1944 Lah 21. After a thorough research and on a consideration of a catena of judicial decisions rendered on the subject from the year 1916 onwards their Lordships of the Full Bench observed as under:

It is obvious, therefore, that there is a formidable array of authority in support of the proposition that manuals of Customary Law should be taken to relate to ancestral property only unless there is a clear indication in them to show that they do contemplate self-acquired property as well.

In the same case Din Mohammad, J., speaking for the court reinforced the view then prevalent by adding the following language:

In my view, the raison d''etre of those cases which lay down that the manuals of Customary Law were ordinarily concerned with ancestral property only is quite intelligible. Collaterals are, as stated by Addison J. in Lah. 458, really speaking interested in that property only which descends from their common ancestor and this is the only basis of the agnatic theory. What a male-holder acquires himself is really no concern of theirs. It is reasonable, therefore, to assume that when manuals of Customary Law were originally prepared and subsequently revised, the persons questioned, unless specifically told to the contrary, could normally reply in the light of their own interest alone and that, as stated above, was confined to the ancestral property only.

Later in the case of Ujagar Singh Vs. Jeo, , their Lordships of the Supreme Court set their seal on the aforesaid principle enunciated by the Full Bench of the Lahore High Court when after quoting the relevant paragraph from the judgment of the Full Bench, they remarked:

The Full Bench was really authoritatively laying down a rule which had been the prevailing opinion in the courts in the Punjab. In the Riwaji-i-am of 1913-14 we find nothing in the context to show that the answer there recorded was intended to apply to self-acquired property.

In view of the decision of the Supreme Court in Ujagar Singh''s case which still holds the field, the first question may be answered against the Appellants.

In so far as the second question is concerned, in view of the admitted fact that the legal representatives of Mohan Plaintiff who was the sole contesting Respondent in R.S.A. No. 30 of 1968 were not brought on record in that appeal and the appeal was decided more than two years after the death of Mohan, it was contended on behalf of the Appellants (L.Rs. of Mohan) that the decree passed by the learned single Judge in that appeal was a nullity.

The question whether the decree passed against a dead person is always and for all purposes a nullity came up for consideration before the Supreme Court in the case of N. Jayaram Reddy and Another Vs. Revenue Divisional Officer and Land Acquisition Officer, Kurnool, The question raised before the Supreme Court was in the context of an appellate decree on the following facts. Two cross appeals were preferred in the High Court against the award of a Subordinate Judge made u/s 18 of the Land Acquisition Act. One of such appeals was filed by the State seeking reduction in the amount of compensation awarded by the Subordinate Judge and the other was by the claimants who were three in number and they sought enhancement of the amount of compensation. Needless to say that all the three claimants were party Respondents in the State appeal while the State was the sole Respondent in the appeal filed by the claimants. Shri Y.P. Reddi, one of the three claimants died during the pendency of those appeals in April 1964. On an application made to the High Court to that effect, his legal representatives were brought on the record in the appeal filed by the claimants. In the State appeal, however, the legal representatives of Reddi who was one of the Respondents, were not impleaded nor any steps were taken by the State to bring them on the record. It was about five years after the death of Reddi that the High Court by its common judgment disposed of both the appeals. The appeal of the claimants was dismissed while the State appeal was partly allowed and the compensation payable to the claimants was reduced. Thereupon the original claimants as well as the legal representatives of Reddi deceased preferred an appeal to the Supreme Court. On the facts quoted above it was contended before the Supreme Court on behalf of the Appellants that as Shri Y.P. Reddi, one of the Respondents in the State appeal, had died in April 1964 and his legal representatives had not been brought on the record within the prescribed period, the appeal abated thereafter and stood dismissed automatically and could not be resurrected and heard by the High Court as a cross appeal to the claimants'' appeal. P.N. Shinghal, J., while discussing the scope of the relevant provisions of order XXII CPC opined:

The basic fact remains that a decree against a dead person is treated as a nullity because it cannot be allowed to operate against his legal representative when he was never brought on the record to defend the case. Any other view would not be possible or permissible for it would fasten on him a liability for which he did not have any hearing. So while the law treats such a decree as a nullity qua the legal representative of the deceased Defendant or Respondent, there is nothing to prevent him from deciding that he will not treat the decree as a nullity, but will abide by it as it stands, or as it may be modified thereafter on appeal. If a legal representative adopts that alternative or course of action, it cannot possibly be said that his option to be governed by the decree is against the law or any concept of public policy or purpose, or the public morality. It is thus a matter entirely at the discretion of the legal representative of a deceased Respondent against whom a decree has been passed after his death to decide whether he will raise the question that the decree has become a nullity, at the appropriate time, namely, during the course of the hearing of any appeal that may be filed by the other party, or to abandon that obvious technical objection and fight the appeal on the merits. He may do so either because of his faith in the strength of his case on the merits or because of incorrect legal advice, or for the reason that he may not like to rely on a mere technical plea, or because in the case of cross-appeals, he may have the impression that bringing the legal representative of the deceased Respondent on record in an appeal by a co-Appellant will enure for the benefit of or be sufficient for purposes of the cross-appeal. An abandonment of a technical plea of abatement and the consequential dismissal of the appeal, is, therefore a matter at the discretion of the legal representative of the deceased Respondent and there is no justification for the argument to the contrary. It is equally futile to argue that an appellate court is denuded of its jurisdiction to hear an appeal in which one of the Respondents has died and the right to sue does not survive against the surviving Defendant or Defendants alone merely because no application has been made to bring his legal representative on the record when no objection to that effect is raised by anyone.

In the context of the particular facts of the case the learned Judge then proceeded to observe:

The legal representatives of Y. Prabhakar Reddy and their counsel were thus aware of the fact that the government appeal had abated against Respondent Y. Prabhakar Reddy, and it will not be unfair to assume that they, or, at any rate, their counsel knew that it was open for them to contend that the appeal was liable to dismissal for that reason. Two courses of action therefore open to them: (i) to move the High Court for the dismissal of the government appeal, or (ii) to allow that appeal to be heard and decided on the merits and to abide by any decree which the High Court might pass in the two appeals. The legal representatives and their counsel did not choose to adopt the first course of action; and it will be fair and reasonable to hold that they wilfully choose the second course of action. That was why their counsel C. Padmanabha Reddy, who was counsel for all the Respondents in the Government appeal, and for all the Appellants in the claimants'' appeal, argued both the appeals on the merits. The High Court heard and decided the cross-appeals by its impugned judgment dated February 4, 1969, and it will be a proper conclusion for me to reach that the legal representatives of Y. Prabhakar Reddy wilfully abandoned any plea that might have been available to them on the basis of the abatement of the government appeal against the deceased Respondent.

The following further observations of his Lordship found in para 10 of the report are equally pertinent:

In all these facts and circumstances, I have no doubt that any plea that may have been available to the legal representatives of the deceased Y. Prabhakar Reddy in the government appeal because of its abatement, was wilfully abandoned by them. Any other view of the matter will be unfair to the present Respondents because if any such objection had been taken in the High Court, they would have made an application for the setting aside of the abatement and condoning the delay, for whatever it was worth. It has to be appreciated that a point of defence which has been wilfully or deliberately abandoned by a party in a civil case, at a crucial stage when it was most relevant or material, cannot be allowed to be taken up later, at the sweet will of the party which had abandoned the point, or as a last resort, or as an afterthought. In fact in a case where a point has been wilfully abandoned by a party, even if, in a given case, such a conclusion is arrived at on the basis of his conduct, it will not be permissible to allow that party to revoke the abandonment if that will be disadvantageous to the other party.

The final conclusion was recorded by his Lordship in the following language:

It would thus follow that as the plea of abatement of the government appeal against Respondent Y. Prabhakar Reddy and its dismissal as a whole for that reason, was wilfully abandoned by the present Respondents in the High Court, it will not be fair and reasonable to allow them to rake it up in the facts and circumstances of this case merely because the decision of the High Court has gone against them.

D.A. Desai, J., in his separate though concurrent judgment examined the principles underlying the relevant provisions of Order XXII CPC in the following words:

This question may be examined first on principle. The basic principle underlying order 22, Rules 3 and 4 which on account of the provision contained in order 22, Rule 11 apply to appeals, is indisputably a facet of natural justice or a limb of audi alteram partem rule. It is a fundamental rule of natural justice that a man has a right to be heard-audi alteram partem- where a decision affecting him or his interest is to be recorded. It hurts one''s sense of justice, fairness and reasons that a decision one way or the other is recorded affecting a party without giving that party an opportunity of being heard. This rule embraces the whole notion of fair procedure and the rule requiring a hearing is of almost universal validity. It has made a serious inroad in administrative decisions. It should enjoy a top place in a judicial proceeding.

The first limb of this rule audi alteram partem is that a person must be given an opportunity of being heard before a decision one way or the other affecting him is recorded. As a corollary to this rule it is provided in the CPC that where a party to the proceeding dies pending the proceeding and the cause of action survives, the legal representatives of the deceased party should be brought on record which only means that such legal representatives must be afforded an opportunity of being heard before any liability is fastened upon them. It may be that the legal representatives in a given situation may be personally liable or the estate of the deceased in their hands would be liable and in either case a decision one way or the other, adverse or favourable to them, cannot be recorded unless they are given an opportunity of being heard, Order 22, Rules 3 and 4 codify these procedural safeguards translating into statutory requirement one of the principles of natural justice.

The following further observations of his Lordship would also throw considerable light on the question raised before us:

Now, if the discernible principle underlying Rules 3 and 4 of Order 22 is that the legal representatives of the deceased likely to be affected one way or the other by the decision in appeal must be before the Court and must be heard before a decision affecting their interests is recorded, it would stand fully vindicated when in cross-appeals of a party occupying the position of an Appellant in one appeal and Respondent in the other appeal dies and his legal representatives are brought on record in the appeal in which he is the Appellant and not in the other appeal wherein he is a Respondent because the subject-matter of both the appeals being the decree under attack, they have an opportunity to support the decree in their favour and question the correctness of the decree adverse to them. Even if they were brought on record as legal representatives of the deceased in his capacity as Respondent in the cross-appeal, they could not have further advanced their case nor could they have done anything more than what they would do in their capacity as legal representatives of the deceased Appellant unless they were precluded from contending that they being not on record cannot support or controvert the decree. They have thus the fullest opportunity of putting forth their grievance against and in support of the decree. Their position was not the least likely to be affected one way or the other even if they were not formally impleaded as legal representatives of the deceased in his capacity as Respondent. To say that cross-appeals are independent of each other is to overlook the obvious position which parties adopt in cross-appeals. Interdependence of cross-appeals is the same as interdependence of appeal and cross-objections because as in the case of appeal and cross-objections a decision with regard to appeal would directly impinge upon the decision in cross-objections and vice versa. Indubitably the decision in one of the cross-appeals would directly impinge upon the decision in the other because both ultimately arise from the same decree. This is really the interdependence of cross-appeals and it is impossible to distinguish cross-appeals from appeal and cross-objections.

The legal propositions which are pertinent for the purposes of the present case and which appear to emerge from the aforesaid decision of the Supreme Court may be stated thus:

The court seized of a matter is, in the absence of any objection raised to that effect at the appropriate stage, not divested of its jurisdiction to hear and dispose of such matter simply because one of the Defendants/Respondents dies and the right to sue does not survive against the surviving Defendants/ Respondents alone and no steps had been taken to bring on record the legal representatives of the deceased.

The decree passed against a dead person is not necessarily a nullity for all purposes.

It is open to the legal representative who has been condemned unheard to waive the technical plea of abatement and decide to abide by the decree as passed against the dead person or as may be modified in appeal.

When the legal representative who is present before the Court in another capacity or in a cognate proceeding like a cross appeal or cross objection, does not raise the plea of abatement and allows the proceeding to continue against the deceased without any objection, he shall be deemed to have abandoned the plea of abatement.

In case such a legal representative opts to waive the plea of abatement and be governed by the decree, his option cannot be said to violate any law nor can it be said to be against any concept of public policy or public morality.

A point of defence that has been wilfully or deliberately abandoned by a party at a crucial stage cannot be allowed to be taken up later as a last resort or as an afterthought if that will be disadvantageous to the other party.

As in the case of N. Jayaram Reddi before the Supreme Court here also there were two cross-appeals arising out of the same suit before the High Court. Mohan deceased was Appellant in one of the appeals and was Respondent in the other. He died when both these appeals were pending and his legal representatives were impleaded in the appeal filed at the instance of Mohan though they were not impleaded in the other appeal in which Mohan was Respondent. Both the appeals were heard and disposed of on the same day. The judgment of the learned single Judge shows that whereas the present Appellants (the L.Rs. of Mohan) had instructed their counsel Shri Indar Singh, Advocate, to appear and argue out R.S.A. No. 4 of 1967 they had sent him specific instructions not to appear and argue the other appeal i.e. R.S.A. No. 30 of 1968. The learned single Judge in these circumstances concluded that the legal representatives of Mohan were no longer interested in the result of R.S.A. No. 30 of 1968 and, therefore, proceeded to hear that appeal ex parte against them. It would, therefore, follow that the plea of abatement of R.S.A. No. 30 of 1968 and its dismissal for that reason though open to the Appellants was wilfully abandoned by them in the High Court. It is not, therefore, open to the Appellants at this stage to rake it up simply because the decision of the learned single Judge has gone against them. We thus find that even the second contention raised on behalf of the Appellants is without substance.

L.P.A. No. 12 of 1973 for the reasons stated above also deserved dismissal.