Shivram and Others vs Chandulal

Jaganmohan Reddy, J.—In this second appeal the main question involved is Whether the decree of the first appellate Court was a nullity inasmuch as one of the Plaintiff-Respondents had died before the passing of the decree and no proceedings for substitution of legal representatives of the decree were taken. It appears that four Appellants Shivram, Nagosa, Sakharam and Prabhu filed a suit against seven Defendants, Chandulal, Bhagwanta, Girija, Madhav, Dondiba and Nagu for a declaration of their right for maintenance of possession and for cancellation of the decree.

As Defendants 2 to 7 admitted the claim of the Plaintiffs and only Defendant 1 contested it, the trial Court decreed the suit of the Plaintiffs against Defendant 1 who filed an appeal against the four Appellants and Defendants 2 to 7. The appeal was allowed on 21st Farwardi, 1358 F.

In his memorandum of appeal the Appellant alleged that before the decree was passed by the first appellate Court, Plaintiff 2 who was Respondent 2 in that appeal died on 21st Sherewar 1357 F., and no proceedings to bring on record the L. Rs. of the deceased Plaintiff were taken and that having regard to the nature of the decree which was one and indivisible, the trial Court''s decree was a nullity.

This appeal was filed in 1358 F., and though the Respondents were served as long ago as 12th Aban 1358 F., no steps were taken by them either by affidavit or petition to controvert the statement of the Appellant that Nagosa had died before the decree on 31st Sherewar 1357 F.

After several years of adjournments on 20-12-1954 Shri Vamanrao, advocate took time to file his vakalat on behalf of the Respondents and it is only on 28-3-1955 he indicated his desire to file an affidavit with respect to the plea taken in para. 5 of the memorandum of appeal, thereafter his client has filed an affidavit on 5-8-1955 denying that Plaintiff Nagosa died as alleged on 31st Sherewar 1357 F., and stating that his death took place on 2-7-1358 F.

The learned advocate for the Respondent has filed a translation of the affidavit which is in Marathi from which we could gather no details as to where Nagosa died and in what circumstances he died. The affidavit; appears to be a mere formality and half-hearted and it has in no way on the face of it given any convincing proof of the death having taken place on 2-7-1358F. as alleged.

Having regard to the long delay and the latches of the Respondents notwithstanding the fact that each one of them was served with a copy of the memorandum of appeal in 1358 F., the affidavit of the Respondent appears to be belated and half-hearted. We are unable to rely on it and we think that the facts alleged in the memorandum of appeal and the affidavit not having been properly challenged to our satisfaction, in spite of the Respondents having nearly eight years to do it in, it must be assumed that Nagosa died before the decree was passed as alleged.

The question now is whether the decree of the lower appellate Court allowing the appeal in the absence of one of the decree-holder is, of no effect. Under Order 22, Rules 3 and 4 read with Rule 11 where there are several plaintiffs or Defendants or Appellants or Respondents, as the case may be, and one of them dies and the right to sue does not survive, the Court on an application in that behalf can cause the legal representatives of the deceased to be brought on record and proceed with the suit.

Further Sub-rule (2) of Rule 3 and Sub-rule (3) of Rule 4, state that if no application has been filed, the suit, shall abate as against the deceased Plaintiff or Defendant or as the case may be, the Appellant or the Respondent, so that generally under Order 22, Rules 3 and 4 in the event of the death either of the Plaintiff or the Defendant, the suit or the appeal abates only to the extent of and against the deceased person when, his legal representatives are not brought on record.

But there would arise a question as to the effect of such abatement upon the decree, that is, where the decree is one and indivisible and the appeal abates against one of the decree-holders, can any remedy be given against the other decree-holders; and if such a remedy cannot be given then the entire appeal would abate. The question whether the entire appeal or suit abates or not must, therefore, in each case, be determined by the circumstances of that particular case.

Several judgments have been cited before us by the learned advocates for the Appellants as well as of the Respondents to which we do not wish to make any detailed reference as each one of those decisions is capable of being distinguished upon the particular facts and circumstances of the respective case.

A few of these cases deal with the death of Defendants, some deal with cases where the rights of the parties have been specified and ascertained and there are yet others which deal with cases where a joint injunction has been granted.

It is now firmly established as observed in the case of (sic) - ''Kanhaiyalal v. Balaram AIR 1954 Nag 274 (A), by a series of decisions of the different High Courts of India that where a number of co-Plaintiffs have obtained. a decree for joint possession, in an appeal by the Defendants from such a decree all the Plaintiffs are necessary parties, and if one of them dies, and no substitution is made in his stead, though the appeal abates only as against him the appeal becomes incompetent and cannot be heard as no effective relief could be given by the appellate Court in the absence of the legal representatives of the deceased party.

In that sense the appeal is held to have abated as a whole. In the case of - Onkar Singh and Another Vs. Rameshwar and Others, , the Allahabad High Court laid down that in order to determine whether an appeal fails as a whole or only to the extent, of the interest of the deceased Respondent, the test is to see whether in the event of the appeal being allowed against Respondents who are already on the record there would be two Inconsistent decrees in the same case with respect to the same subject-matter or not.

In the event of there being a likelihood of two inconsistent decrees which will be infructuous, the appeal should fail as a whole because it would be fruitless to pass a decree which would be ineffective and incapable of execution, in view of the decree in favour of the deceased Respondent having become final: Where, however, there is no likelihood of two inconsistent decrees in the event of the appeal being allowed, against the Respondents who are on the record and the decree passed in appeal can be executed, then in that case the appeal does not fail as a whole.

The reason for this, in our view, is obvious, namely, when during the pendency of an appeal one of the Plaintiff-Respondents who is a decree-holder dies and his legal representatives are not brought on record, the decree would be an in-fructuous one because the decree in favour of the deceased Plaintiff would become final entitling his legal representatives to execute, while the Defendant in case he succeeds in appeal against the remaining Plaintiffs would be powerless to stop the legal representatives of the deceased Plaintiff from executing the decree in favour of the deceased Plaintiff.

That is exactly what has happened in this case. In so far as the decree against Nagosa is concerned, it is final inasmuch as the legal representatives have not been brought on record and no remedy can be given against a dead person; consequently the legal representatives of the deceased Nagosa could execute the decree while the decree obtained by the other Plaintiff-Respondents is set aside. This would lead to what the Allahabad High Court observed to two inconsistent decrees which cannot be executed.

Learned advocate for the Respondent further urges that the decrees passed by the trial Court in this case was not a joint, decree and was not one which was indivisible, but one where the shares of each of the Plaintiffs was specified and could be ascertained. It is not open to us to see whether the shares of each one could be specified and ascertained. What we have to see is whether the decree is one which is indivisible.

The Plaintiffs allege that they were entitled to one-sixth share of Bhagwanta who had half interest in, S. No. 78. The decree was passed in these terms and as such it cannot be said that the shares of each one of the Plaintiffs was specified. In our view the decree is one which is indivisible.

Having regard to the aforesaid circumstances we think that the decree passed by the lower appellate Court against a dead person has the effect of abating the appeal against Respondent Nagosa which in turn makes the entire appeal incompetent and that no effective remedy can be given. In this view of the matter this appeal will be allowed with costs and the decree of the trial Court restored.