State of Madhya Pradesh vs Ismile and others

Dr. T.N. Singh, J.—A preliminary objection to the hearing of the appeal is taken by Shri R.C. Lahoti, counsel appearing for the plaintiff, Abbass, who is named as one of the respondents in this appeal. The co-plaintiff Ismile having died two years back, Shri Lahoti submits, this appeal has abated and is lifeless, to be dismissed and buried. Shri Sinha, Government Advocate, has vehemently contested the submission made by Shri Lahoti and Has cited case law.

According to me, the legal position is not at all complex. If it is found that the two plaintiffs had undivided and indistinct shares in the suit property death of one would result in the abatement of the appeal as a whole. Because the plaintiffs jointly got a decree in the instant case, counsel rightly submits, that decree cannot be set aside only against the surviving plaintiff, Abbass, as the two plaintiffs did not have distinct shares in the property claimed. The question indeed is, whether in fact they had distinct shares and not whether they should be deemed despite reliance placed on the M.P.L.R. Code. What has to be done in such matters is to look into the pleadings and also the judgments of the Courts below. It is established. in this case beyond any shade of dispute that the two plaintiffs claim to be in joint possession of the suit land long before enactment of M.P.LR. Code on the footing that they were Bhumiswamis of the suit land which right by the instant suit they wanted the Court to declare in their favor. This they had to do because their title was clouded as a result of consolidation proceedings in which they got nothing.

Both Courts have upheld the contention of the plaintiffs and have decreed their suit rejecting the contention of the appellant-defendant, namely the State of Madhya Pradesh that the plaintiffs were tort-feasors in that they were in unauthorised possession of the suit land. Shri Sinha has pressed in service a Single Bench decision of this Court in the case of Rashida Khatoon, 1969 MPU 587 : 1969 JLJ 686 wherein it was held that on account of death of one of the joint tort-feasors the appeal does not abate. Counsel has also relied on the decision in Dayaratn, AIR 1966 SC 1049, wherein it was held that when there was sufficient representation by impleading some of the legal representatives no objection could be taken to the decree passed in such an appeal. I do not read anything in the decision to take the view that the abatement is not automatic and it does not take effect by the force of the statutory provision engrafted in Order 22, Rule 4, Code of Civil Procedure. Indeed, it was not so held by their Lordships. What was held was that when the appeal had not abated and it was brought to the notice of the Court hearing the appeal that some of the legal representatives had not been brought on record then it would be its duty to bring them on records.

Shri Sinha submits that the two plaintiffs are brothers and as such the appeal would not abate under the Mahomedan Law because of the death of the co-plaintiffs. To this there is a very short and simple answer which is provided by I.A. No. 591 of 1986 filed by the appellant-applicant stating that the deceased respondent, Ismile, has left heirs surviving him, his widow as also sons, Abdul Rasul, Ashgar Ali, Yakub Ali, Fakharuddin and Mohasin and a daughter Fatima. On referring to the table of shares, at page 66A of Mulla''s Principles of Mahomeden Law, 18th Edn., I find that an uterine brother''s normal share is 1/6th which he can in herts when there is no child or child of a son of father or true grant-father surviving the deceased. Shri Sinha has, however, drawn my attention to page 76 to illustrations 5 and 7 where brothers and sisters are shown as inheriting as residuaries along with husband and mother. The case of the two illustrations is evidently a different one. Indeed, in this case the position is that deceased Ismile has left surviving him a daughter, five sons and a widow. I have no hesitation at all, therefore, to take the view that the brother, co-plaintiff Abbass, does not and cannot at all figure as a legal representative of the deceased plaintiff, Ismile.

The decision in Mahabir Prasad Vs. Jage Ram and Others, , cited by Shri Sinha has been rightly distinguished by Shri Lahoti, who has drawn my attention to what is to be read in the last portion of the right-hand column of page 743. In that case there was an order against decree-holders but all the decree-holders did not appeal. Indeed, one of them only appealed, other two were joined as respondents. Eviaendy, that decision has no relevanoe to the facts of the instant'' case. On the other hand, I find much support for Shri Lahoti''s. contention and endorse his reliance on the case-law, also emanating from the Apex Court. In Ramagya Prasad Gupta and Others Vs. Shri Murli Prasad and Others, , it was held that the Court shall not proceed with an appeal when the success of the appeal may lead to the Cqurt''s coming to a decision which would conflict with decision between the appellant and the deceased respondent when it 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. Another test which itself was also sufficient to hold an appeal as abated was said to constitute of the fact that the decree against the surviving respondent, if the appeal succeeds would be ineffective, in that it could not be successfully executed. In Madhi Vs. Mahanbai and Others, , it was held that failure to bring on record within time legal representatives of the deceased respondent results in abatement of the appeal in terms of Order 22, Rule 11, Code of Civil Procedure.

In The State of Punjab Vs. Nathu Ram, , also cited by Shri Lahoti, the respondents were brothers. One of them died during die pendency of the appeal and it was held that because the appeal had abated against one of the brothers it also abated against other brother because to get rid of a joint decree it was imperative for the appellant to implead both joint decree-holdres and that in the absence of one of, them the appeal was not properly constituted. It was further held that the mere record of specific shares of the two brothers in revenue record was no guarantee of the correctness of such shares. It was indeed further held that when the provision of Order 22, Rule 4, CPC does not apply, the question has to be examined in the light of the provisions contained in Order 1, Rule 9, Code of Civil Procedure. If the Court is in a position to deal with the matter in controversy so as to resolve the conflict between the rights and interests of the appellants and the respondents other than the deceased respondent, it can proceed with the appeal and decide the controversy; but not otherwise. If nothing else fits in with the facts and circumstances of the instant cases, this judicial dicta undoubtedly embraces squarely the facts and circumstances of the instant case.

Much has been said today on the subject and it is not necessary to examine any further the legal position except to say that even though the appeal has abated it shall be open to the State or even to the other defendants/respondents to make appropriate application for setting aside abatement, if so advised. That shall be considered on merits but in so far as this appeal is concerned, it must be dismissed as abated.

Appellant''s counsel, Shri Sinha, submits that I.A. Nos. II and III of 1986 are made for setting aside abatement and that I.A. No. 591 of 1986 is for substitution of legal representatives of the deceased respondent. All those applications shall be heard separately, though I.A. Nos. II and III of 1986 shall be heard first analogously when those are registered together as M.C.C. and listed appropriately for disposal. Let office do the needful.

This appeal is disposed of in terms of the order and directions aforesaid.