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Hemareddi (D) Through Lrs. vs Ramachandra Yallappa Hosmani . on 7 May, 2019

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4103 OF 2008

HEMAREDDI (D) THROUGH LRs. ….APPELLANT(S)

VERSUS

RAMACHANDRA YALLAPPA HOSMANI
AND ORS. ….RESPONDENT(S)

J U D G M E N T

K.M. JOSEPH, J.

1. This appeal by special leave is directed against

the order of the High Court in Regular First appeal

No.717 of 1998. By the impugned judgment, the High

Court has taken the view that the appeal filed by
Signature Not Verified

Digitally signed by
ARJUN BISHT
Date: 2019.05.07
14:52:50 IST
Reason:

1
the appellant does not survive for consideration.

This is on the following reasoning:

The appeal was filed by the appellant and his late

brother against the judgment by the trial court

dismissing the suit filed by them. The relief

in the suit was to declare that defendant No.1

was not the adopted son and he has no title or

interest over the suit property and for

prohibitory injunction against the defendant not

to disturb the joint possession of the suit

agricultural land of the plaintiff and defendant

No.2.

2. It was the appellants case that one

Govindareddi, the propositus died in 1946. He left

behind him two sons and a daughter. The plaintiffs

were the children of one of the sons. The second

defendant was the wife of the other son Basavareddi.
2
The suit properties were the properties of the joint

family of Govindareddi and his sons it was claimed.

The plaintiffs have filed another suit as O.S. No.66

of 1990 against the second defendant for declaration

that she has no right in the property. Injunction

was also sought. Injunction was ordered against

her. On the ill advice of some advisors it was their

case that she has created a false document of

adoption dated 27.04.1991 adopting the first

defendant. Defendants 3 and 4 are alleged to have

given to the first defendant on adoption to the

second defendant. The trial Court dismissed the

suit and therefore upheld the adoption. Against

the said judgment as noted, both the plaintiffs

preferred first appeal before the High Court. It

is while so that during the pendency of the appeal

the second plaintiff/second appellant died. The

LRs of the second appellant were not brought on
3
record. The appeal, therefore, abated qua the

second appellant. The High Court took the view that

having regard to the decree which has been passed

the appeal would abate not only qua the second

appellant/ plaintiff but as a whole and accordingly

it was so ordered.

3. We have heard learned counsel for the

parties.

4. Learned counsel for the appellant drew our

attention to the following orders passed by the High

Court in the appeal and referred to in the impugned

judgment:

“8. When the matter was listed on 20th
July, 2001, this court observed thus:

It is stated by the learned counsel for
the appellant that the second
appellant (plaintiff No.2) is died and
in view of the death of second
appellant, the matter is adjourned by
two weeks to enable the appellants’
counsel to take steps.”

4

9. The appeal was relisted on
10.09.2001. This court has observed thus:

Hence the appeal filed against the
appellant No.2 abates. Memo filed by
appellant No.1 submitting himself and
appellant No.2 are brothers and
co-owners of suit schedule property.
Since the LRs of appellant No.2 have
not evinced interest to prosecute the
appeal, appellant No.1 prays
permission to prosecute the appeal.
Accordingly, permission is granted.”

5. Learned counsel for the appellant would

contend that the appellant herein could have filed

a separate suit seeking the same relief.

Learned counsel for the appellant relied upon

the order passed on 10/09/2001 and contended that

though the LRs of the appellant No.2 did not evince

interest to prosecute the appeal, the petitioner who

is appellant No.1 prayed for permission to prosecute

the appeal. The permission was granted by the High

Court. The respondents did not oppose the

prosecution of the appeal filed by the appellant
5
despite knowing that the second appellant did not

choose to get themselves impleaded and the appeal

would have abated qua him also. According to the

appellant this would stand in the way of the court

and the respondents from proceeding on the basis

that the appeal has abated as a whole. In other

words, he contended that estoppel will operate

against the appeal being dismissed on the death of

the second appellant, and on the basis that the

appeal has abated as a whole. He also drew our

attention to the judgment of this Court in Sardar

Amarjit Singh Kalra (Dead) BY LRS. and SectionOthers v.

Pramod Gupta (Smt) (D) BY LRS. And Others; 2003 (3)

SCC 272.

6. Per contra, learned counsel appearing for

the respondents supported the order of the High

Court. He contended that the order passed by the

6
High Court will not operate as estoppel estopping

them from contending that the appeal has abated as

a whole. There would be conflict of decrees, as on

the one hand, the trial Court has passed a decree

upholding the adoption, and even if the High Court

were to allow the appeal filed by the appellant and

hold that the adoption was invalid, there will be

two conflicting decrees, one by the trial Court

which as far as the deceased second appellant is

concerned, has become final and another by the High

Court taking a contrary view. This is not

contemplated in law and therefore, the reasoning of

the High Court is only to be supported.

7. Death of a party during the currency of a

litigation indeed has given rise to vexed questions.

Procedure is the hand maiden of justice, the

technicalities of law should not be allowed to

7
prevail over the demands of justice and obstacles

in the path of the Court considering a case on merit

should not ordinarily become insuperable. On the

other hand, if the so called procedural requirement

is drawn from a wholesome principle of substantive

law to advance the cause of justice, the same may

not be overlooked.

Order XXII Rule 3 C.P.C.

“3. Procedure in case of death of one of
several plaintiffs or of sole plaintiff
(1) Where one of two or more plaintiffs
dies and the right to sue does not survive
to the surviving plaintiff or plaintiffs
alone, or a sole plaintiff or sole
surviving plaintiff dies and the right to
the sue survives, the Court, on an
application made in that behalf, shall
cause the legal representative of the
deceased plaintiff to be made a party and
shall proceed with the suit.

(2) Where within the time limited by
law no application is made under sub-rule
(1), the suit shall abate so far as the
deceased plaintiff is concerned, and, on
the application of the defendant, the Court
may award to him the costs which he may have
incurred in defending the suit, to be

8
recovered from the estate of the deceased
plaintiff.”

8. There can be no doubt that Order XXII Rule

3 is applicable also to appeals filed under Order

41. Order XXII Rule 3 declares that where one of

two or more plaintiffs dies and the right to sue does

not survive to the surviving plaintiff or plaintiffs

alone inter alia the Court on an application can

substitute the legal representatives of the

deceased plaintiff and proceed with the suit.

Sub-rule (2) provides that if it is not so done, the

suit shall abate as far as the deceased plaintiff

is concerned. Order XXII Rule (3) therefore is

applicable when either a suit or an appeal is filed

by more than one plaintiffs or appellants as the case

may be. This is no doubt apart from it applying when

there is a sole plaintiff or sole appellant. In such

a situation, on the death of one of the plaintiffs
9
or appellants and the right to sue does not survive

to the remaining plaintiff/plaintiffs or

appellant/appellants alone, then the LRs of the

deceased party can come on record. Should he not

do so, ordinarily, the proceeding will abate as far

as the deceased party is concerned.

9. Let us first of all examine whether the right

to sue survived to the appellant alone or the right

to sue was available to the LRs of the deceased

appellant as well. It is quite clear that there

were legal representatives available for the second

appellant. This is not a case where the estate of

the second appellant would pass to the appellant

herein by survivorship or otherwise. Therefore,

the first requirement is fulfilled for allowing

Order XXII Rule 3 to operate. Admittedly, steps

were not taken for substitution in regard to the

10
second appellant. The appeal, therefore, abated

qua him as is declared by Order XXII Rule 3(2).

Though this is all that the Order XXII Rule 2

declares, the principle has evolved that in certain

kinds of litigation, the consequences of abatement

qua a party is not limited to the deceased party

alone but it affects all the other parties and the

litigation itself. In other words, a suit or an

appeal as the case may be, would suffer an untimely

demise by the proceeding abating as a whole.

10. The question which we are called upon to

answer is whether this is such a case? The

allegation in the plaint as we have noticed is that

the suit properties are joint properties and the

second defendant had no exclusive right to the

property. She had created a false document

described as an adoption deed by which she has

11
purported to adopt the first defendant. The first

defendant cannot claim any right to the suit

property as an adopted son. On the alleged date of

adoption, the husband of the second defendant was

alive. He had died on 16.04.1987, in jointness with

the plaintiffs. The plaintiffs were the joint owners

of the suit land and also other property. When

Basavareddi, the husband of the second defendant was

alive, she has no right to take the first defendant

on adoption. Defendant No.1 cannot claim any title

interest or right over the suit property.

11. In this case having noted pleadings and the

relief sought we can proceed on the basis that it

was the appellant’s case that the plaintiff’s

property was the joint family property belonging to

the appellant and his deceased brother. The trial

Court dismissed the suit. The result is that the

12
adoption of the 1st defendant by the 2nd defendant

which was challenged by the appellant and his late

brother was upheld. The said judgment was called

in question in a Single Appeal by the appellant and

his late brother. It is while the appeal was so

pending that the late brother passed away. The

appeal having abated in regard to the late brother,

the decree of the trial Court has become final qua

the deceased brother of the appellant. The effect

of the same is that the adoption is found legal. The

result of the appellant being allowed to proceed

further and succeed in the appeal would be the

passing of a decree by the High Court. The said

decree would be to the effect that the adoption is

invalid. The suit which was jointly filed by the

appellant and his late brother would have to be

decreed whereas the suit filed by the appellant and

his late brother stands dismissed by the trial
13
Court. Both the decrees cannot stand together.

There would be irreconcilable conflict. The

defendants are common. They would be faced with two

decrees regarding the same subject matter which are

irrevocably conflicting.

12. SectionIn State of Punjab vs. Nathu Ram AIR 1962 SC

89, the Punjab Government had acquired certain

pieces of land belonging to two brothers. Upon their

refusal to accept the compensation offered, their

joint claim was referred to arbitration on the basis

that the land belong to them jointly. An award was

passed in their favour. The Government appealed

before the High Court. During pendency of the

appeal, one of the brothers died. No application

was filed to bring on record his LRs within the time

limit. The High Court dismissed the appeal and

reasoned that it abated against the person who has

14
died and the appeal abated as a whole. It is useful

to advert to what this Court has laid down in SectionState

of Punjab vs. Nathu Ram (Supra) at pages 638-640:

………… “The Code does not provide for the
abatement of the appeal against the other
respondents. Courts have held that in
certain circumstances, the appeals against
the co-respondents would also abate as a
result of the abatement of the appeal
against the deceased respondent. They have
not been always agreed with respect to the
result of the particular circumstances of
a case and there has been, consequently,
divergence of opinion in the application of
the principle. It will serve no useful
purpose to consider the cases. Suffice it
to say that when O. XXII, r. 4 does not
provide for the abatement of the appeals
against the co-respondents of the deceased
respondent, there can be no question of
abatement of the appeals against them. To
say that the appeals against them abated in
certain circumstances, is not a correct
statement. Of course, the appeals against
them cannot proceed in certain
circumstances and have therefore to be
dismissed. Such a result depends on the
nature of the relief sought in the appeal.

The same conclusion is to be drawn from
the provisions of O.I, r.9, of the Code
which provides that no suit shall be
defeated by reason of the misjoinder or
non-joiner of parties and the Court may, in
every suit, deal with the matter in
controversy so far as regards the rights
15
and interests of the parties actually
before it. It follows, therefore, that if
the Court can deal with the matter in
controversy so far as regards the rights
and interests of the appellant and the
respondents other than the deceased
respondent, it has to proceed with the
appeal and decide it. It is only when it is
not possible for the Court to deal with such
matters, that it will have to refuse to
proceed further with the appeal and
therefore dismiss it.

The question whether a Court can deal
with such matters or not, will depend on the
facts of each case and therefore no
exhaustive statement can be made about the
circumstances when this is possible or is
not possible. It may, however, be stated
that ordinarily the considerations which
weigh with the Court in deciding upon this
question are whether the appeal between the
appellants and the respondents other than
the deceased can be said to be properly
constituted or can be said to have all the
necessary parties for the decision of the
controversy before the Court. The test to
determine this has been described in
diverse forms. Courts will not proceed with
an appeal (a) when the success of the appeal
may lead to the Court’s coming to a decision
which be in conflict with the decision
between the appellant and the deceased
respondent and therefore which 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; (b) when the
appellant could not have brought the action
16
for the necessary relief against those
respondents alone who are still before the
Court and (c) when the decree against the
surviving respondents, if the appeal
succeeds, be ineffective, that is to say,
it could not be successfully executed.

There has been no divergence between the
Courts about the Court’s proceeding with
the appeal between the respondents other
than the deceased respondent, when the
decree in appeal was not a joint decree in
favour of all the respondents. The
abatement of the appeal against the
deceased respondent, in such a case, would
make the decree in his favour alone final,
and this can, in no circumstances, have a
repercussion, on the decision of the
controversy between the appellant and the
other decree-holders or on the execution of
the ultimate decree between them.
The difficulty arises always when there
is a joint decree. Here again, the
consensus of opinion is that if the decree
is joint and indivisible, the appeal
against the other respondents also will not
be proceeded with and will have to be
dismissed as a result of the abatement of
the appeal against the deceased
respondent. Different views exist in the
case of joint decrees in favour of
respondents whose rights in the subject
matter of the decree are specified. One
view is that in such cases, the abatement
of the appeal against the deceased
respondent will have the result of making
the decree affecting his specific interest
to be final and that the decree against the
other respondents can be suitably dealt
17
with by the appellate Court. We do not
consider this view correct. The
specification of shares or of interest of
the deceased respondent does not affect the
nature of the decree and the capacity of the
joint decree-holder to execute the entire
decree or to resist the attempt of the other
party to interfere with the joint right
decreed in his favour. The abatement of an
appeal means not only that the decree
between the appellant, and the deceased
respondent has become final, but also, as
a necessary corollary, that the appellate
Court cannot, in any way, modify that
decree directly or indirectly. The reason
is plain. It is that in the absence of the
legal representatives of the deceased
respondents, the appellate Court cannot
determine anything between the appellant
and the legal representatives which may
affect the rights of the legal
representatives under the decree. It is
immaterial that the modification which the
Court will do is one to which exception can
or cannot be taken.”
(Emphasis supplied)

The attempt of the State to contend that the brothers

had equal share of land in the village records and

therefore, the appeal should be proceeded with did

not appeal to the court. This Court further

proceeded to observe that the brother has made a

18
joint claim and had a joint decree and the frame of

the appeal was with reference to the decree

challenged. The appeal failed. It will be

immediately noticed that this was a case which

involved Order XXII Rule 4. Order XXII Rule 4 reads

as follows:

“4. Procedure in case of death of one of
several defendants or of sole defendant –

(1) Where one of two or more defendants
dies and the right to sue does not survive
against the surviving defendant or
defendants alone, or a sole defendant or
sole surviving defendant dies and the right
to sue survives, the Court, on an
application made in that behalf, shall
cause the legal representative of the
deceased defendant to be made a party and
shall proceed with the suit.

(2) Any person so made a party may make
any defence appropriate to his character as
legal representative of the deceased
defendant.

(3) Where within the time limited by law
no application is made under sub-rule (1),
the suit shall abate as against the
deceased defendant.

(4) The Court whenever it thinks fit, may
exempt the plaintiff from the necessity of
substituting the legal representatives of
19
any such defendant who has failed to file
a written statement or who, having filed
it, has failed to appear and contest the
suit at the hearing; and judgment may, in
such case, be pronounced against the said
defendant notwithstanding the death of
such defendant and shall have the same
force and effect as if it has been
pronounced before death took place.”

13. The next decision we would notice is the

decision in Ram Sarup vs. Munshi Ors. 1963 (3) SCR

858. The case involved the death of one of the

respondents during the pendency of the appeal filed

by the State. The question involved was whether the

right of preemption would continue to be available

despite the repeal of the Punjab Alienation of Land

Act, 1900. In one of the civil appeals, the

pre-emptors who claimed the right of pre-emption who

were 4 in number, obtained a decree against the

vendees. The appellant vendees had purchased the

property for Rs. 22,750/-. The appellant Nos.1 and

2 paid one half amounting to Rs.11,375/-. The other
20
3 appellants paid the other half. The sale deed

showed that it was not a case of sale of separate

items in favour of deceased-appellant but of one

entire set of properties enjoyed by two set of

vendees in equal share. Pending the appeal by the

appellants vendees, the first appellant died and it

abated as against him. In this set of facts this

Court proceeded to hold that the decree being a joint

decree and a part of the decree has become final by

reason of the abatement, the entire appeal would

abate. The reasoning was there could be no partial

pre-emption because pre-emption was the

substitution of pre-emptors in place of the vendees

and it was found that if the decree in favour of the

pre-emptors in respect of the share of the deceased

vendee appellant had become final there would be two

conflicting decrees if the appeal were to be allowed

and the decree of pre-emption insofar as appellants
21
2 to 5 were concerned was interfered with. It must

at once be noticed that Order XXII Rule 3 provides

for the converse of Order XXII Rule 4. That is to

say Order XXII Rule 3 deals with a case where one

or more plaintiffs or appellants or the sole

plaintiff or sole appellant dies during the pendency

of the suit or appeal. Order XXII Rule 4 on the

other hand deals with a case where one or more of

the defendants in the suits or sole defendant or the

respondents or sole defendant in the appeal dies.

In both these cases it must be noticed that it is

a condition precedent for the provisions to apply

that the right to sue does not survive to the

remaining plaintiffs/ appellants (Order XXII Rule

3) or the remaining one or two appellants and right

to sue does not survive against the defendant or

defendants in the suit or respondents in the appeal

alone or the sole defendant or surviving defendants
22
dies and the right to sue survives. It must be noted

that Order XXII Rule 2 deals with a situation where

there are more than one plaintiffs and defendants

and any of them dies and the right to sue survives

to the surviving plaintiff or plaintiffs alone or

against the surviving defendant or defendants

alone, the suit or the appeal shall be proceeded

against at the instance of the surviving plaintiff

or plaintiffs/appellant or appellants or against

surviving defendant or defendants in the

suit/respondents in the appeal.

14. SectionIn Ram Sarup vs. Munshi Ors. (supra), nine

persons instituted a suit for ejectment and recovery

of rent against two defendants. The suit was

decreed. In an appeal by the defendants, the decree

of the Trial Court was set aside against the second

defendant. During the pendency of the second

23
appeal filed by all the plaintiffs, one of them died.

His LRs were not brought on record and the appeal

abated as far as such appellant was concerned. The

objection raised by the respondents that the appeal

could not be proceeded with as the appeal abated as

a whole, was accepted. An attempt was made under

Order XXII Rule 2 by contending that the nine

appellants constituted a Joint Hindu Family and on

the death of one of the appellants, the right to sue

survived in favour of the remaining appellants, as

at that time the SectionHindu Succession Act had not been

passed, was repelled on facts by holding that the

appellants did not constitute a Joint Hindu Family.

Further attempt to draw support from Order XLI Rule

4, namely, that the appeal proceeded on a ground

common to all the plaintiffs and defendants, and any

one of the plaintiffs /defendants may appeal from

the whole decree and the decree could be reversed
24
or varied in favour of the plaintiffs or defendants

was not accepted as it was found that Order XLI Rule

4 only enabled one of the plaintiffs/defendants to

file an appeal and it would not apply in a case where

all the plaintiffs had filed the second appeal. The

Court took the view that the appeal abated as a whole

as all the appellants had a common right in getting

an ejectment against the second defendant and such

a decree was on a ground common to all of them. It

was further found that the defendants could not be

ejected from the premises when he had a right to

remain in occupation on the basis of a decree holding

that a deceased-appellant, one of the persons having

joint interest in letting out property could not

have ejected him. It was further held that it was

not possible for the defendant to continue as tenant

of one of the landlords and not as a tenant of the

25
others when all of them had a joint right to eject

or to have him as their tenant.

15. In the judgment of this Court in SectionHarihar

Prasad Singh and Others vs. Balmiki Prasad Singh and

Others 1975 (1) SCC 212, the issue involved was the

acceptability of a custom set up by the plaintiff

was that they were Bhumidar Brahmins by caste and

under which custom more distant heirs than the

shastric heirs also joined the latter in succession

of a separate male member dying without any issue

and leaving any widow. A preliminary objection was

also raised that the appeal itself abated under the

following facts:

Plaintiff No.29 died in 1953. His widow and son

were substituted. With the coming into force of

the SectionHindu Succession Act, the share of the widow

in her husband’s estate became a full estate.
26
The widow, in turn, died in 1967. She left

behind her daughter and her son. The son had

already been impleaded upon the death of his

father. The decree it was pointed out was one

and indivisible and the whole appeal had abated,

upon the widow dying not having impleaded her

daughter, the whole appeal abated. This

argument was repelled after referring to all the

authorities. This Court in SectionHarihar Prasad Singh

and Others vs. Balmiki Prasad Singh and Others

(Supra) took the view inter alia as follows:

“32. The important point to note about
this litigation is that each of the
reversioners is entitled to his own
specific share. He could have sued for his
own share and got a decree for his share.
That is why five title suits Nos.53 and 61
of 1934 and 20, 29 and 41 of 1935 were filed
in respect of the same estate. In the
present case also the suit in the first
instance was filed by the first and second
plaintiffs for their one-twelfth share.
Thereafter many of the other reversioners
who were originally added as defendants
were transposed as plaintiffs. Though the
27
decree of the trial Court was one, three
appeals Nos.326, 332 and 333 of 1948 were
filed by three sets of parties. Therefore,
if one of the Plaintiffs dies and his legal
representatives are not brought on record
the suit or the appeal might abate as far
as he is concerned but not as regards the
other plaintiffs or the appellants.”
(Emphasis Supplied)

16. The last judgment we would like to refer to

is the judgment relied on by the appellants and that

is the judgment of the Constitution Bench in Sardar

Amarjit Singh Kalra (Dead) by LRS. SectionOrs. vs. Pramod

Gupta (Smt.)(Dead) by LRS. Ors. 2003 (3) SCC 272.

In the said judgment the matter arose under the SectionLand

Acquisition Act. The facts set out indicate inter

alia that a joint appeal was filed by a number of

proprietors. However, the court found that they

had distinct and independent claims. The three

different categories of claimants before the Land

Acquisition Collector were noted as follows:

28
“3. An extent of about 5500 bighas of
land described as “gair mumkin Pahar”
(uncultivable mountainous area) situated
at Masudpur Village within the Union
Territory of Delhi was acquired by the
Government for planned development of
Delhi. Notifications were issued: (1) on
24.10.1961 for acquisition of 720 bighas
and 4 biswas out of 4307 bighas and 18
biswas under Section 4 of the Land
Acquisition Act, 1894 (hereinafter
referred to as “the Act”). It may be stated
at this stage itself that an extent of 390
bighas of land notified on 24.10.1961 and
acquired by passing the award in Award
No.1944 does not form the subject-matter of
these proceedings. Declarations under
Section 6 of the Act were issued on
6.8.1966. In the course of the award
enquiry claims were filed before the Land
Acquisition Collector by three categories
of claimants as hereunder:

i) Claims by the Union of India and the
Gaon Sabha that the lands acquired
stood vested with the Gaon Sabha they
being “wasteland” under Section 7 of
the Delhi Land Reforms Act, 1954.
This claim proceeded on the basis
that not only was it `waste land’ but
also the Bhumidari Certificate
issued in favour of Smt. Gulab
Sundari was invalid and non est in
law.

ii) The other class of claims were from
the Proprietors/co-owners on the
basis that the acquired land was not
“land” as defined under Section
3(13) of the Delhi Land Reforms Act,
since they were being used for
29
non-agricultural purposes and
therefore, they neither could be
said to be “wasteland” nor could be
held to have vested in the Gaon
Sabha, for either of them to claim
any title to the lands in question
and, therefore, they continued to be
proprietors of the soil and as such
entitled to the compensation for
themselves.

iii) Yet another claim was from Smt. Gulab
Sundari and her transferees of
portions of the rights over the land
on the ground that she was the
Bhumidhar of the land measuring
about 4307 bighas and 18 biswas and
those lands were part of her
bhumidhari-holding out of which she
also claimed to have transferred
rights in an extent of 3500 bighas of
undivided holding in favour
of the other private respondents
claimants.”

There were three sets of appeals. This Court

proceeded to notice the entire case law. Paragraph

25 and 26 of the said judgment is extracted

hereinbelow:

“25. ……….The claim of each one was in
respect of his distinct, definite and
separate share and their respective rights
are not interdependant but independent.

Among themselves there is no conflicting or
overlapping interest and the grant of
30
relief to one has no adverse impact on the
other(s). The mere fact that there was no
division by metes and bounds on state of
ground is no reason to treat it to be a joint
right-indivisible in nature to be asserted
or vindicated only by all of them joining
together in the same proceedings, in one
capacity or the other. As a matter of fact,
separate claims seem to have been filed by
them before the Reference Court in respect
of their own respective share. Even if they
have engaged a common counsel or even if
they have filed one claim in respect of
their specified separate share, it could
not have the effect of altering the nature
of their claim or the character of their
right so as to make it an indivisible joint
right. Though the Reference Court has
decided all such claims together, having
regard to the similarity or identical
nature of issues arising for consideration
of the claims, in substance and reality the
proceedings must be considered in law to be
of multifarious claims disposed of in a
consolidated manner resulting in as many
number of awards of the Reference Court as
there were claimants before it. There was
no community of interest between them and
that each one of them in vindicating their
individual rights was not obliged to
implead the other claimants of their shares
in one common action/proceeding and the
orders/judgment though passed in a
consolidated manner, in law, amounts to as
many orders or judgments as there were
claimants and, by no reason, can it be
branded to be a joint and inseverable one.
Similarity of the claims cannot be a
justification in law to treat them as a
single and indivisible claim for any or all
31
purposes and such a thing cannot be
legitimately done without sacrificing the
substance to the form. The claim on behalf
of the respondents that the compensation
awarded is of a lump sum, though shares are
divided, is belied by the scheme underlying
Sections 11, Section18, Section30 and Section31 of the Act, and
cannot be countenanced as of any merit.
Against the Award of the Reference Court in
this case, it was possible and permissible
in law for every one of the appellants to
file an appeal of his own separately in
respect of his share without any need or
obligation to implead every other of the
claimants like him, as party-respondent or
as co-appellant, because there is no
conflicting interest or claims amongst
them inter se. As such, the alleged and
apprehended fear about possible
inconsistent or conflicting decrees
resulting therefrom if the appeals are
proceeded with and disposed of on merits
has no basis in law nor is well founded on
the facts and circumstances of these cases.
Even if the appellants succeed on merits,
dehors the fate of the deceased appellants
the decree passed cannot either be said to
become ineffective or rendered incapable
of successful execution. To surmise even
then a contradictory decree coming into
existence, is neither logical nor
reasonable nor acceptable by courts of Law.
Otherwise, it would amount to applying the
principle of vicarious liability to
penalize someone for no fault of his and
denial of one’s own right for the mere
default or refusal of the other(s) to join
or contest likewise before the court. The
fact that at a given point of time all of
them joined in one proceedings because one
32
court in the hierarchy has chosen to club
or combine all their individual and
separate claims for the purpose of
consideration on account of the similarity
of the nature of their claims or that for
the sake of convenience they joined
together for asserting their respective,
distinct and independent claims or rights
is no ground to destroy their individual
right to seek remedies in respect of their
respective claims. In cases of this nature,
there is every possibility of one or the
other among them subsequently reconciling
themselves to their fate and settle with
their opponents or become averse to pursue
the legal battle forever so many reasons,
as in the case on hand due to
disinterestedness, indifference or
lethargy and, therefore, the attitude,
approach and resolve of one or the other
should not become a disabling or
disqualifying factor for others to
vindicate their own individual rights
without getting eclipsed or marred by the
action or inaction of the others……….”

“26. Laws of procedure are meant to
regulate effectively, assist and aid the
object of doing substantial and real
justice and not to foreclose even an
adjudication on merits of substantial
rights of citizen under personal, property
and other laws. Procedure has always been
viewed as the handmaid of justice and not
meant to hamper the cause of justice or
sanctify miscarriage of justice. A careful
reading of the provisions contained in
Order 22 CPC as well as the subsequent
amendments thereto would lend credit and
33
support to the view that they were devised
to ensure their continuation and
culmination in an effective adjudication
and not to retard the further progress of
the proceedings and thereby non-suit the
others similarly placed as long as their
distinct and independent rights to
property or any claim remain intact and not
lost forever due to the death of one or the
other in the proceedings. The provisions
contained in Order 22 are not to be
construed as a rigid matter of principle
but must ever be viewed as a flexible tool
of convenience in the administration of
justice. The fact that the Khata was said
to be joint is of no relevance, as long as
each one of them had their own independent,
distinct and separate shares in the
property as found separately indicated in
jamabandi itself of the shares of each of
them distinctly……………”

Thus, the Court highlighted the need to apply laws

of procedure in a manner so that substantial justice

is facilitated. The Court further held as follows:

“30. The question, therefore, as to
when a proceeding before the Court becomes
or is rendered impossible or possible to be
proceeded with, after it had partially
abated on account of the death of one or the
other party on either side has been always
considered to depend upon the fact as to
whether the decree obtained is a joint
decree or a severable one and that in case
34
of a joint and inseverable decree if the
appeal abated against one or the other, the
same cannot be proceeded with further for
or against the remaining parties as well.

If otherwise, the decree is a joint and
several or separable one, being in
substance and reality a combination of many
decrees, there can be no impediment for the
proceedings being proceeded with among or
against those remaining parties other than
the deceased. As observed in Nathu Ram case
(supra) itself, the Code does not itself
provide for the abatement of the appeal
against the other respondents even where,
as against one such it has abated but it is
only the courts which have held that in
certain circumstances the appeal also
would abate against a co-respondent as a
result of abatement against the deceased
respondent. The same would be the position
of an appeal vis-a-vis the appellants, as
in the other cases. Order 22 Rule 4 also was
considered not to provide for abatement of
the appeal(s) against the co-respondents
of the deceased respondent and it was
specifically observed therein that to say
that the appeals against them also abated
in certain circumstances is not a correct
statement. It was held that the appeals
against such other respondents cannot be
proceeded against and, therefore, had to be
dismissed, in certain circumstances.”
(Emphasis Supplied)

“34. In the light of the above discussion,
we hold: –

(1) Wherever the plaintiffs or appellants
or petitioners are found to have distinct,
35
separate and independent rights of their
own and for purpose of convenience or
otherwise, joined together in a single
litigation to vindicate their rights, the
decree passed by the court thereon is to be
viewed in substance as the combination of
several decrees in favour of one or the
other parties and not as a joint and
inseverable decree. The same would be the
position in the case of defendants or
respondents having similar rights
contesting the claims against them.
(2) Whenever different and distinct
claims of more than one are sought to be
vindicated in one single proceedings, as
the one now before us, under the SectionLand
Acquisition Act or in similar nature of
proceedings and/or claims in assertion of
individual rights of parties are clubbed,
consolidated and dealt with together by the
courts concerned and a single judgment or
decree has been passed, it should be
treated as a mere combination of several
decrees in favour of or against one or more
of the parties and not as joint and
inseparable decrees.

(3) The mere fact that the claims or
rights asserted or sought to be vindicated
by more than one are similar or identical
in nature or by joining together of more
than one of such claimants of a particular
nature, by itself would not be sufficient
in law to treat them as joint claims, so as
to render the judgment or decree passed
thereon a joint and inseverable one.
(4) The question as to whether in a given
case the decree is joint and inseverable or
joint and severable or separable has to be
36
decided, for the purposes of abatement or
dismissal of the entire appeal as not being
properly and duly constituted or rendered
incompetent for being further proceeded
with, requires to be determined only with
reference to the fact as to whether the
judgment/decree passed in the proceedings
vis-a-vis the remaining parties would
suffer the vice of contradictory or
inconsistent decrees. For that reason, a
decree can be said to be contradictory or
inconsistent with another decree only when
the two decrees are incapable of
enforcement or would be mutually
self-destructive and that the enforcement
of one would negate or render impossible
the enforcement of the other.”
(Emphasis Supplied)

17. Is this a case when the appellant and his

brother were having distinct and independent claims

and rights and for the sake of convenience they had

joined as plaintiffs originally in the suit and as

appellants subsequently in the appeal? Is this a

case where there is joint decree or is it is a case

where the decree is severable? Is it therefore a

severable decree or a combination of two decrees?

Whether the decree if passed by the appellate court
37
in favour of the appellant would result in a decree

which is contradictory to the decree passed by the

trial Court.

18. In this case, undoubtedly as we have noted

the appellant and his late brother sued as

plaintiffs for a declaration that the first

defendant was not the adopted son and he has no

rights. They also sought a prohibitory injunction.

The suit stood dismissed by trial court. Let us

take the converse position. Assuming that the suit

was decreed by the trial court and appeal was carried

by the defendants, and pending the appeal by the

defendants, if the late brother of the appellant had

died and if the defendants had not impleaded the

legal representatives of late brother and the appeal

abated as against him, would it then not open to the

appellant as respondent in the appeal to contend

38
that if the appeal was to be allowed to proceed in

the absence of the legal representatives of his late

brother and succeed, there would be an inconsistent

decree. On the one hand, there will be a decree by

the trial Court declaring that the first defendant

was not the adopted son and had no interest in the

property qua the late brother of the appellant. On

the other hand, the appellate court could be invited

to pass a decree which should be to the effect that

the first defendant was found to be the adopted son

and had right and interest over the property and a

declaration to that effect would have to be granted.

Would not the appellate court then have to

necessarily hold though the decree in favour of the

deceased brother of the appellant has become final,

and under it, a declaration is granted that the

defendant No.1 is not the adopted son and he has no

right to claim the property and there is an
39
injunction against him that he is the adopted son

opposed to the decree which has been passed by the

trial court which has attained finality. We would

think that the appellate court would indeed have to

refuse to proceed with the appeal on the basis that

allowing the appeal by the defendants would lead to

an appellate decree which is inconsistent with the

decree which has become final as against the

deceased brother of the appellant.

19. We would think that the situation cannot be

any other different, when we contemplate the

converse of the aforesaid scenario which happens to

be the factual matrix obtaining in this case. The

right which was set up by the appellant alongwith

his late brother was joint. They were members of

the joint Hindu family consisting of their late

father and which consisted of late Govindareddi,

40
their father Shriram Reddy and Basavareddi, who was

none other than the husband of the second defendant.

This is not a case where their claims were distinct

claims. This is not the situation which was present

in the case dealt with by the Constitution Bench

under the land acquisition case. Therein, several

persons came together and sought relief in one

proceeding. We would think that this is not the

position in this case.

20. It may be true that if a separate suit had

been filed by the late brother and it had abated on

his death, there will be no decree on merits and the

suit would have abated. No doubt, it could be argued

that even though the appellant and his late brother

set up the case of joint right, it would only mean

that they are co-owners of the property, and

therefore, they had independent rights as co-owners

41
which could be canvassed in two different

proceedings, and therefore, the decree of the trial

court dismissing the suit be treated as two

different decrees – one decree against the appellant

and the other against his late brother. Even then,

the decree, which the High court would be invited

to pass, would be contradictory and inconsistent

with the decree as against late brother of the

appellant which may not be permissible in law.

21. The decree, which the appellant, if

successful in the appeal, would obtain, would be

absolutely contrary to the decree which has also

attained finality between his late brother and the

defendants. They are mutually irreconcilable,

totally inconsistent. Laying one side by side, the

only impression would be that one is in the teeth

42
of the other. In one, the suit is dismissed whereas

in the other, the suit would have been decreed.

22. The argument that in view of the order passed

on 10/09/2001 by which despite the death of late

brother of the appellant, permission to prosecute

the appeal was granted by the court there would arise

an estoppel against the order being passed holding

that the appeal has abated as a whole, cannot be

accepted. The impact of death of the late brother

of the appellant qua the proceeding is one arising

out of the incompatibility of a decree which has

become final with the decree which the appellant

invites the appellate court to pass. In such

circumstances, the mere fact that the appellant was

permitted to prosecute the appeal by an

interlocutory order would not be sufficient to tide

over the legal obstacle posed by the inconsistent

43
decree which emerges as a result of the failure to

substitute legal representative of the late brother

and the abating of the appeal filed by his late

brother. Consequently, we see no merit in the

appeal. It is accordingly dismissed.

…………………………………………J.

(Ashok Bhushan)

………………………………………J.

(K.M. Joseph)

New Delhi;

May 07, 2019

44

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