HEMAREDDI (D) THROUGH LRS. versus RAMACHANDRA YALLAPPA HOSMANI AND ORS. on 7 May 2019

SUPREME COURT REPORTS

[2019] 7 S.C.R.

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HEMAREDDI (D) THROUGH LRs.

v.

RAMACHANDRA YALLAPPA HOSMANI AND ORS.

(Civil Appeal No. 4103 of 2008)

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MAY 07, 2019

[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]

Code of Civil Procedure, 1908 – Or.XXII, rr.2, 3 & 4 andOr.41 – Plaintiffs’ (appellant and his late brother) case that one ‘G’died leaving behind two sons (‘SR’ and ‘B’) and a daughter –CPlaintiffs were the children of ‘SR’ – Plaintiffs filed suit against thesecond defendant, wife of ‘B’ for declaration that she had no rightin the suit property and that the document of adoption dtd. 27.04.91adopting the first defendant was a false document – Trial Courtdismissed the suit and upheld the adoption – Plaintiffs preferredDfirst appeal before the High Court – During the pendency of theappeal, the second plaintiff/second appellant therein died – HisLRs were not brought on record – High Court held that the appealabated not only qua the second appellant/plaintiff but as a whole –Held: Or.XXII, r.3 is applicable also to appeals filed u/Or.41 –Or.XXII, r.3 therefore is applicable when either a suit or an appealEis filed by more than one plaintiffs/appellants and on the death ofone of the plaintiffs/appellants, the right to sue does not survive tothe remaining plaintiff/plaintiffs or appellant/appellants alone, thenthe LRs of the deceased party can come on record – On that notbeing done, the proceeding will abate as far as the deceased partyFis concerned – In the present case, there were legal representativesavailable for the appellant’s deceased brother– Admittedly, stepswere not taken for their substitution– Appeal, therefore, abated quathe deceased brother and the decree of the trial Court became finalqua him – Effect of the same is that the adoption is found legal –Result of the appellant being allowed to proceed further and succeedGin the appeal would be the passing of a decree by the High Court tothe effect that the adoption is invalid – It would be absolutely contraryto the decree which has also attained finality between his late brotherand the defendants – Both the inconsistent decrees cannot standtogether – There would be irreconcilable conflict – Defendants are H

common and would be faced with two decrees regarding the samesubject matter – Appellant and his late brother sued as plaintiffsfor declaration that the first defendant was not the adopted sonand has no rights – Right set up by them was joint – They weremembers of the joint Hindu family consisting of late ‘G’, their father‘SR’ and ‘B’ – This is not a case where their claims were distinct –Mere fact that the appellant was permitted to prosecute the appealby an interlocutory order by the High Court would not be sufficientto tide over the legal obstacle posed by the inconsistent decreewhich emerges as a result of the failure to substitute legalrepresentative of the late brother and the abating of the appealfiled by his late brother.

Practice & Procedure – Procedural requirement vis-a-visprinciple of substantive law – Discussed.

Dismissing the appeal, the Court

Conclusion

HELD: 1.1 Procedure is the hand maiden of justice, thetechnicalities of law should not be allowed to prevail over thedemands of justice and obstacles in the path of the Courtconsidering a case on merit should not ordinarily becomeinsuperable. On the other hand, if the so called proceduralrequirement is drawn from a wholesome principle of substantivelaw to advance the cause of justice, the same may not beoverlooked. There can be no doubt that Order XXII, Rule 3,CPC is applicable also to appeals filed under Order 41. OrderXXII, Rule 3 declares that where one of two or more plaintiffsdies and the right to sue does not survive to the surviving plaintiffor plaintiffs alone inter alia the Court on an application cansubstitute the legal representatives of the deceased plaintiff andproceed with the suit. Sub-rule (2) provides that if it is not sodone, the suit shall abate as far as the deceased plaintiff isconcerned. Order XXII, Rule (3) therefore is applicable wheneither a suit or an appeal is filed by more than one plaintiffs orappellants as the case may be. This is apart from it applying whenthere is a sole plaintiff or sole appellant. In such a situation, onthe death of one of the plaintiffs or appellants and the right to suedoes not survive to the remaining plaintiff/plaintiffs or appellant/appellants alone, then the LRs of the deceased party can comeon record. Should he not do so, ordinarily, the proceeding will A

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Aabate as far as the deceased party is concerned. There were legalrepresentatives available for the second appellant. This is not acase where the estate of the second appellant would pass to theappellant herein by survivorship or otherwise. Therefore, thefirst requirement is fulfilled for allowing Order XXII, Rule 3 tooperate. Admittedly, steps were not taken for substitution inBregard to the second appellant. The appeal, therefore, abatedqua him as is declared by Order XXII, Rule 3(2). Though this isall that the Order XXII, Rule 2 declares, the principle has evolvedthat in certain kinds of litigation, the consequences of abatementqua a party is not limited to the deceased party alone but it affectsCall the other parties and the litigation itself. In other words, a suitor an appeal as the case may be, would suffer an untimely demiseby the proceeding abating as a whole.[Paras 7-9] [270-A-B; F-H;271-A-C]

1.2 The appeal having abated in regard to the late brother,Dthe decree of the trial Court has become final qua the deceasedbrother of the appellant. The effect of the same is that the adoptionis found legal. The result of the appellant being allowed to proceedfurther and succeed in the appeal would be the passing of a decreeby the High Court. The said decree would be to the effect thatthe adoption is invalid. The suit which was jointly filed by theEappellant and his late brother would have to be decreed whereasthe suit filed by the appellant and his late brother stands dismissedby the trial Court. Both the decrees cannot stand together. Therewould be irreconcilable conflict. The defendants are common.They would be faced with two decrees regarding the same subjectFmatter which are irrevocably conflicting. Order XXII, Rule 3provides for the converse of Order XXII, Rule 4. That is to sayOrder XXII, Rule 3 deals with a case where one or more plaintiffsor appellants or the sole plaintiff or sole appellant dies duringthe pendency of the suit or appeal. Order XXII, Rule 4 on the other hand deals with a case where one or more of the defendantsGin the suits or sole defendant or the respondents or soledefendant in the appeal dies. In both these cases it must benoticed that it is a condition precedent for the provisions to applythat the right to sue does not survive to the remaining plaintiffs/appellants (Order XXII, Rule 3) or the remaining one or twoHappellants and right to sue does not survive against the defendant

or defendants in the suit or respondents in the appeal alone orthe sole defendant or surviving defendants dies and the right tosue survives. Order XXII, Rule 2 deals with a situation wherethere are more than one plaintiffs and defendants and any of themdies and the right to sue survives to the surviving plaintiff orplaintiffs alone or against the surviving defendant or defendantsalone, the suit or the appeal shall be proceeded against at theinstance of the surviving plaintiff or plaintiffs/appellant orappellants or against surviving defendant or defendants in thesuit/respondents in the appeal. [Paras 11, 13] [271-H-;272-A-B; 276-C-F]

1.3 The appellant and his late brother sued as plaintiffs fora declaration that the first defendant was not the adopted son andhe has no rights. They also sought a prohibitory injunction. Thesuit stood dismissed by trial court. Taking the converse positionand assuming that the suit was decreed by the trial court andappeal was carried by the defendants, and pending the appeal bythe defendants, if the late brother of the appellant had died and ifthe defendants had not impleaded the legal representatives oflate brother and the appeal abated as against him, would it thennot open to the appellant as respondent in the appeal to contendthat if the appeal was to be allowed to proceed in the absence ofthe legal representatives of his late brother and succeed, therewould be an inconsistent decree. On the one hand, there will bea decree by the trial Court declaring that the first defendant wasnot the adopted son and had no interest in the property qua thelate brother of the appellant. On the other hand, the appellatecourt could be invited to pass a decree which should be to theeffect that the first defendant was found to be the adopted sonand had right and interest over the property and a declaration tothat effect would have to be granted. Would not the appellatecourt then have to necessarily hold though the decree in favourof the deceased brother of the appellant has become final, andunder it, a declaration is granted that the defendant No.1 is notthe adopted son and he has no right to claim the property andthere is an injunction against him that he is the adopted sonopposed to the decree which has been passed by the trial courtwhich has attained finality. The appellate court would indeed haveto refuse to proceed with the appeal on the basis that allowing AB

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Athe appeal by the defendants would lead to an appellate decreewhich is inconsistent with the decree which has become final asagainst the deceased brother of the appellant. The situation cannotbe any other different, when the converse of the aforesaid scenariois contemplated which happens to be the factual matrix obtainingin this case. The right which was set up by the appellant alongwithBhis late brother was joint. They were members of the joint Hindufamily consisting of their late father and which consisted of late‘G’, their father ‘SR’ and ‘B’. This is not a case where their claimswere distinct claims. [Paras 18, 19] [284-D-H; 285-A-C]

1.4 It may be true that if a separate suit had been filed byCthe late brother and it had abated on his death, there will be nodecree on merits and the suit would have abated. No doubt, itcould be argued that even though the appellant and his latebrother set up the case of joint right, it would only mean that theyare co-owners of the property, and therefore, they had independentDrights as co-owners which could be canvassed in two differentproceedings, and therefore, the decree of the trial courtdismissing the suit be treated as two different decrees - onedecree against the appellant and the other against his late brother.Even then, the decree, which the High court would be invited topass, would be contradictory and inconsistent with the decree asEagainst late brother of the appellant which may not be permissiblein law. The decree, which the appellant, if successful in the appeal,would obtain, would be absolutely contrary to the decree whichhas also attained finality between his late brother and thedefendants. They are mutually irreconcilable, totally inconsistent.FLaying one side by side, the only impression would be that one isin the teeth of the other. In one, the suit is dismissed whereas inthe other, the suit would have been decreed. The argument thatin view of the order passed on 10/09/2001 by which despite thedeath of late brother of the appellant, permission to prosecutethe appeal was granted by the court there would arise an estoppelGagainst the order being passed holding that the appeal has abatedas a whole, cannot be accepted. The impact of death of the latebrother of the appellant qua the proceeding is one arising out ofthe incompatibility of a decree which has become final with thedecree which the appellant invites the appellate court to pass. InH

such circumstances, the mere fact that the appellant was permittedto prosecute the appeal by an interlocutory order would not besufficient to tide over the legal obstacle posed by the inconsistentdecree which emerges as a result of the failure to substitute legalrepresentative of the late brother and the abating of the appealfiled by his late brother. [Paras 20-22] [285-D-H; 286-A-C]

Sardar Amarjit Singh Kalra (Dead) by LRS. and Othersv. Pramod Gupta (Smt) (D) by LRS. And Others ; 2003(3) SCC 272 : [2002] 5 Suppl. SCR 350 ; State ofPunjab v. Nathu Ram AIR 1962 SC 89 : [1962] SCR 636 ; Ram Sarup v. Munshi & Ors. [1963] 3 SCR 858 –relied on.

Harihar Prasad Singh and Others v. Balmiki PrasadSingh and Others 1975 (1) SCC 212 : [1975] 2 SCR 932 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4103of 2008.

From the Judgment and Order dated 02.09.2006 of the HighCourt of Karnataka at Bangalore in R.F.A. No. 717 of 1998.

V. N. Raghupathy, Chinmay Deshpande, Advs. for the Appellants.

Ashok Kumar Sharma, Mrs. Bandana Singh, Kshitij Mudgal,Deepak Jyoti Ghildiyal, Advs. for the Respondents.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. This appeal by special leave is directed against the order of theHigh Court in Regular First appeal No.717 of 1998. By the impugnedjudgment, the High Court has taken the view that the appeal filed by theappellant does not survive for consideration. This is on the followingreasoning:

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AThe appeal was filed by the appellant and his late brother againstthe judgment by the trial court dismissing the suit filed by them.The relief in the suit was to declare that defendant No.1 was notthe adopted son and he has no title or interest over the suit propertyand for prohibitory injunction against the defendant not to disturbthe joint possession of the suit agricultural land of the plaintiff andBdefendant No.2.

2. It was the appellants case that one Govindareddi, the propositusdied in 1946. He left behind him two sons and a daughter. The plaintiffswere the children of one of the sons. The second defendant was thewife of the other son Basavareddi. The suit properties were the propertiesCof the joint family of Govindareddi and his sons it was claimed. Theplaintiffs have filed another suit as O.S. No.66 of 1990 against the seconddefendant for declaration that she has no right in the property. Injunctionwas also sought. Injunction was ordered against her. On the ill adviceof some advisors it was their case that she has created a false documentDof adoption dated 27.04.1991 adopting the first defendant. Defendants3 and 4 are alleged to have given to the first defendant on adoption to thesecond defendant. The trial Court dismissed the suit and therefore upheldthe adoption. Against the said judgment as noted, both the plaintiffspreferred first appeal before the High Court. It is while so that duringthe pendency of the appeal the second plaintiff/second appellant died.EThe LRs of the second appellant were not brought on record. The appeal,therefore, abated qua the second appellant. The High Court took theview that having regard to the decree which has been passed the appealwould abate not only qua the second appellant/ plaintiff but as a wholeand accordingly it was so ordered.F3. We have heard learned counsel for the parties.

4. Learned counsel for the appellant drew our attention to thefollowing orders passed by the High Court in the appeal and referred toin the impugned judgment:

G“8. When the matter was listed on 20[th] July, 2001, this courtobserved thus:

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

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

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

5. Learned counsel for the appellant would contend that theappellant herein could have filed a separate suit seeking the same relief.

Learned counsel for the appellant relied upon the order passed on10/09/2001 and contended that though the LRs of the appellant No.2 didnot evince interest to prosecute the appeal, the petitioner who is appellantNo.1 prayed for permission to prosecute the appeal. The permissionwas granted by the High Court. The respondents did not oppose theprosecution of the appeal filed by the appellant despite knowing that thesecond appellant did not choose to get themselves impleaded and theappeal would have abated qua him also. According to the appellant thiswould stand in the way of the court and the respondents from proceedingon the basis that the appeal has abated as a whole. In other words, hecontended that estoppel will operate against the appeal being dismissedon the death of the second appellant, and on the basis that the appeal hasabated as a whole. He also drew our attention to the judgment of thisCourt in Sardar Amarjit Singh Kalra (Dead) BY LRS. and Others v.Pramod Gupta (Smt) (D) BY LRS. And Others;2003 (3) SCC 272.

6. Per contra, learned counsel appearing for the respondentssupported the order of the High Court. He contended that the orderpassed by the High Court will not operate as estoppel estopping themfrom contending that the appeal has abated as a whole. There would beconflict of decrees, as on the one hand, the trial Court has passed adecree upholding the adoption, and even if the High Court were to allowthe 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 faras the deceased second appellant is concerned, has become final andanother by the High Court taking a contrary view. This is notcontemplated in law and therefore, the reasoning of the High Court isonly to be supported.

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A7. Death of a party during the currency of a litigation indeed hasgiven rise to vexed questions. Procedure is the hand maiden of justice,the technicalities of law should not be allowed to prevail over the demandsof justice and obstacles in the path of the Court considering a case onmerit should not ordinarily become insuperable. On the other hand, ifthe so called procedural requirement is drawn from a wholesome principleBof substantive law to advance the cause of justice, the same may not beoverlooked.

Order XXII Rule 3 C.P.C.

“3. Procedure in case of death of one of several plaintiffs orCof sole plaintiff

(1) Where one of two or more plaintiffs dies and the right tosue does not survive to the surviving plaintiff or plaintiffs alone, ora sole plaintiff or sole surviving plaintiff dies and the right to thesue survives, the Court, on an application made in that behalf,Dshall cause the legal representative of the deceased plaintiff to bemade a party and shall proceed with the suit.

(2) Where within the time limited by law no application is madeunder sub-rule (1), the suit shall abate so far as the deceasedplaintiff is concerned, and, on the application of the defendant, theECourt may award to him the costs which he may have incurred indefending the suit, to be recovered from the estate of the deceasedplaintiff.”

8. There can be no doubt that Order XXII Rule 3 is applicablealso to appeals filed under Order 41. Order XXII Rule 3 declares thatwhere one of two or more plaintiffs dies and the right to sue does notFsurvive to the surviving plaintiff or plaintiffs alone inter alia the Courton an application can substitute the legal representatives of the deceasedplaintiff and proceed with the suit. Sub-rule (2) provides that if it is notso 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 anGappeal is filed by more than one plaintiffs or appellants as the case maybe. This is no doubt apart from it applying when there is a sole plaintiffor sole appellant. In such a situation, on the death of one of the plaintiffsor appellants and the right to sue does not survive to the remaining plaintiff/plaintiffs or appellant/appellants alone, then the LRs of the deceasedparty can come on record. Should he not do so, ordinarily, the proceedingHwill abate as far as the deceased party is concerned.

9. Let us first of all examine whether the right to sue survived tothe appellant alone or the right to sue was available to the LRs of thedeceased appellant as well. It is quite clear that there were legalrepresentatives available for the second appellant. This is not a casewhere the estate of the second appellant would pass to the appellantherein by survivorship or otherwise. Therefore, the first requirement isfulfilled for allowing Order XXII Rule 3 to operate. Admittedly, stepswere not taken for substitution in regard to the second appellant. Theappeal, therefore, abated qua him as is declared by Order XXII Rule3(2). Though this is all that the Order XXII Rule 2 declares, the principlehas evolved that in certain kinds of litigation, the consequences ofabatement qua a party is not limited to the deceased party alone but itaffects all the other parties and the litigation itself. In other words, a suitor an appeal as the case may be, would suffer an untimely demise by theproceeding abating as a whole.

10. The question which we are called upon to answer is whetherthis is such a case? The allegation in the plaint as we have noticed isthat the suit properties are joint properties and the second defendant hadno exclusive right to the property. She had created a false documentdescribed as an adoption deed by which she has purported to adopt thefirst defendant. The first defendant cannot claim any right to the suitproperty as an adopted son. On the alleged date of adoption, the husbandof the second defendant was alive. He had died on 16.04.1987, injointness with the plaintiffs. The plaintiffs were the joint owners of thesuit land and also other property. When Basavareddi, the husband of thesecond defendant was alive, she has no right to take the first defendanton adoption. Defendant No.1 cannot claim any title interest or right overthe suit property.

11. In this case having noted pleadings and the relief sought wecan proceed on the basis that it was the appellant’s case that the plaintiff’sproperty was the joint family property belonging to the appellant and hisdeceased brother. The trial Court dismissed the suit. The result is thatthe adoption of the 1[st] defendant by the 2[nd] defendant which waschallenged by the appellant and his late brother was upheld. The saidjudgment was called in question in a Single Appeal by the appellant andhis late brother. It is while the appeal was so pending that the latebrother passed away. The appeal having abated in regard to the latebrother, the decree of the trial Court has become final qua the deceasedbrother of the appellant. The effect of the same is that the adoption is AB

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Afound legal. The result of the appellant being allowed to proceed furtherand succeed in the appeal would be the passing of a decree by the HighCourt. 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 brotherwould have to be decreed whereas the suit filed by the appellant and hislate brother stands dismissed by the trial Court. Both the decrees cannotBstand together. There would be irreconcilable conflict. The defendantsare common. They would be faced with two decrees regarding thesame subject matter which are irrevocably conflicting.

12. In State of Punjab vs. Nathu RamAIR 1962 SC 89, thePunjab Government had acquired certain pieces of land belonging toCtwo brothers. Upon their refusal to accept the compensation offered,their joint claim was referred to arbitration on the basis that the landbelong to them jointly. An award was passed in their favour. TheGovernment appealed before the High Court. During pendency of theappeal, one of the brothers died. No application was filed to bring onDrecord his LRs within the time limit. The High Court dismissed theappeal and reasoned that it abated against the person who has died andthe appeal abated as a whole. It is useful to advert to what this Courthas laid down in State of Punjab vs. Nathu Ram(Supra) at pages 638-640:

E………… “The Code does not provide for the abatement ofthe appeal against the other respondents. Courts have held that incertain circumstances, the appeals against the co-respondentswould also abate as a result of the abatement of the appeal againstthe deceased respondent. They have not been always agreed withrespect to the result of the particular circumstances of a case andFthere has been, consequently, divergence of opinion in theapplication of the principle. It will serve no useful purpose toconsider the cases. Suffice it to say that when O. XXII, r. 4 doesnot provide for the abatement of the appeals against the co-respondents of the deceased respondent, there can be no questionGof abatement of the appeals against them. To say that the appealsagainst them abated in certain circumstances, is not a correctstatement. Of course, the appeals against them cannot proceed incertain circumstances and have therefore to be dismissed. Sucha result depends on the nature of the relief sought in the appeal.

The same conclusion is to be drawn from the provisions ofO.I, r.9, of the Code which provides that no suit shall be defeatedby reason of the misjoinder or non-joiner of parties and the Courtmay, in every suit, deal with the matter in controversy so far asregards the rights and interests of the parties actually before it. Itfollows, therefore, that if the Court can deal with the matter incontroversy so far as regards the rights and interests of theappellant and the respondents other than the deceased respondent,it has to proceed with the appeal and decide it. It is only when it isnot possible for the Court to deal with such matters, that it willhave to refuse to proceed further with the appeal and thereforedismiss it.

The question whether a Court can deal with such matters ornot, will depend on the facts of each case and therefore noexhaustive statement can be made about the circumstances whenthis is possible or is not possible. It may, however, be stated thatordinarily the considerations which weigh with the Court in decidingupon this question are whether the appeal between the appellantsand the respondents other than the deceased can be said to beproperly constituted or can be said to have all the necessary partiesfor the decision of the controversy before the Court. The test todetermine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appealmay lead to the Court’s coming to a decision which be in conflictwith the decision between the appellant and the deceasedrespondent and therefore which would lead to the Court’s passinga decree which will be contradictory to the decree which hadbecome final with respect to the same subject matter betweenthe appellant and the deceased respondent; (b) when the appellantcould not have brought the action for the necessary relief againstthose respondents alone who are still before the Court and (c)when the decree against the surviving respondents, if the appealsucceeds, be ineffective, that is to say, it could not be successfullyexecuted.

There has been no divergence between the Courts about theCourt’s proceeding with the appeal between the respondents otherthan the deceased respondent, when the decree in appeal was ABC

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not a joint decree in favour of all the respondents. The abatementof the appeal against the deceased respondent, in such a case,would make the decree in his favour alone final, and this can, inno circumstances, have a repercussion, on the decision of thecontroversy between the appellant and the other decree-holdersor on the execution of the ultimate decree between them.

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The difficulty arises always when there is a joint decree. Hereagain, the consensus of opinion is that if the decree is joint andindivisible, the appeal against the other respondents also will notbe proceeded with and will have to be dismissed as a result of theabatement of the appeal against the deceased respondent.Different views exist in the case of joint decrees in favour ofrespondents whose rights in the subject matter of the decree arespecified. One view is that in such cases, the abatement of theappeal against the deceased respondent will have the result ofmaking the decree affecting his specific interest to be final andthat the decree against the other respondents can be suitably dealtwith by the appellate Court. We do not consider this view correct.The specification of shares or of interest of the deceasedrespondent does not affect the nature of the decree and thecapacity of the joint decree-holder to execute the entire decree orto resist the attempt of the other party to interfere with the jointright decreed in his favour. The abatement of an appeal meansnot only that the decree between the appellant, and the deceasedrespondent has become final, but also, as a necessary corollary, thatthe appellate Court cannot, in any way, modify that decree directlyor indirectly. The reason is plain. It is that in the absence of thelegal representatives of the deceased respondents, the appellateCourt cannot determine anything between the appellant and thelegal representatives which may affect the rights of the legalrepresentatives under the decree. It is immaterial that themodification which the Court will do is one to which exceptioncan or cannot be taken.”

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The attempt of the State to contend that the brothers had equalshare of land in the village records and therefore, the appeal should beproceeded with did not appeal to the court. This Court further proceededHto observe that the brother has made a 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 casewhich involved Order XXII Rule 4. Order XXII Rule 4 reads as follows:

“4. Procedure in case of death of one of several defendants or ofsole defendant -

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

(2) Any person so made a party may make any defenceappropriate to his character as legal representative of the deceaseddefendant.

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

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

13. The next decision we would notice is the decision in RamSarup vs. Munshi & Ors.1963 (3) SCR 858. The case involved thedeath of one of the respondents during the pendency of the appeal filedby the State. The question involved was whether the right of preemptionwould continue to be available despite the repeal of the Punjab Alienationof Land Act, 1900. In one of the civil appeals, the pre-emptors whoclaimed the right of pre-emption who were 4 in number, obtained a decreeagainst the vendees. The appellant vendees had purchased the propertyfor Rs. 22,750/-. The appellant Nos.1 and 2 paid one half amounting toRs.11,375/-. The other 3 appellants paid the other half. The sale deedshowed that it was not a case of sale of separate items in favour ofdeceased-appellant but of one entire set of properties enjoyed by two A

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Aset of vendees in equal share. Pending the appeal by the appellantsvendees, the first appellant died and it abated as against him. In this setof facts this Court proceeded to hold that the decree being a joint decreeand a part of the decree has become final by reason of the abatement,the entire appeal would abate. The reasoning was there could be nopartial pre-emption because pre-emption was the substitution of pre-Bemptors in place of the vendees and it was found that if the decree infavour of the pre-emptors in respect of the share of the deceased vendeeappellant had become final there would be two conflicting decrees if theappeal were to be allowed and the decree of pre-emption insofar asappellants 2 to 5 were concerned was interfered with. It must at onceCbe noticed that Order XXII Rule 3 provides for the converse of OrderXXII Rule 4. That is to say Order XXII Rule 3 deals with a case whereone or more plaintiffs or appellants or the sole plaintiff or sole appellantdies during the pendency of the suit or appeal. Order XXII Rule 4 onthe 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 theDappeal dies. In both these cases it must be noticed that it is a conditionprecedent for the provisions to apply that the right to sue does not surviveto the remaining plaintiffs/ appellants (Order XXII Rule 3) or theremaining one or two appellants and right to sue does not survive againstthe defendant or defendants in the suit or respondents in the appealEalone or the sole defendant or surviving defendants dies and the right tosue survives. It must be noted that Order XXII Rule 2 deals with asituation where there are more than one plaintiffs and defendants andany of them dies and the right to sue survives to the surviving plaintiff orplaintiffs alone or against the surviving defendant or defendants alone,the suit or the appeal shall be proceeded against at the instance of theFsurviving plaintiff or plaintiffs/appellant or appellants or against survivingdefendant or defendants in the suit/respondents in the appeal.

14. In Ram Sarup vs. Munshi & Ors.(supra), nine personsinstituted a suit for ejectment and recovery of rent against twodefendants. The suit was decreed. In an appeal by the defendants, theGdecree of the Trial Court was set aside against the second defendant.During the pendency of the second appeal filed by all the plaintiffs, oneof them died. His LRs were not brought on record and the appealabated as far as such appellant was concerned. The objection raised bythe respondents that the appeal could not be proceeded with as the appealHabated as a whole, was accepted. An attempt was made under Order

XXII Rule 2 by contending that the nine appellants constituted a JointHindu Family and on the death of one of the appellants, the right to suesurvived in favour of the remaining appellants, as at that time the HinduSuccession Act had not been passed, was repelled on facts by holdingthat the appellants did not constitute a Joint Hindu Family. Further attemptto draw support from Order XLI Rule 4, namely, that the appealproceeded on a ground common to all the plaintiffs and defendants, andany one of the plaintiffs /defendants may appeal from the whole decreeand the decree could be reversed or varied in favour of the plaintiffs ordefendants was not accepted as it was found that Order XLI Rule 4only enabled one of the plaintiffs/defendants to file an appeal and itwould not apply in a case where all the plaintiffs had filed the secondappeal. The Court took the view that the appeal abated as a whole as allthe appellants had a common right in getting an ejectment against thesecond defendant and such a decree was on a ground common to all ofthem. It was further found that the defendants could not be ejectedfrom the premises when he had a right to remain in occupation on thebasis of a decree holding that a deceased-appellant, one of the personshaving joint interest in letting out property could not have ejected him. Itwas further held that it was not possible for the defendant to continue astenant of one of the landlords and not as a tenant of the others when allof them had a joint right to eject or to have him as their tenant.

15. In the judgment of this Court in Harihar Prasad Singh andOthers vs. Balmiki Prasad Singh and Others 1975 (1) SCC 212, theissue involved was the acceptability of a custom set up by the plaintiffwas that they were Bhumidar Brahmins by caste and under which custommore distant heirs than the shastric heirs also joined the latter in successionof a separate male member dying without any issue and leaving anywidow. A preliminary objection was also raised that the appeal itselfabated under the following facts:

Plaintiff No.29 died in 1953. His widow and son were substituted.With the coming into force of the Hindu Succession Act, the shareof the widow in her husband’s estate became a full estate. Thewidow, in turn, died in 1967. She left behind her daughter and herson. The son had already been impleaded upon the death of hisfather. The decree it was pointed out was one and indivisible andthe whole appeal had abated, upon the widow dying not havingimpleaded her daughter, the whole appeal abated. This argumentwas repelled after referring to all the authorities. This Court in AB

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Harihar Prasad Singh and Others vs. Balmiki Prasad Singhand Others(Supra) took the view inter alia as follows:

“32. The important point to note about this litigation is thateach of the reversioners is entitled to his own specific share.He could have sued for his own share and got a decree for hisshare.That is why five title suits Nos.53 and 61 of 1934 and20, 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 filedby the first and second plaintiffs for their one-twelfth share.Thereafter many of the other reversioners who were originallyadded as defendants were transposed as plaintiffs. Thoughthe 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 legalrepresentatives are not brought on record the suit or the appealmight abate as far as he is concerned but not as regards theother plaintiffs or the appellants.”

16. The last judgment we would like to refer to is the judgmentrelied on by the appellants and that is the judgment of the ConstitutionBench in Sardar Amarjit Singh Kalra (Dead) by LRS. & Ors. vs.Pramod Gupta (Smt.)(Dead) by LRS. & Ors.2003 (3) SCC 272. Inthe said judgment the matter arose under the Land Acquisition Act. Thefacts set out indicate inter alia that a joint appeal was filed by a numberof proprietors. However, the court found that they had distinct andindependent claims. The three different categories of claimants beforethe Land Acquisition Collector were noted as follows:

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

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

ii) The other class of claims were from the Proprietors/coowners on the basis that the acquired land was not “land”as defined under Section 3(13) of the Delhi Land ReformsAct, since they were being used for non-agriculturalpurposes and therefore, they neither could be said to be“wasteland” nor could be held to have vested in the GaonSabha, for either of them to claim any title to the lands inquestion and, therefore, they continued to be proprietors ofthe soil and as such entitled to the compensation forthemselves.

iii) Yet another claim was from Smt. Gulab Sundari and hertransferees of portions of the rights over the land on theground that she was the Bhumidhar of the land measuringabout 4307 bighas and 18 biswas and those lands werepart of her bhumidhari-holding out of which she also claimedto have transferred rights in an extent of 3500 bighas ofundivided holding in favour of the other private respondentsclaimants.”

There were three sets of appeals. This Court proceeded to noticethe entire case law. Paragraph 25 and 26 of the said judgment is extractedhereinbelow:

“25.……….The claim of each one was in respect of hisdistinct, definite and separate share and their respective rightsare not interdependant but independent. Among themselves thereis no conflicting or overlapping interest and the grant of relief toone has no adverse impact on the other(s). The mere fact thatthere was no division by metes and bounds on state of ground is A

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no reason to treat it to be a joint right-indivisible in nature to beasserted or vindicated only by all of them joining together in thesame proceedings, in one capacity or the other. As a matter offact, separate claims seem to have been filed by them before theReference Court in respect of their own respective share. Evenif they have engaged a common counsel or even if they have filedone claim in respect of their specified separate share, it could nothave the effect of altering the nature of their claim or the characterof their right so as to make it an indivisible joint right. Though theReference Court has decided all such claims together, havingregard to the similarity or identical nature of issues arising forconsideration of the claims, in substance and reality the proceedingsmust be considered in law to be of multifarious claims disposed ofin a consolidated manner resulting in as many number of awardsof the Reference Court as there were claimants before it. Therewas no community of interest between them and that each one ofthem in vindicating their individual rights was not obliged to impleadthe other claimants of their shares in one common action/proceeding and the orders/judgment though passed in a consolidatedmanner, in law, amounts to as many orders or judgments as therewere claimants and, by no reason, can it be branded to be a jointand inseverable one. Similarity of the claims cannot be ajustification in law to treat them as a single and indivisible claimfor any or all purposes and such a thing cannot be legitimatelydone without sacrificing the substance to the form. The claim onbehalf of the respondents that the compensation awarded is of alump sum, though shares are divided, is belied by the schemeunderlying Sections 11, 18, 30 and 31 of the Act, and cannot becountenanced as of any merit. Against the Award of the ReferenceCourt in this case, it was possible and permissible in law for everyone of the appellants to file an appeal of his own separately inrespect of his share without any need or obligation to impleadevery other of the claimants like him, as party-respondent or asco-appellant, because there is no conflicting interest or claimsamongst them inter se. As such, the alleged and apprehendedfear about possible inconsistent or conflicting decrees resultingtherefrom if the appeals are proceeded with and disposed of onmerits has no basis in law nor is well founded on the facts and

circumstances of these cases. Even if the appellants succeed onmerits, dehors the fate of the deceased appellants the decreepassed cannot either be said to become ineffective or renderedincapable of successful execution. To surmise even then acontradictory decree coming into existence, is neither logical norreasonable nor acceptable by courts of Law. Otherwise, it wouldamount to applying the principle of vicarious liability to penalizesomeone for no fault of his and denial of one’s own right for themere default or refusal of the other(s) to join or contest likewisebefore the court. The fact that at a given point of time all of themjoined in one proceedings because one court in the hierarchy haschosen to club or combine all their individual and separate claimsfor the purpose of consideration on account of the similarity ofthe nature of their claims or that for the sake of convenience theyjoined together for asserting their respective, distinct andindependent claims or rights is no ground to destroy their individualright to seek remedies in respect of their respective claims. Incases of this nature, there is every possibility of one or the otheramong them subsequently reconciling themselves to their fate andsettle with their opponents or become averse to pursue the legalbattle forever so many reasons, as in the case on hand due todisinterestedness, indifference or lethargy and, therefore, theattitude, approach and resolve of one or the other should notbecome a disabling or disqualifying factor for others to vindicatetheir own individual rights without getting eclipsed or marred bythe action or inaction of the others……….”

“26. Laws of procedure are meant to regulate effectively, assistand aid the object of doing substantial and real justice and not toforeclose even an adjudication on merits of substantial rights ofcitizen under personal, property and other laws. Procedure hasalways been viewed as the handmaid of justice and not meant tohamper the cause of justice or sanctify miscarriage of justice. Acareful reading of the provisions contained in Order 22 CPC aswell as the subsequent amendments thereto would lend creditand support to the view that they were devised to ensure theircontinuation and culmination in an effective adjudication and notto retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and ABCDE

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independent rights to property or any claim remain intact and notlost 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 arigid matter of principle but must ever be viewed as a flexible toolof convenience in the administration of justice. The fact that theKhata was said to be joint is of no relevance, as long as each oneof them had their own independent, distinct and separate sharesin the property as found separately indicated in jamabandi itself ofthe shares of each of them distinctly……………”

Thus, the Court highlighted the need to apply laws of procedure ina manner so that substantial justice is facilitated. The Court further heldas follows:

“30. The question, therefore, as to when a proceeding beforethe Court becomes or is rendered impossible or possible to beproceeded with, after it had partially abated on account of thedeath of one or the other party on either side has been alwaysconsidered to depend upon the fact as to whether the decreeobtained is a joint decree or a severable one and thatin case of ajoint and inseverable decree if the appeal abated against one orthe other, the same cannot be proceeded with further for or againstthe remaining parties as well. If otherwise, the decree is a jointand several or separable one, being insubstance and reality acombination of many decrees, there can be no impediment for theproceedings being proceeded with among or against thoseremaining parties other than the deceased. As observed in NathuRam case (supra) itself, the Code does not itself provide for theabatement of the appeal against the other respondents even where,as against one such it has abated but it is only the courts whichhave held that in certain circumstances the appeal also would-abate against a corespondent as a result of abatement againstthe deceased respondent. The same would be the position of anappeal vis-a-vis the appellants, as in the other cases. Order 22Rule 4 also was considered not to provide for abatement of theappeal(s) against the co-respondents of the deceased respondentand it was specifically observed therein that to say that the appealsagainst them also abated in certain circumstances is not a correctstatement. It was held that the appeals against such other respondents cannot be proceeded against and, therefore, had tobe dismissed, in certain circumstances.”

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

(1) Wherever the plaintiffs or appellants or petitioners are foundto have distinct, separate and independent rights of their own andfor purpose of convenience or otherwise, joined together in a singlelitigation to vindicate their rights, the decree passed by the courtthereon is to be viewed in substance as the combination of severaldecrees in favour of one or the other parties and not as a joint andinseverable decree.The same would be the position in the caseof defendants or respondents having similar rights contesting theclaims against them.

(2) Whenever different and distinct claims of more than oneare sought to be vindicated in one single proceedings, as the onenow before us, under the Land Acquisition Act or in similar natureof proceedings and/or claims in assertion of individual rights ofparties are clubbed, consolidated and dealt with together by thecourts concerned and a single judgment or decree has been passed,it should be treated as a merecombination of several decrees infavour of or against one or more of the parties and not as joint andinseparable decrees.

(3) The mere fact that the claims or rights asserted or soughtto be vindicated by more than one are similar or identical in natureor by joining together of more than one of such claimants of aparticular nature, by itself would not be sufficient in law to treatthem as joint claims, so as to render the judgment or decree passedthereon a joint and inseverable one.

(4) The question as to whether in a given case the decree isjoint and inseverable or joint and severable or separable has to bedecided, for the purposes of abatement or dismissal of the entireappeal as not being properly and duly constituted or renderedincompetent for being further proceeded with, requires to bedetermined only with reference to the fact as to whether thejudgment/decree passed in the proceedings vis-a-vis the remainingparties would suffer the vice of contradictory or inconsistent A

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Adecrees. For that reason, a decree can be said to be contradictoryor inconsistent with another decree only when the two decreesare incapable of enforcement or would be mutuallyself-destructiveand that the enforcement of one would negate or render impossiblethe enforcement of the other.”

(Emphasis Supplied)

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17. Is this a case when the appellant and his brother were havingdistinct and independent claims and rights and for the sake of conveniencethey had joined as plaintiffs originally in the suit and as appellantssubsequently in the appeal? Is this a case where there is joint decree orCis it is a case where the decree is severable? Is it therefore a severabledecree or a combination of two decrees? Whether the decree if passedby the appellate court in favour of the appellant would result in a decreewhich is contradictory to the decree passed by the trial Court.

18. In this case, undoubtedly as we have noted the appellant andDhis late brother sued as plaintiffs for a declaration that the first defendantwas not the adopted son and he has no rights. They also sought aprohibitory injunction. The suit stood dismissed by trial court. Let ustake the converse position. Assuming that the suit was decreed by thetrial court and appeal was carried by the defendants, and pending theappeal by the defendants, if the late brother of the appellant had diedEand if the defendants had not impleaded the legal representatives of latebrother and the appeal abated as against him, would it then not open tothe appellant as respondent in the appeal to contend that if the appealwas to be allowed to proceed in the absence of the legal representativesof his late brother and succeed, there would be an inconsistent decree.FOn the one hand, there will be a decree by the trial Court declaring thatthe first defendant was not the adopted son and had no interest in theproperty qua the late brother of the appellant. On the other hand, theappellate court could be invited to pass a decree which should be to theeffect that the first defendant was found to be the adopted son and hadright and interest over the property and a declaration to that effect wouldGhave to be granted. Would not the appellate court then have to necessarilyhold though the decree in favour of the deceased brother of the appellanthas become final, and under it, a declaration is granted that the defendantNo.1 is not the adopted son and he has no right to claim the property andthere is an injunction against him that he is the adopted son opposed toHthe decree which has been passed by the trial court which has attained finality. We would think that the appellate court would indeed have torefuse to proceed with the appeal on the basis that allowing the appealby the defendants would lead to an appellate decree which is inconsistentwith the decree which has become final as against the deceased brotherof the appellant.

19. We would think that the situation cannot be any other different,when we contemplate the converse of the aforesaid scenario whichhappens to be the factual matrix obtaining in this case. The right whichwas set up by the appellant alongwith his late brother was joint. Theywere members of the joint Hindu family consisting of their late fatherand which consisted of late Govindareddi, their father Shriram Reddyand Basavareddi, who was none other than the husband of the seconddefendant. 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 theConstitution Bench under the land acquisition case. Therein, severalpersons came together and sought relief in one proceeding. We wouldthink that this is not the position in this case.

20. It may be true that if a separate suit had been filed by the latebrother and it had abated on his death, there will be no decree on meritsand the suit would have abated. No doubt, it could be argued that eventhough the appellant and his late brother set up the case of joint right, itwould only mean that they are co-owners of the property, and therefore,they had independent rights as co-owners which could be canvassed intwo different proceedings, and therefore, the decree of the trial courtdismissing the suit be treated as two different decrees - one decreeagainst the appellant and the other against his late brother. Even then,the decree, which the High court would be invited to pass, would becontradictory and inconsistent with the decree as against late brother ofthe 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 alsoattained finality between his late brother and the defendants. They aremutually irreconcilable, totally inconsistent. Laying one side by side, theonly impression would be that one is in the teeth of the other. In one, thesuit is dismissed whereas in the other, the suit would have been decreed.

22. The argument that in view of the order passed on 10/09/2001by which despite the death of late brother of the appellant, permission to A

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Aprosecute the appeal was granted by the court there would arise anestoppel against the order being passed holding that the appeal has abatedas a whole, cannot be accepted. The impact of death of the late brotherof the appellant qua the proceeding is one arising out of the incompatibilityof a decree which has become final with the decree which the appellantinvites the appellate court to pass. In such circumstances, the mere factBthat the appellant was permitted to prosecute the appeal by aninterlocutory order would not be sufficient to tide over the legal obstacleposed by the inconsistent decree which emerges as a result of the failureto substitute legal representative of the late brother and the abating ofthe appeal filed by his late brother. Consequently, we see no merit in theCappeal. It is accordingly dismissed.

Divya Pandey

Appeal dismissed.

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