SUNKARA LAKSHMINARASAMMA (D) BY LRS. versus SAGI SUBBA RAJU & OTHERS ETC. on 28 November 2018

ASUNKARA LAKSHMINARASAMMA (D) BY LRs.

v.

SAGI SUBBA RAJU & OTHERS ETC.

(Civil Appeal Nos. 4380-4382 of 2016)

B

NOVEMBER 28, 2018

[N. V. RAMANA, MOHAN M. SHANTANAGOUDARAND M. R. SHAH, JJ.]

Appeal – Maintainability of – When defendants were eitherdeleted from array of parties or dead and whose legalCrepresentatives had not been brought on record – Appellants-plaintiffs filed two suits for partition of properties (Schedule A andB), out which one was also for eviction of defendants Nos. 26 to125 & 127 – Will pertaining to Schedule A property was executedin favour of ‘V’ by one ‘SP’ (brother of V’s grandfather) – AnotherDWill pertaining to Schedule B property was executed in favour of‘V’ by his father (Plaintiff ‘L’) – Defendant Nos. 5 to 125 & 127who had purchased the Schedule B property from ‘V’, relied uponWill/bequest executed for benefit of ‘V’ – Suits for partition ofproperties were dismissed by the trial Court and confirmed by thefirst appellate Court and the High Court – One of the respondents,Enamely ‘S’ filed a suit for specific performance of an agreement ofsale of Schedule A property – The suit for specific performancewas ultimately decreed against the appellants – Appellants contendedthat ‘V’ didn’t have any right, title or interest over the suit propertiesto the full extent and the Courts below were not justified inconcluding that the bequests (Wills) relied upon by the defendantsFin respect of the properties in question were proved – Respondentscontended that appeals were not maintainable since a number ofdefendants against whom the relief was sought/claimed were eitherdeleted from the array of parties, or were dead – On appeal, held:All three Courts concurrently on facts have concluded that Wills forGbenefit of ‘V’ were proved and also, the reasons assigned andconclusions arrived at in respect of proof of both the Wills were justand proper – Since ‘V’ was the sole owner of the properties byvirtue of Wills, he had right to alienate the properties – DefendantsNos. 5 to 125 and 127 has purchased the properties for valuable H

consideration from ‘V’ – Courts below were justified in concludingthat sales made in favour of defendants Nos. 5 to 125 and 127 werejust and proper – Thus, there were no reasons to interfere with thefindings of the Courts below – Furthermore, ‘V’ the vendor of theproperties, had entered the witness box before the trial Court andsupported all his alienations in favour of the defendants – Therefore,the Division Bench of High Court rightly decided against theappellants and granted the decree for specific performance – Insofaras maintainability of these appeals are concerned, decree passedin favour of defendants who were either deleted or dead and whoselegal representatives had not been brought on record had attainedfinality – In case these appeals are allowed in respect of otherdefendants, the decree to be passed in these appeals would conflictwith decree already passed in favour of other defendants – Courtcannot be called upon to make two inconsistent decrees about samesubject matter – Thus, appeals not maintainable – Code of CivilProcedure, 1908 – Or. XXII, r.4.

Dismissing the appeals, the Court

Conclusion

Dismissing the appeals, the Court

HELD: 1. Exhibit B4, the Will pertains to Schedule Aproperty. The said Will was executed by ‘SP’, who was admittedlythe owner of the Schedule A properties. He had no issue. Hiswife also expired shortly after his death. The beneficiary underthe said Will was ‘V’. Exhibit B106, the Will pertains to ScheduleB property. The said Will was executed by ‘L’ (the father of ‘V’)in favour of his son ‘V’. ‘V’ became the owner of Schedule A andB properties, after the demise of ‘SP’ and ‘L’. All the three Courtsconcurrently on facts have concluded that both the Wills areproved. The findings of the validity of the Wills etc. have notbeen seriously disputed by the appellants. Even otherwise, ongoing through the judgments of the three Courts, the reasonsassigned and the conclusions arrived at in respect of proof ofboth the Wills are just and proper. Hence, no interference iscalled for. [Para 5][228-D, G-H]

2. Since ‘V’ was the sole owner of the properties by virtueof Exhibits B4 and B106 Wills, naturally he had the right toalienate the properties. Defendant Nos. 5 to 125 and 127 hadpurchased the properties for valuable consideration from ‘V’. The A

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Aalienations made in favour of these defendants/purchasers werenot questioned by the appellants in the two suits for partition.Be that as it may, since the sales made in favour of DefendantNos. 5 to 125 and 127 are just and proper and as they are bonafide purchasers for valuable consideration, no interference iscalled for. [Para 6][229-A-B]B

3. Since ‘V’ was the absolute owner of the propertiesincluding the property involved in the suit for specificperformance, he had the right to enter into an agreement of salealso. This property was bequeathed to ‘V’ under Exhibit B4 Willby ‘SP’. Hence, ‘V’ was the sole owner of the property.CConsequently, he had entered into an agreement of sale with ‘S’.As a matter of fact, ‘V’, the vendor of the properties, had enteredthe witness box before the trial Court and supported all hisalienations in favour of the defendants. Therefore, the DivisionBench has rightly concluded in favour of ‘S’ and against theDappellants and granted the decree for specific performance.[Para 7][229-D-E; 230-B]

4. Order 22 Rule 4, CPC lays down that where within thetime limited by law, no application is made to implead the legalrepresentatives of a deceased defendant, the suit shall abate asEagainst a deceased defendant. This rule does not provide that bythe omission to implead the legal representative of a defendant,the suit will abate as a whole. If the interests of the co-defendantsare separate, as in the case of co-owners, the suit will abate onlyas regards the particular interest of the deceased party. In such asituation, the question of the abatement of the appeal in its entiretyFthat has arisen in this case depends upon general principles. Ifthe case is of such a nature that the absence of the legalrepresentatives of the deceased respondent prevents the courtfrom hearing the appeal as against the other respondents, thenthe appeal abates in toto. Otherwise, the abatement takes placeGonly in respect of the interest of the respondent who has died.The test often adopted in such cases is whether in the event ofthe appeal being allowed as against the remaining respondentsthere would or would not be two contradictory decrees in thesame suit with respect to the same subject matter. The court H

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cannot be called upon to make two inconsistent decrees aboutthe same property, and in order to avoid conflicting decrees thecourt has no alternative but to dismiss the appeal as a whole. Ifon the other hand, the success of the appeal would not lead toconflicting decrees, then there is no valid reason why the courtshould not hear the appeal and adjudicate upon the disputebetween the parties. In the matter on hand, the absence of certaindefendants who have been deleted from the array of parties alongwith the absence of legal representatives of a number of deceaseddefendants will prevent the court from hearing the appeals asagainst the other defendants. Because in the event of theseappeals being allowed as against the remaining defendants, therewould be two contradictory decrees in the same suit in respect ofthe same subject matter. One decree would be in favour of thedefendants who are deleted or dead and whose legalrepresentatives have not been brought on record; while the otherdecree would be against the defendants who are still on record inrespect of the same subject matter. The Court cannot be calledupon to make two inconsistent decrees about the samesubject matter. In order to avoid conflicting decrees, the Courthas no alternative but to dismiss the appeals in their entirety.[Para 9][230-F-H; 231-A-G]

Shahazada Bi v. Halimabi, (2004) 7 SCC 354: [2004]3 Suppl. SCR 222 – relied on.

Case Law Reference

[2004] 3 Suppl. SCR 222relied onPara 7

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4380-4382 of 2016.

From the Judgment and Order dated 11.09.2003 of the High Courtof Andhra Pradesh at Hyderabad in Letters Patent Appeal No. 323 of1992 and Appeal Nos. 2959 and 2960 of 2001.

A. Subba Rao, K. L. D. S. Vinober, Advs. for the Appellants.

Thomas P. Joseph, Sr. Adv., V. N. Raghupathy, R. V.Kameshwaran, Mullapudi Rambabu, Ajay Choudhary, V. Sridhar Reddy,Abhijit Sengupta, Advs. for the Respondents.

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AThe Judgment of the Court was delivered byMOHAN M. SHANTANAGOUDAR, J.

1. These appeals are directed against the common judgment inLetters Patent Appeal No. 323 of 1992 and Appeal Nos. 2959 and 2960of 2001 dated 11 September, 2003 passed by the High Court of JudicatureBof Andhra Pradesh at Hyderabad. The appellants herein were theplaintiffs in O.S. No. 98 of 1984 on the file of the Subordinate Judge,Bhimavaram (formerly O.P. No.124/1980), and O.S. No. 97 of 1984 onthe file of the Subordinate Judge, Bhimavaram (formerly O.P. No.10/1982). They were the defendants in O.S. No. 72 of 1983 on the file ofCthe Subordinate Judge, Bhimavaram (formerly O.P. No.32/1978 on thefile of the Subordinate Judge, Narsapur).

2. O.S. No. 98 of 1984 was filed for partition of Schedule Aproperty against Defendant Nos. 5 to 25. In this suit, only one alienationmade by Veeraswamy (the plaintiff Lakshminarasamma’s son) wasDassailed, though Veeraswamy had alienated various other propertiesthrough different sale deeds falling under Schedule A. O.S. No. 97 of1984 was filed for partition of Schedule A and B properties as well asfor eviction of Defendant Nos. 26 to 125 and 127 from the said properties.O.S. No. 72 of 1983 was filed by one Sagi Subba Raju (one of therespondents in these appeals) for specific performance of an agreementEof sale dated 19.09.1974 executed by the late Veeraswamy covering anextent of 3 acres 56 cents in Revenue Survey Nos. 347 and 347/3 ofBhimavaram village.

O.S. Nos. 97 of 1984 and 98 of 1984 (for partition of Schedule Aand B properties) were dismissed by the trial Court and confirmed byFthe first appellate Court. O.S. No. 72 of 1983 (suit for specificperformance) was decreed partly, directing sale of 1/3[rd] of the propertyin favour of the plaintiff Sagi Subba Raju, and such decree was confirmedby the first appellate Court. Feeling aggrieved by these judgments anddecrees, the unsuccessful appellants filed appeals before the High Court.GSo also, Sagi Subba Raju, who was to get 1/3[rd] of the property in the suitfor specific performance filed L.P.A. No. 323 of 1992 before the HighCourt. All these appeals were heard together by the High Court anddecided against the appellants herein, which means that the judgmentsand decrees of dismissal passed in O.S. Nos. 97 & 98 of 1984 wereconfirmed by the Division Bench of the High Court also. Thus, there H

are concurrent findings of three Courts in respect of those two suitsfiled by appellants for partition against the appellants herein. In respectof O.S. No. 72 of 1983 also, the Division Bench proceeded to grant adecree, as prayed for, in favour of Sagi Subba Raju and against theappellants herein. In other words, the suit for specific performance alsowas decreed fully against the appellants herein. Hence, the appellantsare before this Court.

3. Shri A. Subba Rao, learned advocate appearing on behalf ofthe appellants, taking us through the material on record, submits that theCourts below were not justified in concluding that the bequests (Wills)relied upon by the defendants, i.e. Will dated 14.08.1932 (Exhibit B4/Ex.P1) in respect of Schedule A property and the Will dated 05.10.1968(Exhibit B106/Ex. P2) in respect of Schedule B property executed forthe benefit of Veeraswamy, were proved; that the plaintiffs have got 2/3[rd] share in the suit properties and therefore the bequests (Exhibits B4and B106) will not confer any right to the beneficiary in excess ofremaining 1/3[rd] of the properties. Lastly, he submitted that the DefendantNos. 5 to 125 & 127, being the purchasers of the properties fromVeeraswamy (in whose favour the Wills were executed), are liable to beevicted inasmuch as Veeraswamy did not have any right, title or interestover the suit properties to the full extent, on the other hand, Veeraswamyhad only 1/3[rd] share in the suit properties.

4. Per contra, learned counsel appearing on behalf of therespondents contends that the judgment of the Division Bench of theHigh Court is just and proper and needs no interference. The trial Court,the first appellate Court and the Division Bench of the High Court haveheld that Exhibit B4 and Exhibit B106 are proved in accordance withlaw and consequently Veeraswamy became the owner of the propertyfrom the said Wills. He further submitted that the defendants/purchasershave been in peaceful possession of the suit properties for more than 40to 50 years and some of the defendants have even alienated the propertiesto third parties. Lastly, he submitted that the appeals are not maintainablesince a number of defendants (purchasers from Veeraswamy) weredeleted from the array of parties by the appellants herein, and some ofthe defendants have died during the pendency of the suits as well as thefirst appeals and second appeals and their legal representatives werenot brought on record by the appellants herein. Even before this Court,some of the defendants/respondents have expired. The appellants have A

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228 SUPREME COURT REPORTS [2018] 14 S.C.R.

Anot bothered to bring on record the legal representatives of such deceaseddefendants. As a result, the decree passed in favour of the deceasedand deleted defendants holding that Veeraswamy had the right to sellthe property has attained finality, and consequently the sales made infavour of such defendants have attained finality too. In other words, thevalidity of the Wills as well as that of the sale deeds stands confirmed inBrespect of the deceased/deleted defendants and therefore these appeals,which are pending consideration in respect of other defendants beforethis Court, are liable to be dismissed in view of the fact that in case anyorder is passed adverse to the interest of the respondents herein/remainingdefendants, the same would be conflicting with the judgments and decreesCwhich are already confirmed as against the deceased/deleted defendants.5. Exhibit B4, the Will dated 14.08.1932, pertains to Schedule Aproperty. The said Will was executed by Sunkara Padmanabhudu, whowas admittedly the owner of the Schedule A properties. He had noissue. His wife also expired shortly after his death. The beneficiaryDunder the said Will was Veeraswamy, who is none other than the grandsonof Sunkara Venkataramaiah (the brother of Sunkara Padmanabhudu).Exhibit B106, the Will dated 05.10.1968 pertains to Schedule B property.The said Will was executed by Laxmipathi (the father of Veeraswamy)in favour of his son Veeraswamy. Sunkara Padmanabhudu expired on20.08.1932 and Laxmipathi died on 21.01.1969. Thus, VeeraswamyEbecame the owner of Schedule A and B properties, after the demise ofSunkara Padmanabhudu and Laxmipathi. There is nothing on record toshow that the properties in Schedule B were the joint properties ofLaxmipathi and his son. So also, it is not established by the plaintiffs thatSchedule B properties were available for partition. There are concurrentFfindings of three Courts on the said point against the appellants/plaintiffsin partition suits. The plaintiff Laxminarasamma is the second wife ofLaxmipathi, who has not specifically questioned the alienations made byher son Veeraswamy in favour of Defendant Nos. 5 to 125 by filingO.S. Nos. 97 & 98 of 1984. There is no prayer by her for getting thesale deeds cancelled. All the three Courts concurrently on facts haveGconcluded that both the Wills are proved. Even before us, the findings ofthe validity of the Wills etc. have not been seriously disputed by theappellants. Even otherwise, on going through the judgments of the threeCourts, we find that the reasons assigned and the conclusions arrived atin respect of proof of both the Wills are just and proper. Hence, noHinterference is called for.

6. Since Veeraswamy was the sole owner of the properties byvirtue of Exhibits B4 and B106 Wills, naturally he had the right to alienatethe properties. Defendant Nos. 5 to 125 and 127 had purchased theproperties for valuable consideration from Veeraswamy. As mentionedsupra, the alienations made in favour of these defendants/purchaserswere not questioned by the appellants in the aforementioned two suitsfor partition. Be that as it may, since we find that the Courts below arejustified in concluding that the sales made in favour of Defendant Nos. 5to 125 and 127 are just and proper and as they are bona fide purchasersfor valuable consideration, no interference is called for.

7. Shri A. Subba Rao, learned counsel for the appellants washowever forceful in his arguments, insofar as the suit for specificperformance is concerned. According to him, the appellants herein(defendants in the suit for specific performance) would be put to hardshipif the decree for specific performance is confirmed, inasmuch as therehas been a huge escalation in the price of the properties since theagreement of sale. Such plea of escalation in price cannot be acceptedin view of the fact that the appellants in the first instance do not have theright to question the agreement of sale. As mentioned supra, sinceVeeraswamy was the absolute owner of the properties including theproperty involved in the suit for specific performance, he had the right toenter into an agreement of sale also. This property was bequeathed toVeeraswamy under Exhibit B4 Will by Padmanabhudu. Hence,Veeraswamy was the sole owner of the property. Consequently, he hadentered into an agreement of sale with Sagi Subba Raju, as far back ason 19.09.1974. The suit was filed in the year 1978, which was latertransferred to another Court and the same was re-numbered as O.S.No. 72 of 1983. Since 1978, this litigation is being fought by the prospectivevendee. The property of about three and half acres was agreed to besold by Veeraswamy in favour of the prospective vendee in the year1974 for a sum of Rs.51,000/. Such price was agreed to between thevendor as well as the prospective vendee. This Court cannot imaginethe value of the property as it stood in the year 1974 in the said area, i.e.at Bhimavaram village in Andhra Pradesh. Be that as it may, we findthat hardship was neither pleaded nor proved by the appellants hereinbefore the trial Court. No issue was raised relating to hardship beforethe trial Court. A plea which was not urged before the trial Court cannotbe allowed to be raised for the first time before the appellate Courts.Moreover, mere escalation of price is no ground for interference at this AB

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Astage (see the judgment of this Court in the case of Narinderjit Singhvs. North Star Estate Promoters Limited, (2012) 5 SCC 712). Addedto it, as mentioned supra, the appellants do not have the locus standi toquestion the judgment of the Division Bench since they are not the ownersof the property. As a matter of fact, Veeraswamy, the vendor of theproperties, had entered the witness box before the trial Court andBsupported all his alienations in favour of the defendants. Therefore, inour considered opinion, the Division Bench has rightly concluded in favourof Sagi Subba Raju and against the appellants and granted the decreefor specific performance.

8. In any event, Shri Thomas P. Joseph, learned senior advocateCappearing on behalf of the respondents is justified in contending thatthese appeals are not maintainable since a number of defendants againstwhom the relief is sought/claimed have either been deleted from thearray of parties, or are dead. The legal representatives of such deceaseddefendants have not been brought on record. Even before this Court,DRespondent No.7 (D8), Respondent No.8 (D9), Respondent No.9 (D10)and Respondent No.11 (D13) in Civil Appeal No. 4382/2016 @ SLP(C)No. 20376/2004 have died. Their legal representatives have also notbeen brought on record. It is relevant to note here itself that DefendantNos. 4, 6, 36, 50, 54, 58, 67, 69, 73, 77, 82, 92, 93, 113, 120 and 127expired during the pendency of the matter before the trial Court in O.S.ENo. 97 of 1984. So also, Defendant Nos. 20, 53, 64 and 118 have alsodied and their legal representatives have also not been brought on record.

9. Order 22 Rule 4, CPC lays down that where within the timelimited by law, no application is made to implead the legal representativesof a deceased defendant, the suit shall abate as against a deceasedFdefendant. This rule does not provide that by the omission to impleadthe legal representative of a defendant, the suit will abate as a whole. Ifthe interests of the co-defendants are separate, as in the case of co-owners, the suit will abate only as regards the particular interest of thedeceased party. In such a situation, the question of the abatement of theGappeal in its entirety that has arisen in this case depends upon generalprinciples. If the case is of such a nature that the absence of the legalrepresentatives of the deceased respondent prevents the court fromhearing the appeal as against the other respondents, then the appealabates in toto. Otherwise, the abatement takes place only in respect ofthe interest of the respondent who has died. The test often adopted inH

such cases is whether in the event of the appeal being allowed as againstthe remaining respondents there would or would not be two contradictorydecrees in the same suit with respect to the same subject matter. Thecourt cannot be called upon to make two inconsistent decrees about thesame property, and in order to avoid conflicting decrees the court has noalternative but to dismiss the appeal as a whole. If on the other hand,the success of the appeal would not lead to conflicting decrees, thenthere is no valid reason why the court should not hear the appeal andadjudicate upon the dispute between the parties. In the matter on hand,the absence of certain defendants who have been deleted from the arrayof parties along with the absence of legal representatives of a number ofdeceased defendants will prevent the court from hearing the appeals asagainst the other defendants. We say so because in the event of theseappeals being allowed as against the remaining defendants, there wouldbe two contradictory decrees in the same suit in respect of the samesubject matter. One decree would be in favour of the defendants whoare deleted or dead and whose legal representatives have not been broughton record; while the other decree would be against the defendants whoare still on record in respect of the same subject matter. The subjectmatter in the suit is the validity of the two Wills. The Courts including theDivision Bench of the High Court have consistently held that the twoWills are proved, and thus Veeraswamy being the beneficiary under thetwo Wills had become the absolute owner of the suit properties in question.Such decree has attained finality in favour of the defendants who areeither deleted or dead and whose legal representatives have not beenbrought on record. In case these appeals are allowed in respect of theother defendants, the decree to be passed by this Court in these appealswould definitely conflict with the decree already passed in favour of theother defendants. As mentioned supra, the Court cannot be called uponto make two inconsistent decrees about the same subject matter. Inorder to avoid conflicting decrees, the Court has no alternative but todismiss the appeals in their entirety (see the judgment of this Court in thecase of Shahazada Bi vs. Halimabi, (2004) 7 SCC 354).

10. In view of the above, the appeals fail not only on the ground ofnon-maintainability, but also on merits, and are dismissed.

Ankit Gyan

Appeals dismissed.

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