Patna High Court
Ram Saran Ahir And Ors. vs Prithvi Nath Singh And Anr. on 13 April, 1951
Equivalent citations: AIR1952PAT267, AIR 1952 PATNA 267, ILR 30 PAT 892
JUDGMENT Chatterji, J.
1. Two plaintiffs, Ramdeo Singh and Prithwi Nath Singh, who were cousins and members of a joint Mitakshara family, instituted a suit for declaration of title and recovery of possession in respect of certain plots of land with a house standing thereon. The suit was decreed in full by the trial Court. The contesting defendants then preferred an appeal to the District Court in which Ramdeo and Prithwi Nath were impleaded as respondents 1 and 2. Notices were served on them and both of them appeared, as the order-sheet shows, by a vaklatnama on the 30th January, 1948. Ramdeo Singh, however, died near about that time. But the fact of his death was not brought to the notice of the Court and it proceeded to decide the appeal in ignorance of his death. Eventually, on 15th September 1948, it allowed the appeal in part and modified the decree of the trial Court.
2. From the appellate decree Prithwi Nath alone preferred a second appeal to this Court. Along with the memorandum of appeal he filed an affidavit sworn by himself in which he stated that Ramedeo Singh had died on the 1st of January 1948. In support of his affidavit he also filed a certified copy of the death register. At the hearing of the second appeal, the point argued on behalf of the appellant there was that the appeal in the lower appellate Court could not proceed after it had abated as against the respondent Ramdeo Singh, who was a member of the joint family with the surviving respondent Prithwi Nath Singh. Sinha, J., who heard the appeal gave effect to this contention, and he disposed of the appeal in these terms:
"This appeal is, therefore, allowed, the judgment and decree passed by the lower appellate Court are set aside and the decree passed by the trial Court restored with costs throughout."
From his decision the defendants have preferred this Letters Patent Appeal.
3. It is necessary to mention here that in the second appeal a counter-affidavit was filed on behalf of the respondent, which was in substance an application for setting aside the abatement of the appeal in the lower appellate Court. With regard to this counter-affidavit, Sinha, J stated:
"A counter-affidavit is filed in this Court to the effect that the appellants in the lower appellate Court were not aware of the death of Ramdeo. That question has not been investigated and need not be investigated at this stage because this Court cannot set aside the abatement which occurred in the Court below."
4. The question for consideration in the present appeal is whether, in the circumstances, Sinha, J., was justified, not only in setting aside the decree of the lower appellate Court, but in restoring the decree of the trial Court. The position is that after the death of Ramdeo, without his legal representatives being brought on the record within the prescribed time, the appeal abated as against him. As he was a member of a joint family with the surviving respondent Prithwi Nath Singh, the appeal could not proceed, because the result would be that in case the appeal was allowed there would be two inconsistent decrees. In fact, that is the view on which Sinha, J., set aside the decree of the lower appellate Court. The result of the abatement of the appeal as against Ramdeo Singh was that the appeal could not proceed. The defendants' case is that they were never aware of the death of Ramdeo and they came to know of it only after the institution of the second appeal. If that was so, they could not certainly file an application for setting aside the abatement in the Court of appeal below. By the time they came to know of the death of Ramdeo, the second appeal had already been filed in this Court, and they presented an application in this Court in the second appeal for setting aside the abatement. But the proper Court to deal with the application for setting aside the abatement was the Court of Appeal below.
5. In 'AMARSANGJI INDBASANGJI v. DESAI UMED', AIR (12) 1925 Bom 290, the appellant in the lower appellate Court died, but that Court proceeded to dispose of the appeal in ignorance of his death. In second appeal an application for setting aside the abatement was filed. The High Court held that the decree was a nullity and remanded the case to the lower appellate Court to deal with the application for setting aside the abatement.
6. In 'NABA KUMAB v. PRAFULLA CHANDRA', 51 Cal W N 654, a Single Judge of the Calcutta High Court held in similar circumstances that the High Court itself wag competent to deal with the application for setting aside the abatement. As at present advised, I am not prepared to go so far. In my opinion, the view taken by the Bombay. High Court in the above case was correct.
7. Mr. Kailash Rai, on behalf of the respondent, wanted to argue that the appellants had knowledge of the death of Ramdeo. But this is a matter to be dealt with by the Court of Appeal below, while considering the application for setting aside the abatement. It is, however, in be observed that from the records it appears that different dates of death of Ramdeo were given in different affidavits. In the affidavit filed by the appellants in the Second Appeal the date of death was given as 1st of January 1938, although from the older-sheet of the lower appellate Court it appears that Ramdeo and Prithwi Nath appeared by a vaklatnama on the 30th January 1948. In some other affidavit, it appears, the date of death was given as 29th January 1948. It is stated that that affidavit was sworn by the widow of Ramdeo.
8. If, in fact, the defendants were not aware of the death of Ramdeo until after the filing of the Second Appeal, it will be, in my opinion, most unjust if investigation in the matter is shut out. If the decision of Sinha, J., were to stand, such investigation would be completely shut out. The proper course, therefore, would be to allow the appeal and set aside the decision of Sinha, J., and send the application filed before him for setting aside the abatement to the Court of appeal below for disposal according to law.
9. I would, therefore, allow the appeal and set aside the decision of Sinha, J., and remand the erase to the lower appellate Court for disposal according to law in the light of the observations made above. Costs will abide the result.
Lakshmikanta Jha, C.J.
10. I agree.