Rajasthan High Court - Jaipur
Chander vs Cheenta Ram And Others on 21 August, 2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR *** O R D E R. *** S.B. CIVIL REVISION PETITION NO. 4/2012 Chander (deceased) represented by Mangal Ram Vs. Cheenta Ram (deceased) represented by Dhanpal & ors. DATE OF ORDER : 21/08/2013 HON'BLE MR. JUSTICE J.K. RANKA *** Mr. LL Gupta, for the petitioner. Mr. Aatish Jain, for the respondents.
REPORTABLE
1. Instant revision petition is directed against the order dt.11/10/2011 passed by the Additional District Judge, Laxmangarh, District (hereinafter referred as 'Lower Appellate Court) in Civil Misc. Appeal No.2/2006 dismissing the appeal of the defendant-petitioner and upholding the order dt.19/12/2005 of partial abatement passed by the Additional Civil Judge, Laxmangarh (Senior Division) (hereinafter referred as 'Trial Court') in Civil Suit No.39/2003, titled as Cheenta Ram Vs. Bhamlaya Ram and others.
2. Brief facts of the case are that the plaintiffs-Cheenta Ram, Ramji Lal and Gyarsa filed a suit for declaration against one Bhamlaya Ram and Chander (defendants No.1 & 2) respectively seeking a declaration that the will dt.28/11/1997, alleged to be executed by one Sukh Pal, was void and ineffective vis-a-vis plaintiffs-respondents. During pendency of the suit, one of the defendant's namely; Bhamlaya died, and whereupon the plaintiffs-respondents moved an application under Order 22 Rule 4 CPC alongwith Section 5 of the Limitation Act for bringing the legal heirs of Bhamlaya Ram on record. The trial court refused to condone the delay in filing the application for substitution of LR's of Bhamlaya Ram but held by order dt.19/12/2005 that the suit did not abate in toto but only to the extent of the deceased Bhamlaya Ram.
3- This order of partial abatement was challenged by the other defendant namely; Chander before the Lower Appellate Court and the Lower Appellate Court vide order dt.11/10/2011 dismissed the appeal and upheld the order of partial abatement passed by the Trial Court. It is this order dt.11/10/2011, affirming the order dt.19/12/2005, which is challenged by the defendant-petitioner-Chander (since deceased and represented by his legal representative Mangal Ram) by way of this instant revision petition.
4. Mr.LL Gupta, learned counsel for the defendant-petitioner vehemently contended that the lower appellate court as well as the trial court committed serious jurisdictional error in concluding that the suit had become partially abated only to the extent of the defendant-Bhamlaya Ram and not against the other defendant-Chander, the petitioner herein. He contended that both the defendants based their defence against the suit of the plaintiff upon the Will dt.28/11/1997 of Sukh pal and the Will stood upheld by virtue of abatement of the suit against Bhamlaya Ram, consequently, all the defendants were jointly entitled to the property covered under the will. The relief, being joint and inseparable, and as such, the suit stood abated as against all the defendants. Counsel for the defendant-petitioner relied upon judgments in the case of Budh Ram & ors. Vs. Bansi & ors., reported in 2011 CDR 236(SC); Amar Singh and others Vs. Lal Singh and others, reported in (1997)11 SCC 570 and the case of Babu Sukhram Singh Vs. Ram Dular Singh and others, reported in AIR 1973 (SC) 204.
5. Per-contra, Mr. Aatish Jain, counsel for the plaintiffs-respondents, justifying the impugned orders, contended that there was no jurisdictional error committed by the courts below and the order of abatement against one defendant-Bhamlaya, did not have the effect of rendering the suit abated in toto for the claim of both the defendants were distinctive, separate and independent. Counsel for the plaintiffs-respondents submits that the revision petition is not maintainable.
6. Heard and meticulously examined the contention advanced by the learned counsel for the rival parties. Before proceeding further, it would be fruitful to refer to some judicial pronouncements by which the matter of abatement of a suit/appeal has been dealt with.
7. In the case of The State of Punjab Vs. Nathu Ram, reported in 1962(2) SCR 636, it was held as under:-
The Punjab Government acquired on lease certain parcels of land belonging to Labhu Ram and Nathu Ram for military purposes under the Defence of India Act, 1939. The brothers refused to accept the compensation offered and applied for reference to an Arbitrator who passed an award ordering the payment of an amount higher than what was offered by the collector and further directed the payment of certain amount on account of Income Tax which would be paid on the compensation received. An appeal was filed by the State Government before the High Court and during the pendency of the appeal, Labhu Ram, one of the respondents, died. The High Court, while holding the appeal to have abated as against Labhu Ram, further held its effect to be the dismissal of the appeal against Nathu Ram also. The cross-objections also were dismissed. On a certificate being granted, the matter came up on appeal before the Apex Court. The Apex court while adverting to Order 22, Rule 4, CPC, observed that the code does not provide for the abatement of the appeal against the other respondents, though courts at times 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. Indicating that it would be incorrect to state that the appeal abated in such circumstances, Apex court observed that the appeal in certain circumstances even against the respondent other than the deceased, would be rendered not possible to be proceeded with further and, therefore, the court would refuse to deal with the appeal further and dismiss it. Apex Court, proceeding further observed as follows:
"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 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 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.
8. In the case of Ram Swarup Vs. Munshi & Ors, reported in 1963(3) SCR 858, it was held as under:-
That was a case wherein the owner of certain agricultural lands in Punjab sold the same to one of the respondents on 12.12.1957 and the son of the vendor claiming to be entitled to a right of pre-emption instituted a suit against the purchaser relying upon Section 15(a) of the Punjab Pre-emption Act, 1913. The suit came to be decreed by the trial court and affirmed by the first appellate Court as well as the High Court. The matter was pursued on appeal before this (Apex) Court by the appellants who were five in number falling in two groups, the 1st and 2nd appellants, who are brothers, and appellants Nos. 3, 4 & 5, the other. During the pendency of the said appeal the 1st appellant died on 18.5.1960 leaving a widow, four daughters and a son, as his heirs. No application was made to bring on record those legal representatives but the appellant preferred to proceed with the appeal on behalf of the remaining four appellants. The respondents raised a plea to dismiss the appeal, in entirety, as incompetent without the legal representatives of the 1st appellant on record. This was met by the counsel for the appellants, contending that since the interest of the deceased was distinct and separate from that of the others whatever might be the position as to the share of the deceased and partial abatement due to his death, the same would not affect the continuance of the appeal by the surviving appellants as regards their share in the property. In rejecting the plea on behalf of the surviving appellants, (Apex) Court held as hereunder:
"An English translation of the deed of sale has now been produced before us and a perusal of it indicates that the submission made on behalf of the appellants is not sustainable. The consideration for the sale is a sum of Rs. 22,750/- and the conveyance recites that Mehar Singh and the second appellant had paid one half amounting to Rs. 11,375/- while the other three appellants had paid the other half. It is therefore not a case of a sale of any separated item of property in favour of the deceased-appellant but of one entire set of properties to be enjoyed by two sets of vendees in equal shares. It is clear law that there can be no partial pre-emption because pre-emption is the substitution of the preemptor in place of the vendee and if the decree in favour of the preemptor in respect of the share of the deceased Mehar Singh has become final it is manifest that there would be two conflicting decrees if the appeal should be allowed and a decree for pre-emption insofar as appellants 2 to 5 are concerned is interfered with. Where a decree is a joint one and a part of the decree has become final by reason of abatement, the entire appeal must be held to be abated. It is not necessary to cite authority for so obvious a position but we might refer to the decision of this court in Jhanda Singh v. Gurmukh Singh (deceased) civil Appeal No. 344 of 1956, decided on April 10, 1962. The result is that the appeal fails as having abated and is dismissed with costs."
9. In the case of Harihar Prasad Singh & Others Vs. Balmiki Prasad Singh and Others, reported in 1975(2)SCR 932, it was held as under:-
The suit therein came to be filed by the plaintiffs claiming to succeed to the estate of one R, a Bhumihar Brahmin on the basis of a special custom of the family to which the parties belonged, though under the ordinary Hindu Law they would not be entitled to succeed to the estate of R being related to him in distant degree. The custom was sought to be substantiated by proving 52 instances of its observance. The trial court decreed the suit holding the custom to be in force on the proof of 49 such instances. The defendants filed three appeals getting themselves divided into three groups. One of the respondents in one of the three appeals, who was not arrayed as a respondent in the other appeals, died and his legal representatives were not brought on record. The High Court differed and reversed the decree on the view that none of the instances claimed were proved. The matter was taken before this Court on appeal by filing three appeals. The objection taken on behalf of the respondents was that the High Court should have dismissed the appeal on account of the fact that though when plaintiff No. 29 died in 1958 his wife and son were substituted in his place on 12.8.1953, when the said widow died on 1.11.1967, leaving behind a son (already a party) and a daughter the counsel sought for striking of the name of the deceased since her son was already on record and there was no need to bring any other legal representatives and the appeal can be proceeded with on that basis without impleading the daughter. When the respondents made an application stating that the appeal abated in the absence of all legal representatives of the deceased, an application came to be filed to implead the daughter also, but the same was rejected as belated and that the effect of the said order will be considered at the time of final hearing of the appeals. Finally, the other appeals were held not to abate merely because the Trial Court decree was one. Apex Court, while dealing with such a situation, held as follows:
"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 1st and 2nd plaintiffs for their 1/12th share. Thereafter many of the other reversioners who were originally added as defendants were transposed as plaintiffs. Though the 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. Furthermore, the principle that applies to this case is whether the estate of the deceased appellant or respondent is represented. This is not a case where no legal representative of Manmohini was on record.
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As we have already pointed out, in this case each one of the plaintiffs could have filed a suit for his share of Ramdhan Singh's estate. The fact that all the reversioners joined together as plaintiffs and filed one suit does not mean that if for one reason or other the suit of one of them fails or abates the suit of the others fails or abates. The decree is in substance the combination of several decrees in favour of several plaintiffs. If in an appeal against the decree one of the plaintiffs is not added as a respondent, it only means that the decree in his favour cannot be set aside or modified even if the appeal succeeds against other plaintiff in respect of their interest. There would in that case be no conflict between the decrees as the decree is a combination of many decrees. In other words the result of the failure to add Nirsu Prasad Singh as a respondent in F.A. 332 and F.A. 333 would be that the decree granted in his favour by the Subordinate Judge would stand but not the decrees granted in favour of the other plaintiffs. They can be reversed in those appeals. There was no such difficulty in F.A. No.326 and in that appeal the decree granted in favour of Nirsu Prasad Prasad Singh as well as in favour of other plaintiffs could have been reversed. This is not a case where a party who is aggrieved by a decree fails to file an appeal within the time allowed by law and should not, therefore, be granted relief under Order, 41, Rule 33."
10. The legal proposition, which emerges from the above referred case laws, can be summarized, as when the relief sought in a suit/appeal against the defendants/respondents is joint and inseparable in contradistinction to being distinct, separate and independent as against each of the defendants/respondents, and the suit/appeal abates against one of the defendants/respondents and such order attains finality, the suit/appeal abates in toto and not only against such deceased-defendant/respondent. Whether the relief sought is joint or inseparable is to be gauzed from the assessment of the facts and circumstances to each particular case. What are these circumstances leading to total abatement of a lis cannot be exhaustively enumerated and no hard and fast rule of invariable application can be devised. It is to be adjudged in each case depending upon the nature/source of rights, the cause of action, the manner they were asserted by the parties themselves and the contradictory nature of decrees, impossible of execution likely to result when considered differently. No standardized formula can be evolved and conclusion is dependent on the peculiar nature of the case coming for adjudication/determination.
11. Testing the instant case in the light of the above legal principles, enunciated by the Hon'ble Apex Court, it emerges that the plaintiffs-Cheenta Ram, Ramji Lal and Gyarsa, on or about 14/08/2001, had filed a suit for declaration that the Will dt.28/11/1997, allegedly executed by one Sukhpal, jointly in favour of the defendants-Bhamlaya and Chander, was void and ineffective vis-a-vis the plaintiffs. In the suit Bhamlaya died on 28/03/2004 and the application, filed on 29/09/2004 for bringing his legal heirs on record, came to be rejected vide order dt.19/12/2005 and this order has attained finality. The plaintiffs-respondents have not assailed this order in higher forums. Thus, the suit has abated against the legal heirs of the deceased Bhamlaya and this position is not controverted by the plaintiffs-respondents. It was not the plaintiffs who challenged the order dt.19/12/2005 of partial abatement of the trial court, rather it was the defendant-Chander, the petitioner herein, who assailed this order of the trial court dt.19/12/2005 before the lower appellate court. No cross appeal was preferred by the plaintiffs challenging the order of the trial court, that the order of abatement qua the defendant-Bhamlaya was bad in law and their application under Order 22 Rule 4 CPC read with Section 5 of the Limitation for bringing the legal heirs of Bhamlaya on record ought to be allowed. In absence of any challenge of the order of the trial court dt.19/12/2005 from the plaintiffs' side, this Court cannot go behind the order, rather this Court has only to reach at a conclusion, as to whether the abatement qua Bhamlaya resulted into total abatement of the suit or not. In this regard, it is pertinent to mention that both Bhamlaya and Chander were joint beneficiary of a Will dt.28/11/1997 allegedly executed by Sukh Pal. The property is jointly bequeathed to both of them through the will. Their interests in the suit property are not specified or distinct rather the foundation of such right/interest is a common single document i.e. the will dt.28/11/1997. Both derive their respective right from this one and single document i.e. the Will of Sukh Pal dt.28/11/1997. If the suit is held to be abated only to the extent of Bhamlaya and is proceeded qua Chander the other defendant i.e. the petitioner herein, there remains a possibility of contradictory and conflicting decree being passed against the defendant-Chander. Both the defendants led their claim on the basis of this Will and the resultant effect of the abatement qua Bhamlaya only would mean that whereas no declaration of the Will, being void and ineffective, could be sought against the legal heirs of deceased- Bhamlaya but the same Will could be declared as null and void qua Chander, thus, leading to contradictory and conflicting decree. It is not a case where the two defendants were joined in the suit merely as the matter of convenience and each could be proceeded against independently, distinctly and separately. The claim of the plaintiff against the two defendants was joint and indivisible and thus in the facts and circumstances of the case, the suit abated in toto.
12. The instant case is squarely covered by the authority Amar Singh and others Vs. Lal Singh and others (supra), relied upon by the counsel for the plaintiff-petitioner. In that case the Hon'ble Apex Court held that when the defence was based on a Will and the appeal stood abated qua some of the respondents, the relief, being joint and inseparable, the appeal was held to be abated as against all the respondents.
13. Similar issue arose in the case of Mukhtiar Singh & anr. Vs. Keshav Kaur (1996)7 SCC 299 wherein also the Hon'ble Apex Court upheld the abatement of the suit as a whole.
14. As far as the maintainability of the revision petition is concerned, as raised by counsel for the plaintiffs-respondents, this Court is of the view that this question, falls into insignificance as it is always open for this Court to treat a revision petition as a Writ Petition in an appropriate case and this position is not disputed by the ld. Counsel for the respondents.
15. Consequently, the revision petition stands allowed. The orders of the trial court dt.19/12/2005 and of the lower appellate court dt.11/10/2011 are hereby quashed and set aside and the suit is held to be abated in toto. [J.K. RANKA], J.
Raghu/p.13/4-Civil Revision-2012-Final.doc Certificate:All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed.
/Raghu, PA.