Madras High Court
Ponniammal vs Ramalingam on 10 February, 2014
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 10 - 02 2014 Coram The Hon'ble TMT. JUSTICE PUSHPA SATHYANARAYANA Second Appeal No. 1018 of 2006 Ponniammal .. Appellant vs. Ramalingam .. Respondent Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 30.8.2005 in A.S. No. 37 of 1999 on the file of the Subordinate Judge, Cheyyar, reversing the judgment and decree dated 30.9.1997 made in O.S. No. 38 of 1990 on the file of the Additional District Munsif, Cheyyar, Tiruvannamalai. For Appellant : Mr. P. Mani For Respondent : No appearance JUDGMENT
The present appeal is preferred against the judgment and decree dated 30.8.2005 passed in A.S. No. 37 of 1999 on the file of the Subordinate Judge, Cheyyar, reversing the judgment and decree dated 30.9.1997 passed by the Additional District Munsif, Cheyyar, Tiruvannamalai, O.S. No. 38 of 1990.
2. The second defendant in the suit is the appellant and the suit is for declaration of title and for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiff.
3. The case of the plaintiff is that the suit property belonged to the plaintiff's father and the plaintiff is the son of first wife and the first defendant is the son of second wife. After the death of their father, the plaintiff and the first defendant were enjoying the property and divided among themselves on 29.12.1983 at the instance of Panchayatdars. The suit property fell to the share of the plaintiff and he has been enjoying the same in his own rights. When the defendants started troubling the plaintiff in his enjoyment of the suit property in a peaceful manner, the suit was filed.
4. Resisting the suit, the defendants filed written statement denying the averments made by the plaintiff. The first defendant though married, was not living with his wife. The second defendant is living with the first defendant. The defendants claimed right to the suit property under Koor chit dated 17.7.1961.
5. Before the trial Court, the plaintiff examined himself as P.W.1 and marked Exs. A.1 to A.17 while the second defendant examined herself as D.W.1 besides examining two more witnesses as D.W.2 and D.W.3 and marked Exs. B.1 to B.13.
6. After the trial, the trial Court dismissed the suit. Aggrieved, the plaintiff had filed A.S. No. 37 of 1999 on the file of the Sub-Court, Cheyyar. The First Appellate Court after consideration of facts and law, reversed the judgment of the trial Court and decreed the suit allowing the appeal. Aggrieved by the same, the above appeal is filed by the second defendant.
7. At the time of admission of this Second Appeal, the following substantial questions of law were framed for consideration:-
(i) Whether Ex.A.18 Koor Chit in which joint family properties of the plaintiff and the first defendant were partitioned by metes and bounds require registration under Section 17(1)(b) of the Registration Act and whether the same could be received in evidence and relied upon without registration?
(ii) Whether Ex.A.18 Koor Chit is genuine and valid in law when the same was not produced before the trial Court and the same was proved in the manner known to law?
(iii) Whether in law, the Judgment and deree passed by the first appellate Court are valid when admittedly the contesting first defendant died during the pendency of the appeal the petitions to bring his legal representatives on record were dismissed?
8. Now, the question that has to be decided is Question No. 3 extracted above. If the above issue is decided in favour of the appellant, the suit has to be dismissed.
9. Before proceeding on the merits of the case, Mr. P.Mani, learned counsel appearing for the appellant brought to the notice of this Court that during the pendency of the appeal, the first defendant Subramanian, who is the first respondent in A.S. No. 37 of 1999 died. Therefore, the plaintiff / sole respondent herein and who was the appellant in A.S. No. 37 of 1999 filed I.A. No. 12 of 2001 for condonation of delay in setting aside the abatement caused due to the death of the first respondent therein along with the applications to set aside the abatement and bring the legal heirs of the deceased first respondent therein, on record.
10. From the materials available on record, it is seen that the said Interlocutory Application for condonation of delay was dismissed on 01.10.2002 by the Sub-Court, Cheyyar, and the plaintiff / appellant therein had not preferred any revision against the dismissal of the same. During the course of hearing, learned counsel for the appellant produced certified copy of the order dated 01.10.2002 passed in I.A. No. 12 of 2001 before this Court. Consequent to the dismissal of the delay petition, the other applications to set aside abatement and to bring Legal Representatives on record were also dismissed. The First Appellate Court, without adverting to the said fact, had proceeded to decide the appeal on merits and decreed the suit against the dead person.
11. Now, learned counsel for the appellant points out that though the second defendant, who is the appellant herein, was shown as the second respondent in A.S. No. 37 of 1999, was already on record, since the decree for declaration is joint and inseparable one, the appeal would automatically abate in entirety and the suit ought to have been dismissed.
12. There is some force in the argument of the learned counsel for the appellant. The provisions of Order 22 Rules 4 and 5 of the Code of Civil Procedure are mandatory. When the respondent in the appeal dies and the right to sue survives, the legal representatives of the deceased respondent have to be brought on record before the Court can proceed further in the appeal. The Court cannot postpone the decision as to who is the legal representative of the deceased respondent to be decided along with the appeal. Though the Code of Civil Procedure does not specifically provide that the determination of legal representatives should precede the hearing of the appeal on merits, Order 22 Rule 4 CPC read with Rule 11 of the CPC makes it clear that the appeal can be heard only after the legal representatives are brought on record.
13. In the present case, the First Appellate Court had dismissed the application for condonation of delay in setting aside the abatement as early as on 01.10.2002 after contest by both the parties. The dismissal of the said application was not taken up on revision and the plaintiff / appellant allowed the appeal to go on without impleading the legal representatives. This amounts to the appeal being heard against a dead person, which is clearly impermissible in law. In fact, this results in the entire judgment a nullity and inoperative. The appellant herein, who was the second respondent in the First Appeal, had no independent right in the property as admittedly, she was not the legally wedded wife of the deceased first defendant. She derives title, if any, only through the deceased first defendant. Therefore, the decree granted by the First Appellate Court in favour of the plaintiff is inseparable one.
14. Learned counsel appearing for the appellant relied on the decision of a Five Member Bench of the Hon'ble Apex Court in S. Amarjit Singh Kalra (dead) by Lrs. and others v. Smt. Pramod Gupta (dead) by Lrs. and others reported in 2003 (1) CTC 677 wherein of the wherein it is observed as follows:-
Para 34 : "In the light of the above discussion, we hold:
(1) Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for the purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them.
(2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings, as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees.
(3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one.
(4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-`-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other."
Learned counsel for the appellant was emphasizing Clause 4 stated above.
15. The next decision on which the learned counsel placed reliance is Nathi Bai v. Suraj Narain reported in CDJ 1965 Rajasthan High Court 210, wherein it has been held as follows:-
"A look at the plaint of the petitioner in this case would clearly show that she claimed a common decree with respect to her title to the properties involved in the suit against both the respondents and she further claimed a joint declaration against both of them that the properties in suit were not liable to attachment and sale in execution of the decrees held by them against her son. In these circumstances, we are altogether unable to hold that in so far as the trial court dismissed the plaintiffs suit it passed a decree and it was that decree that was under appeal before us which could be said to be a separate and independent decree in favour of the two respondents and against her. The decree was, in our view, joint and indivisible in the circumstances of this case, and, if the appeal, which had abated against one of the respondents, was allowed to continue against the remaining one, the possibility of conflicting decrees arising out of the appeal could not be prevented, and if that is a correct conclusion to come to, as we think it is, it is impossible for us to hold that the decision which is sought to be appealed against involves any error of law, let alone a substantial one."
16. Yet another decision relied on by the learned counsel was relating to Dwarka Prasad Singh v. Harikant Prasad Singh, reported in (1973) 1 SCC 179 following the decision in State of Punjab vs. Nathu Ram reported in (1962) 2 S.C.R. 636.
"According to that rule the abatement of an appeal means not only that the decree between the appellant and the deceased respondent becomes final but also, as a necessary corollary, the appellate court cannot in any way modify that decree directly or indirectly. The decision in Nathu Ram case, was referred to in Pandit Siri Chand v. Jagdish Parshad Kishin Chand where the decision was somewhat similar to Rameshwar Prasad case. It was also emphasised that in a situation where two inconsistent orders or decrees would result the rule in Nathu Ram case, would be applicable. It may be mentioned that in that case an award had been made for payment of compensation in favour of two brothers L & N. The State appealed against the award to the High Court. During the pendency of the appeal Respondent L died and no application was made; for bringing on record his legal representatives within the requisite period of limitation. The question was that since the appeal had abated against L what was its effect in appeal against N. It was observed that the consideration which would weight with the court in deciding whether the entire appeal had abated or not would be whether the appeal between the appellants and the respondents other than the deceased respondent could be said to be properly constituted or could be said to have all the necessary parties for the decision of the controversy before the court. Another main test was whether the success of the appeal would lead to a decision which would be in conflict with the decision between the appellant and the deceased respondent. Thus the court will have to pass a decree contradictory to the one which had already become final with respect to the same subject-matter between the appellant and the deceased respondent. It is arguable that the present case is distinguishable from the decisions in Rameshwar Prasad and Pt. Siri Chand. Here the appellate court could, under Order 41, Rule 4 of the Civil Procedure Code reverse the decree for specific performance since the defendants second party, filed the appeal and Guha, the vendor, who died had not joined in the appeal. The decree for specific performance proceeded on a ground common to both sets of defendants. It could, therefore, be set aside in terms of the above provision. But there is a joint decree in favour of both sets of defendants for the receipt of Rs 77,000. If the decree for specific performance is set aside that part of the decree will also have to go. It is not possible to understand how that can be done in the absence of the legal representatives of the deceased, Guha. Moreover, the plaintiffs had claimed against Guha, in the alternative, a decree for substantial amount consisting of the part consideration paid and certain other amounts. If Guha had been alive or if his legal representatives had been impleaded in time the court could, while setting aside the decree for specific performance, grant the alternative prayer which was only made against Guha. This cannot be done now. In these circumstances we are of the view that Order 41 Rule 4 of the Code of Civil Procedure cannot be of any avail to the appellants. The abatement of the appeal, so far as Guha was concerned, will prove fatal to the entire appeal as either inconsistent and contradictory decrees will have to be passed or proper reliefs cannot be granted in the absence of a necessary party against that party or his legal representatives."
17. In view of the above decisions, it is clear that the non-impleadment of legal heirs of the deceased first defendant is fatal to the case of the appellant. Lack of diligence or negligence can be attributed to the plaintiff, only when he is aware of the death of the defendant and fails to take steps to bring the Legal Representatives on record. But in this case, having filed the applications with condonation of delay petition and when the same was dismissed, knowing fully well about the impact of the same, the plaintiff has not chosen to file the revision and get the legal heirs impleaded in the appeal. No doubt, impleadment of legal representatives in a suit or appeal is for the limited purpose of adjudication of a case and not for the determination of proprietory rights. When the plaintiff had knowingly given up the right, automatically the appeal against the dead person is a nullity. Therefore, the appeal against a dead person is impermissible in law and as such, the judgment of the First Appellate Court decreeing the suit against the dead person under whom the appellant herein claims title, cannot be allowed to stand and the same has to be set aside.
18. In the result, the judgment rendered on merits by the First Appellate Court without impleading the Legal Representatives of the deceased first defendant, amounting to an appeal against a dead person, is a nullity and the decree granted is inoperative. As such, question of law No. 3 is answered in favour of the appellant and hence, it is not necessary to deal with the other questions.
In view of the foregoing reasons, the judgment and decree dated 30.8.2005 passed by the First Appellate Court / learned Subordinate Judge, Cheyyar, in A.S. No. 37 of 1999 are set aside and the Second Appeal stands allowed. However, there shall be no order as to costs.
10 02 2014 Index : Yes Internet : Yes Note to Registry:-
Registry is directed to tag the certified copy of the order dated 01.10.2002 passed in I.A. No. 12 of 2001, which was produced before this Court, along with original records.
gri To
1. Subordinate Judge Cheyyar Tiruvannamalai
2. Additional District Munsif Cheyyar Tiruvannamalai
3. The Record Keeper V.R. Section High Court Madras.
PUSHPA SATHYANARAYANA, J.
gri Pre-Delivery Judgment in S.A. No. 1018 of 2006 Delivered on 10 02 2014