Himachal Pradesh High Court
Ramesh Chand And Anr. vs Sant Kumar on 22 April, 2002
Equivalent citations: AIR2003HP66
Author: R.L. Khurana
Bench: R.L. Khurana
ORDER R.L. Khurana, J.
1. The abovenoted two second appeals are being disposed of by this common Judgment since the question involved therein is the same.
2. The appellants in both the appeals are the defendants, while the respondent is the plaintiff. The parties are being referred to accordingly hereinafter.
3. Briefly stated, the facts of the case giving rise to the present two appeals are these. One Atma Ram son of Gobind Ram was the owner and in possession of the following lands in village Sasan, Tehsil and District Una, as detailed in the Jamabandi for the year 1981-82 :--
(a) Land measuring 20 kanals 3 marlas comprising of khasra Nos. 176, 431, 917, 253, 436, 437, 441, 426, 427 and 430; and
(b) Land measuring 28 kanals 15 marlas comprising of khasra Nos. 235. 428, 978/ 1, 1027/1, 181, 978, 976, 977, 1027, 1028, 15/3 and 3/10/2.
4. The said Atma Ram, who died on 4-6-1983, is alleged to have executed a gift in respect of the land detailed at (a) above and a Will in respect of the land detailed at (b) above on 18-5-1983 in favour of the defendants, his nephews. The plaintiff is the grand son (daughter's son) of the said Atma Ram.
5. The plaintiff claiming himself to be the sole natural heir of the deceased Atma Ram filed two suits being Civil Suit No. 289/ 94 and 290/94 for possession of the abovesaid two parcels of land. Civil Suit No. 289/94 was filed for possession of the land detailed at (a) above. It was averred that the gift deed dated 18-5-1983 alleged to have been executed by the deceased Atma Ram in favour of the defendants was null and void, illegal and not binding on the rights of the plaintiff since the same was got executed by the defendants by fraud and undue influence.
6. Civil Suit No. 290/94 was filed for possession of the land detailed at (b) above. It was averred that the Will dated 18-5-1983 alleged to have been executed by the deceased Atma Ram was null and void, illegal and not binding on the rights of the plaintiff since the same was got executed by the defendants by fraud and undue influence.
7. Both the suits were resisted and contested by the defendants. They pleaded that the deceased out of his own free will and consent in a sound disposing mind had executed the gift and the Will in their favour in lieu of services being rendered by them to the deceased and his mentally retarded daughter Kamla Devi, the mother of the plaintiff.
8. The learned trial Court vide two separate judgments and decrees dated 30-8-1991 dismissed both the suits of the plaintiff by holding that the deceased Atma Ram had validly executed the gift and the Will on 18-5-1983 in favour of the defendants.
9. Feeling aggrieved, the plaintiff preferred two appeals being Civil Appeals Nos. 115/94 (92) and 114/94(92). The learned Additional District Judge on 27-4-1994 allowed both the appeals and after setting aside the judgments and decrees of the learned trial Court, decreed both the suits for possession in favour of the plaintiff in respect of the two sets of land detailed at (a) and (b) above. The learned Additional District Judge came to the conclusion that the gift and Will dated 18-5-1983 were null and void, and invalid having been obtained by the defendants under undue influence. The plaintiff being the only natural legal heir, that is, son of daughter of the deceased, was held entitled to succeed to such land.
10. The defendants, feeling aggrieved have come up before this Court by way of the present two appeals. Both these appeals came to be admitted for hearing on 29-2-1996 on the following common substantial questions of law :--
1. Whether the findings of the Court below that Will Ext. D1 and the Gift deed executed by Atma Ram is the result of misrepresentation of fraud and the transaction was vitiated?
2. Whether the findings of the Court below are based on misconstruction of the oral and documentary evidence particularly the documents of title that is Will and Gift Deed Ext. D1 which has vitiated the findings?
3. Whether the Court below has made out a wholly new case for the plaintiff and on the evidence on record, the only irresistible conclusion which could be drawn was that Atma Ram had executed a Gift Deed and Will Ext. Dl for the services rendered by the appellants and the suit as framed was not maintainable?
11. During the pendency of the present appeals, one of the defendant-appellant, namely Kamal Dev died on 23-10-1997. No applications for bringing on record his legal representatives were made within the prescribed period of limitation. Resultantly, both the appeals insofar as the deceased defendant Kamal Dev is concerned stood abated on 21-1-1998 on the expiry of the requisite period of limitation of 90 days prescribed for the application for bringing on the record the legal representatives of the deceased.
12. Applications in both the appeals were made on 13-4-1999 under Order 22, Rules 3 and 9, Code of Civil Procedure and under Section 5, Limitation Act, 1963 seeking the condonation of the delay, setting aside the abatement and for bringing on record the legal representatives of the deceased defendant-appellant Kamal Dev. Such applications in both the appeals were dismissed by a learned single Judge of this Court on 7-7-1999.
13. Consequent upon the dismissal of the applications for setting aside the abatement vide order dated 7-7-1999, which order has not been challenged by way of an appeal either by the surviving defendant-appellant or by the legal representatives of the deceased defendant-appellant and the same having become final, the question which survives for determination is as to what is the effect of the abatement of the two appeals in respect of deceased appellant-defendant. Whether the two appeals would stand abated as a whole or only qua the deceased defendant-appellant Kamal Dev.
14. In State of Punjab v. Nathu Ram, AIR 1962 SC 89, land belonging jointly to two brothers was acquired by the State of Punjab for army purpose. Since the two owners did not accept the compensation offered to them by the Collector, the State Government referred the matter as to quantum of compensation to an Arbitrator under Rule 10 of the Punjab Land Acquisition (Defence of India) Rules, 1943. The Arbitrator passed a joint award in favour of the two brothers granting higher compensation to them. The State Government preferred an appeal before the High Court against the award of the Arbitrator. During pendency of appeal one of the brothers died. His legal representatives were not brought on record and as such the appeal as against such deceased abated. A question arose whether the appeal would abate as against the surviving brother as well.
15. It was contended on behalf of the State-appellant that since according to the revenue entries, the two brothers had equal shares in the land acquired, the appeal against the surviving brother would not abate and could be continued in respect of his half share in the amount of compensation awarded.
16. Repelling the contention, it was held by the Hon'ble Apex Court that in order to get rid of the joint decree (award) it was essential for the State-appellant to implead both the joint decree holders and in the absence of one, the appeal was not properly constituted. The subject matter for which compensation was awarded was one and the same land and the assessment of compensation insofar as the deceased was concerned having become final, there could not be different assessment of compensation for the same parcel of land. The necessary corollary was that the appeal stood abated as a whole.
17. It was further held :
"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."
18. In Ram Sarup v. Munshi, AIR 1963 SC 553, a pre-emption decree was passed against five defendants vendees. While the appeal was pending before the Hon'ble Apex Court one of the appellants died. No application was made to bring on record the legal representatives of such deceased appellant. The sale in question was not a sale of any separated item of property in favour of the deceased appellant but was of one entire set of properties in favour of all the vendees in equal shares. It was held that since the decree was joint one and part of the decree had become final by reason of abatement, the entire appeal stood abated.
19. In Ramagya Prasad Gupta v. Murli Prasad, AIR 1972 SC 1181, the Hon'ble Apex Court noted with approval the three tests applied by the Courts in order to determine if the appeal abates in its entirety and held that the tests are not cumulative and even if one of them is satisfied, the Court would dismiss the appeal as not properly constituted. The three tests generally applied are:--
(a) Where the appeal, if allowed, would lead to the Court passing a decree, which would be contradictory to the decree which has become final with respect to the same subject matter between the appellant and the deceased respondent;
(b) where the appellant could not have brought an action for the relief against the respondents alone, who are still before the Court; and
(c) where the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is, it cannot be successfully executed.
20. A Division Bench of this Court in Shiv Ram v. Bhagat Ram, ILR (1978) Him Pra 158 : AIR 1978 Him Pra 12) has held that when a co-owner dies, his interest can be represented only by his own legal representatives and not by his co-owners. It is only in case of joint owners, where the position is different, because the surviving joint owners can represent the interest of the deceased joint owner as effectively as the legal heirs of the deceased joint owner can, unless, of course, the peculiar facts of a given case reveal that the deceased joint owner had some adverse claims against the surviving joint owners.
21. In the present case as well the decrees against the two defendants-appellants are joint and inseparable. The effect of abatement insofar as the deceased defendant-appellant Kamal Dev is concerned, is affirmance of the decree qua him. In case the first test, as at (a) above is applied, it would result in conflicting decrees in the event of the appeals qua the surviving defendant-appellant being allowed, with respect to the same, subject matter. In other words, the gift and the Will qua the deceased defendant-appellant would be declared as null and void while qua the surviving defendant-appellant the same gift and Will would be declared as valid.
22. In view of the aforementioned legal position, the two appeals would stand abated in their entirety and liable to be dismissed accordingly. It is, therefore, held that the two appeals have abated in their entirety and are dismissed accordingly. The parties are, however, left to bear their own costs.