1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4103 OF 2008

HEMAREDDI (D) THROUGH LRs . ....APPELLANT(S)

VERSUS

RAMACHANDRA YALLAPPA HOSMANI

AND ORS. ....RESPONDENT(S)

J U D G M E N T

K.M. JOSEPH, J.

1. This appeal by special leave is directed against

the order of the High Court in Regular First appeal

No.717 of 1998. By the impugned judgment, the High

Court has taken the view that the appeal filed by

2

the appellant does not survive for consideration.

This is on the following reasoning :

The appeal was filed by the appellant and his late

brother against the judgment by the trial court

dismissing the suit filed by them. The relief

in the suit was to declare that defendant No.1

was not the adopted son and he has no title or

interest over the suit proper ty and for

prohibitory injunction against the defendant not

to disturb the joint possession of the suit

agricultural land of the plaintiff and defendant

No.2.

2. It was the appellants case that one

Govindareddi, the propositus died in 1946. He left

behind him two sons and a daughter. The plaintiffs

were the children of one of the son s. The second

defendant was the wife of the other son Basava reddi.

3

The suit properties were the properties of the joint

family of Govindareddi and his sons it was claimed.

The plaintiffs have filed another suit as O.S. No.66

of 1990 against the second defendant for declaration

that she has no right in the property. Injunction

was also sought. Injunction was ordered against

her. On the ill advice of some advisors it was their

case that she has created a false document of

adoption dated 27.04 .1991 adopting the first

defendant. Defendants 3 and 4 are alleged to have

given to the first defendant on adoption to the

second defendant. The trial Court dismissed the

suit and therefore upheld the adoption. Against

the said judgment as noted , both the plaintiffs

preferred first appeal before the High Court. It

is while so that during the pendency of the appeal

the second plaintiff/second appellant died. The

LRs of the second a ppellant were not brought on

4

record. The appeal, therefore, abated qua the

second appellant. The High Court took the view that

having regard to the decree which has been passed

the appeal would abate not only qua the second

appellant/ plaintiff but as a whole and accordingly

it was so ordered.

3. We have heard learned counsel for the

parties.

4. Learned counsel for the appellant drew our

attention to the following orders passed by the High

Court in the appeal and referred to in the impugned

judgment:

“8. When the matter was listed on 20

th

July, 2001, this court observed thus:

It is stated by the learned counsel for

the appellant that the second

appellant (plaintiff No.2) is died and

in view of the death of second

appellant, the matter is adjourned by

two weeks to enable the appellants’

counsel to take steps.”

5

9. The appeal was relisted on

10.09.2001. This court has observed thus:

Hence the appeal filed against the

appellant No.2 abates. Memo filed by

appellant No.1 submitting himself and

appellant No.2 are brothers and

co-owners of suit schedule property.

Since the LRs of appellant No.2 have

not evinced interest to prosecute the

appeal, appellant No.1 prays

permission to prosecute the appeal.

Accordingly, permission is granted.”

5. Learned counsel for the appellant would

contend that the appellant herei n could have filed

a separate suit seeking t he same relief.

Learned counsel for the appellant relied upon

the order passed on 10/09/2001 and contended that

though the LRs of the appellant No.2 did not evince

interest to prosecute the appeal, the petitioner who

is appellant No.1 prayed for permission to prosecute

the appeal. The permission was granted by the High

Court. The respondents did not oppose the

prosecution of the appeal filed by the appellant

6

despite knowing that the second appellant did not

choose to get themselves impleaded and the appeal

would have abated qua him also. According to the

appellant this would stand in the way of the court

and the respondents from proceeding on the basis

that the appeal has abated as a whole. In other

words, he contended that estoppel will op erate

against the appeal being dismissed on the death of

the second appellant, and on the basis that the

appeal has abated as a whole. He also drew our

attention to the judgment of this Court in Sardar

Amarjit Singh Kalra (Dead) B Y LRS. and Others v.

Pramod Gupta (Smt) (D) BY LRS. And Others; 2003 (3)

SCC 272.

6. Per contra, learned counsel appearing for

the respondents supported the order of the High

Court. He contended that the order passed by the

7

High Court will not operate as estoppel estopping

them from contending that the appeal has abated as

a whole. There would be conflict of decrees, as on

the one hand, the trial Court has passed a decree

upholding the adoption , and even if the High Court

were to allow the appeal filed by the appellant and

hold that the adoption was invalid, there will be

two conflicting decrees , one by the trial Court

which as far as the deceased second appellant is

concerned, has become final and another by the High

Court taking a contrary view. This is not

contemplated in law and therefore, the reasoning of

the High Court is only to be supported.

7. Death of a party during the currency of a

litigation indeed has given rise to vexed questions.

Procedure is the hand maiden of justice , the

technicalities of law should not be allowed to

8

prevail over the demands of justice and obstacles

in the path of the Court considering a case on merit

should not ordinarily become insuperable. On the

other hand, if the so called procedural requirement

is drawn from a wholesome principle of substantive

law to advance the ca use of justice, the same may

not be overlooked.

Order XXII Rule 3 C.P.C.

“3. Procedure in case of death of one of

several plaintiffs or of sole plaintiff

(1) Where one of two or more plaintiffs

dies and the right to sue does not survive

to the surviving plaintiff or plaintiffs

alone, or a sole plaintiff or sole

surviving plaintiff dies and the right to

the sue survives, the Court, on an

application made in that behalf, shall

cause the legal representative of the

deceased plaintiff to be made a party and

shall proceed with the suit.

(2) Where within the time limited by

law no application is made under sub -rule

(1), the suit shall abate so far as the

deceased plaintiff is concerned, and, on

the application of the defendant, the Court

may award to him the costs which he may have

incurred in defending the suit, to be

9

recovered from the estate of the deceased

plaintiff.”

8. There can be no doubt that Order XXII Rule

3 is applicable also to appeals filed under Order

41. Order XXII Rule 3 declares that where one o f

two or more plaintiffs dies and the right to sue does

not survive to the surviving plaintiff or plaintiffs

alone inter alia the Court on an application can

substitute the legal representatives of t he

deceased plaintiff and proceed with the suit.

Sub-rule (2) provides that if it is not so done, the

suit shall abate as far as the deceased plaintiff

is concerned. Order XXII Rule (3) therefore is

applicable when either a suit or an appeal is filed

by more than one plaintiffs or appellants as the case

may be. This is no doubt apart from it applying when

there is a sole plaintiff or sole appellant. In such

a situation, on the death of one of the plaintiffs

10

or appellants and the right to sue does not survive

to the remaining plaintiff/plaintiffs or

appellant/appellants alone, then the LRs of the

deceased party can come on record. Should he not

do so, ordinarily, the proceeding will abate as far

as the deceased party is conce rned.

9. Let us first of all examine whether the right

to sue survived to the appellant alone or the right

to sue was available to the LRs of the deceased

appellant as well. It is quite clear that there

were legal representatives available for the seco nd

appellant. This is not a case where the estate of

the second appellant would pass to the appellant

herein by survivorship or otherwise. Therefore,

the first requirement is fulfilled for allowing

Order XXII Rule 3 to operate. Admittedly, steps

were not taken for substitution in regard to the

11

second appellant. The appeal , therefore, abated

qua him as is declared by Order XXII Rule 3(2) .

Though this is all that the Order XXII Rule 2

declares, the principle has evolved that in certain

kinds of litigation, the consequences of abatement

qua a party is not limited to the deceased party

alone but it affects all the other parties and the

litigation itself. In other words, a suit or an

appeal as the case may be, would suffer an untimely

demise by the proceeding abating as a whole.

10. The question which we are called upon to

answer is whether this is such a case ? The

allegation in the plaint as we have noticed is that

the suit properties are joint properties and the

second defendant had no exclusive right to the

property. She ha d created a false document

described as an adoption deed by which she has

12

purported to adopt the first defendant. The first

defendant cannot claim any right to the suit

property as an adopted son. On the alleged date of

adoption, the husband of the second defendant was

alive. He had died on 16.04.1987, in jointness with

the plaintiffs. The plaintiffs were the joint owners

of the suit land and also other property . When

Basavareddi, the husband of the second defendant was

alive, she has no right to take the first defendant

on adoption. Defendant No.1 cannot claim any title

interest or right over the suit property.

11. In this case having noted pleadings and the

relief sought we can proceed on the basis that it

was the appellant’s case that the plaintiff’s

property was the joint family property belonging to

the appellant and his deceased brother. The trial

Court dismissed the suit. The result is that the

13

adoption of the 1

st defendant by the 2

nd defendant

which was challenged by the appellant and his late

brother was upheld. The said judgment was called

in question in a Single Appeal by the appellant and

his late brother. It is while the appeal was so

pending that the late brother passed away. The

appeal having abated in regar d to the late brother,

the decree of the trial Court has become final qua

the deceased brother of the appellant. The effect

of the same is that the adoption is found legal. The

result of the appellant being allowed to proceed

further and succeed in the a ppeal would be the

passing of a decree by the High Court . The said

decree would be to the effect th at the adoption is

invalid. The suit which was jointly filed by the

appellant and his late brother would have to be

decreed whereas the suit filed by the a ppellant and

his late brother stands dismissed by the trial

14

Court. Both the decrees cannot stand together .

There would be irreconcilable conflict. The

defendants are common. They would be faced with two

decrees regarding the same subject matter which are

irrevocably conflicting.

12. In State of Punjab vs. Nathu Ram AIR 1962 SC

89, the Punjab Government had acquired certain

pieces of land belonging to two brothers . Upon their

refusal to accept the compensation offered , their

joint claim was referred to arbitration on the basis

that the land belong to them jointly. An award was

passed in their favour. The Government appealed

before the High Court. During pendency of the

appeal, one of the brothers died. No application

was filed to bring on record his LRs within the time

limit. The High Court dismissed the appeal and

reasoned that it abated against the person who has

15

died and the appeal abated as a whole. It is useful

to advert to what this Court has laid down in State

of Punjab vs. Nathu Ram (Supra) at pages 638-640:

………… “The Code does not provide for the

abatement of the appeal against the other

respondents. Courts 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. They have

not been always agreed with r espect to the

result of the particular circumstances of

a case and there has been, consequently,

divergence of opinion in the application of

the principle. It will serve no useful

purpose to consider the cases. Suffice it

to say that when O. XXII, r. 4 does not

provide for the abatement of the appeals

against the co-respondents of the deceased

respondent, there can be no question of

abatement of the appeals against them. To

say that the appeals against them abated in

certain circumstances, is not a correct

statement. Of course, the appeals against

them cannot proceed in certain

circumstances and have therefore to be

dismissed. Such a result depends on the

nature of the relief sought in the appeal.

The same conclusion is to be drawn from

the provisions of O.I, r.9, of the Code

which provides that no suit shall be

defeated by reason of the misjoinder or

non-joiner of parties and the Court may, in

every suit, deal with the matter in

controversy so far as regards the rights

16

and interests of the parties actually

before it. It follows, therefore, that if

the Court can deal with the matter in

controversy so far as regards the rights

and interests of the appellant and the

respondents other than the deceased

respondent, it has to proceed with the

appeal and decide it. It is only when it is

not possible for the Court to deal with such

matters, that it will have to refuse to

proceed further with the appeal and

therefore dismiss it.

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 a ction

17

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 wit h 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

18

with by the ap pellate 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.”

(Emphasis supplied)

The attempt of the State to contend that the brothers

had equal share of land in the village records and

therefore, the appeal should be proceeded with did

not appeal to the court. This Court further

proceeded to observe that the brother has made a

19

joint claim and had a joint decree and the frame of

the appeal was with reference to the decree

challenged. The appeal failed. It will be

immediately noticed that this was a case which

involved Order XXII Rule 4. Order XXII Rule 4 reads

as follows:

“4. Procedure in case of death of one of

several defendants or of sole defendant -

(1) Where one of two or more defendants

dies and the right to sue does not survive

against the surviving defendant or

defendants alone, or a sole defendant or

sole surviving defendant dies and the right

to sue survives , the Court, on an

application made i n that behalf, shall

cause the legal representative of the

deceased defendant to be made a part y and

shall proceed with the suit.

(2) Any person so made a party may make

any defence appropriate to his character as

legal representative of the deceased

defendant.

(3) Where within the time limited by law

no application is made under sub -rule (1),

the suit shall abate as against the

deceased defendant.

(4) The Court whenever it thinks fit, may

exempt the plaintiff from the necessity of

substituting the legal representatives of

20

any such defendant who has failed to file

a written statement or who, having filed

it, has failed to appear and contest the

suit at the hearing; and judgment may , in

such case, be pronounced against the said

defendant notwithstandi ng the death of

such defendant and shall have the same

force and effect as if it has been

pronounced before death took place. ”

13. The next decision we would notice is the

decision in Ram Sarup vs. Munshi & Ors. 1963 (3) SCR

858. The case involved the death of one of the

respondents during the pendency of the appeal filed

by the State. The question involved was whether the

right of preemption would continue to be available

despite the repeal of the Punjab Alienation of Land

Act, 1900. In one of the civil appeals, the

pre-emptors who claimed the right of pre-emption who

were 4 in number, obtained a decree against the

vendees. The appellant vendee s had purchased the

property for Rs. 22,750/-. The appellant Nos.1 and

2 paid one half amounting to Rs.11,375/-. The other

21

3 appellants paid the other half . The sale deed

showed that it was not a case of sale of separate

items in favour of deceased-appellant but of one

entire set of properties enjoyed by two set of

vendees in equal share. Pending the appeal by the

appellants vendees, the first appellant died and it

abated as against him . In this set of facts this

Court proceeded to hold that the decree being a joint

decree and a part of the decree has become final by

reason of the abatement, the entire appeal would

abate. The reasoning was there could be no partial

pre-emption because pre -emption was the

substitution of pre-emptors in place of the vendees

and it was found that if the decree in favour of the

pre-emptors in respect of the share of the deceased

vendee appellant had become final there would be two

conflicting decrees if the appeal were to be allowed

and the decree of pre-emption insofar as appellants

22

2 to 5 were concerned was interfered with. It must

at once be noticed that Order XXII Rule 3 provides

for the converse of Order XXII Rul e 4. That is to

say Order XXII Rule 3 deals with a case where one

or more plaintiffs or appellants or the sole

plaintiff or sole appellant dies during the pendency

of the suit or appeal. Order XXII Rule 4 on the

other hand deals with a case where one or more of

the defendants in the suits or sole defendant or the

respondents or sole defendant in the appeal dies.

In both these cases it must be noticed that it is

a condition precedent for the provisions to apply

that the right to sue does not survive to the

remaining plaintiffs/ appellants (Order XXII Rule

3) or the remaining one or two appellants and right

to sue does not survive against the defendant or

defendants in the suit or respondents in the appeal

alone or the sole defendant or surviving defendants

23

dies and the right to sue survives. It must be noted

that Order XXII Rule 2 deals with a situation where

there are more than one plaintiffs and defendants

and any of them dies and the right to sue survives

to the surviving plaintiff or plaintiffs alone or

against the surviving defendant or defendants

alone, the suit or the appeal shall be proceeded

against at the instance of the surviving plaintiff

or plaintiffs/appellant or appellants or against

surviving defendant or defendants in the

suit/respondents in the a ppeal.

14. In Ram Sarup vs. Munshi & Ors. (supra), nine

persons instituted a suit for ejectment and recovery

of rent against two defendants. The suit was

decreed. In an appeal by the defendants, the decree

of the Trial Court was set aside against the second

defendant. During the pendency of the second

24

appeal filed by all the plaintiffs , one of them died.

His LRs were not brought on record and the appeal

abated as far as such appellant was concerned . The

objection raised by the respondents that the appeal

could not be proceeded with a s the appeal abated as

a whole, was accepted. An attempt was made under

Order XXII Rule 2 by contending that the nine

appellants constituted a Joint Hindu Family and on

the death of one of the appellants, the right to sue

survived in favour of the remaining appellants, as

at that time the Hindu Succession Act had not been

passed, was repelled o n facts by holding that the

appellants did not constitute a Joint Hindu Family .

Further attempt to draw support from Order XLI Rule

4, namely, that the appeal pro ceeded on a ground

common to all the plaintiffs and defendants , and any

one of the plaintiffs /defendants may appeal from

the whole decree and the decree could be reversed

25

or varied in favour of the plaintiffs or defendants

was not accepted as it was found that Order XLI Rule

4 only enabled one of the plaintiffs/defendants to

file an appeal and it would not apply in a case where

all the plaintiffs had filed the second appeal. The

Court took the view that the appeal abated as a whole

as all the appellants had a common right in getting

an ejectment against the second defendant and such

a decree was on a ground common to all of them. It

was further found that the defendants could not be

ejected from the premises when he had a right to

remain in occupation on the basis of a decree holding

that a deceased-appellant, one of the persons having

joint interest in lett ing out property could not

have ejected him. It was further held that it was

not possible for the defendant to continue as tenant

of one of the landlords and not as a tenant of the

26

others when all of them had a joint right to eject

or to have him as their tenant.

15. In the judgment of this Court in Harihar

Prasad Singh and Others vs. Balmiki Prasad Singh and

Others 1975 (1) SCC 212, the issue involved was the

acceptability of a custom set up by the p laintiff

was that they were Bhumidar Brahmins by caste and

under which custom more distant heirs than the

shastric heirs also joined the latter in succession

of a separate male member dying without any issue

and leaving any widow. A preliminary objection was

also raised that the appeal itself abated under the

following facts:

Plaintiff No.29 died in 1953. His widow and son

were substituted. With the coming into force of

the Hindu Succession Act, the share of the widow

in her husband’s estate became a full estate.

27

The widow, in turn, died in 1967. She left

behind her daughter and her son. The son had

already been impleaded upon the death of his

father. The decree it was pointed out was one

and indivisible and the whole appeal had abated,

upon the widow dying not having impleaded her

daughter, the whole appeal abated. This

argument was repelled after referring to all the

authorities. This Court in Harihar Prasad Singh

and Others vs. Balmiki Prasad Singh and Others

(Supra) took the view inter alia as follows:

“32. 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 first and second

plaintiffs for their one-twelfth share.

Thereafter many of the other reversioners

who were originally added as d efendants

were transposed as plaintiffs. Though the

28

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. ”

(Emphasis Supplied)

16. The last judgment we would like to refer to

is the judgment relied on by the appellants and that

is the judgment of the Constitution Bench in Sardar

Amarjit Singh Kalra (Dead) by LRS. & Ors. vs. Pramod

Gupta (Smt.)(Dead) by LRS. & Ors. 2003 (3) SCC 272.

In the said judgment the matter arose under the Land

Acquisition Act. The facts set out indicate inter

alia that a joint appeal was filed by a number of

proprietors. However, the court found that they

had distinct and independent claims. The three

different categories of claimants before the Land

Acquisition Collector were noted as follows:

29

“3. An extent of about 5500 bighas of

land described as “gair mumkin Pahar”

(uncultivable mountainous area) situated

at Masudpur Village within the Union

Territory of Delhi was acquired by the

Government for planned development of

Delhi. Notifications were issued : (1) on

24.10.1961 for acquisition of 720 bighas

and 4 biswas out o f 4307 bighas and 18

biswas under Section 4 of the Land

Acquisition Act, 1894 (hereinafter

referred to as “the Act”). It may be stated

at this stage itself that an extent of 390

bighas of land notified on 24.10.1961 and

acquired by passing the award in Awa rd

No.1944 does not form the subject -matter of

these proceedings. Declarations under

Section 6 of the Act were issued on

6.8.1966. In the course of the award

enquiry claims were filed before the Land

Acquisition Collector by three categories

of claimants as hereunder:

i) Claims by the Union of India and the

Gaon Sabha that the lands acquired

stood vested with the Gaon Sabha they

being “wasteland” under Section 7 of

the Delhi Land Reforms Act, 1954.

This claim proceeded on the basis

that not only was it `waste land' but

also the Bhumidari Certificate

issued in favour of Smt. Gulab

Sundari was invalid and non est in

law.

ii) The other class of claims were from

the Proprietors/ co-owners on the

basis that the acquired land was not

“land” as defined under Section

3(13) of the Delhi Land Reforms Act,

since they were being used for

30

non-agricultural purposes and

therefore, they neither could be

said to be “wasteland” nor could be

held to have vested in the Gaon

Sabha, for either of them to cl aim

any title to the lands in question

and, therefore, they continued to be

proprietors of the soil and as such

entitled to the compensation for

themselves.

iii) Yet another claim was from Smt. Gulab

Sundari and her transferees of

portions of the rights over the land

on the ground that she was the

Bhumidhar of the land measuring

about 4307 bighas and 18 biswas and

those lands were part of her

bhumidhari-holding out of which she

also claimed to have transferred

rights in an extent of 3500 bighas of

undivided holding in favour

of the other private respondents

claimants.”

There were three sets of appeals. This Court

proceeded to notice the entire case law. P aragraph

25 and 26 of the said judgment is extracted

hereinbelow:

“25. ……….The claim of each one was in

respect of his distinct, definite and

separate share and their respective rights

are not interdependant but independent.

Among themselves there is no conflicting or

overlapping interest and the grant of

31

relief to one has no adverse impact on the

other(s). The mere fact that there was no

division by metes and bounds on state of

ground is no reason to treat it to be a joint

right-indivisible in nature to be asserted

or vindicated only by all of them joining

together in the same proceedings, in one

capacity or the other. As a matter of fact ,

separate claims seem to have been filed by

them before the Reference Court in respect

of their own respective share. Ev en if they

have engaged a common counsel or even if

they have filed one claim in respect of

their specified separate share, it could

not have the effect of altering the nature

of their claim or the character of their

right so as to make it an indivisible j oint

right. Though the Reference Court has

decided all such claims together, having

regard to the similarity or identical

nature of issues arising for consideration

of the claims, in substance and reality the

proceedings must be considered in law to be

of multifarious claims disposed of in a

consolidated manner resulting in as many

number of awards of the Reference Court as

there were claimants before it. There was

no community of interest between them and

that each one of them in vindicating their

individual rights was not obliged to

implead the other claimants of their shares

in one common action/proceeding and the

orders/judgment though passed in a

consolidated manner, in law, amounts to as

many orders or judgments as there were

claimants and, by no reaso n, can it be

branded to be a joint and inseverable one.

Similarity of the claims cannot be a

justification in law to treat them as a

single and indivisible claim for any or all

32

purposes and such a thing cannot be

legitimately done without sacrificing the

substance to the form. The claim on behalf

of the respondents that the compensation

awarded is of a lump sum, though shares are

divided, is belied by the scheme underlying

Sections 11, 18, 30 and 31 of the Act, and

cannot be countenanced as of any merit.

Against the Award of the Reference Court in

this case, it was possible and permissible

in law for every one of the appellants to

file an appeal of his own separately in

respect of his share without any need or

obligation to implead every other of the

claimants like him, as party-respondent or

as co-appellant, because there is no

conflicting interest or claims amongst

them inter se. As such, the alleged and

apprehended fear about possible

inconsistent or conflicting decrees

resulting therefrom if the appeals a re

proceeded with and disposed of on merits

has no basis in law nor is well founded on

the facts and circumstances of these cases.

Even if the appellants succeed on merits,

dehors the fate of the deceased appellants

the decree passed cannot either be said to

become ineffective or rendered incapable

of successful execution. To surmise even

then a contradictory decree coming into

existence, is neither logic al nor

reasonable nor acceptable by courts of Law.

Otherwise, it would amount to applying the

principle of vicarious liability to

penalize someone for no fault of his and

denial of one’s own right for the mere

default or refusal of the other(s) to join

or contest likewise before the court. The

fact that at a given point of time all of

them joined in one proceedings because one

33

court in the hierarchy has chosen to club

or combine all their individual and

separate claims for the purpose of

consideration on account of the similarity

of the nature of their claims or that for

the sake of convenience they joined

together for asserting their respective,

distinct and independent claims or rights

is no ground to destroy their individual

right to seek remedies in respect of their

respective claims. In cases of this nature,

there is every possibility of one or the

other among them subsequently reconciling

themselves to their fate and settle with

their opponents or become averse to pursue

the legal battle forever so many reasons,

as in the case on hand due to

disinterestedness, indifference or

lethargy and, therefore, the attitude,

approach and resolve of one or the other

should not become a disabling or

disqualifying factor for others to

vindicate their own individual rights

without getting eclipsed or marr ed by the

action or inaction of the others ……….”

“26. Laws of procedure are meant to

regulate effectively, assist and aid the

object of doing substantial and real

justice and not to foreclose even an

adjudication on merits of substantial

rights of citizen under personal, property

and other laws. Procedure has always been

viewed as the handmaid of justice and not

meant to hamper the cause of justice or

sanctify miscarriage of justice. A careful

reading of the provisions contained in

Order 22 CPC as well as the subsequent

amendments thereto would lend credit and

34

support to the view that they were devised

to ensure their continuation and

culmination in an effective adjudication

and not to retard the further progress of

the proceedings and thereby non -suit the

others similarly placed as long as their

distinct and i ndependent rights to

property or any claim remain intact and not

lost forever due to the death of one or the

other in the proceedings. The provisions

contained in Order 22 are not to be

construed as a rigid matter of principle

but must ever be viewed as a flexible tool

of convenience in the administration of

justice. The fact that the Khata was said

to be joint is of no relevance, as long as

each one of them had their own independent,

distinct and separate shares in the

property as found separately indicate d in

jamabandi itself of the shares of each of

them distinctly……………”

Thus, the Court highlighted the need to app ly laws

of procedure in a manner so that substantial justice

is facilitated. The Court further held as follows:

“30. The question, therefore, as to

when a proceeding before the Court becomes

or is rendered impossible or possible to be

proceeded with, after it had partially

abated on account of the death of one or the

other party on either side has been always

considered to depend upon the fact as to

whether the decree obtained is a joint

decree or a severable one and that in case

35

of a joint and inseverable decree if the

appeal abated against one or the other, the

same cannot be proceeded with further for

or against the remaining parties as well.

If otherwise, the decree is a joint and

several or separable one, being in

substance and reality a combination of many

decrees, there can be no impediment for the

proceedings being proceeded with among or

against those remaining parties other than

the deceased. As observed in Nathu Ram case

(supra) itself, the Code does not itself

provide for the abatement of the appeal

against the other respondents even where,

as against one such it has abated but it is

only the courts which have held that in

certain circumstances the appeal also

would abate against a co -respondent as a

result of abatement against the deceased

respondent. The same would be the position

of an appeal vis-a-vis the appellants, as

in the other cases. Order 22 Rule 4 also was

considered not to provide for abatement of

the appeal(s) against the co -respondents

of the deceased respondent and it was

specifically observed therein that to say

that the appeals against them also abated

in certain circumstances is not a correct

statement. It was held that the appeals

against such other respondents cannot be

proceeded against and, therefore, had to be

dismissed, in certain circumstances .”

(Emphasis Supplied)

“34. In the light of the above discussion,

we hold: -

(1) Wherever the plaintiffs or appellants

or petitioners are found to have distinct,

36

separate and independent rights of their

own and for 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

37

decided, for the purposes of abatement or

dismissal of the entire appeal as not being

properly and duly constituted or rendered

incompetent for bei ng further proceeded

with, requires to be determined only with

reference to the fact as to whether the

judgment/decree passed in the proceedings

vis-a-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.”

(Emphasis Supplied)

17. Is this a case when the appellant and his

brother were having distinct and independent claims

and rights and for the sake of convenience they had

joined as plaintiffs originally in the suit and as

appellants subsequently in the appeal? Is this a

case where there is joint decree or is it is a case

where the decree is severable? Is it therefore a

severable decree or a combination of two decrees?

Whether the decree if passed by the appellate court

38

in favour of the appellant would result in a decree

which is contradictory to the decree passed by the

trial Court.

18. In this case, undoubtedly as we have noted

the appellant and his late brother sued as

plaintiffs for a declaration that the first

defendant was not the adopted son and he has no

rights. They also sought a prohibitory injunction.

The suit stood dismissed by trial court. Let us

take the converse position. Assuming that the suit

was decreed by the trial court and appeal was carried

by the defendants, and pending the appeal by the

defendants, if the late brother of the appellant had

died and if the defendants had not implea ded the

legal representatives of late brother and the appeal

abated as against him, would it then not open to the

appellant as respondent in the appeal to contend

39

that if the appeal was to be allowed to proceed in

the absence of the legal representatives of his late

brother and succeed, there would be an inconsistent

decree. On the one hand, there will be a decre e by

the trial Court declaring that the first defendant

was not the adopted son and had no interest in the

property qua the late brother of the appellant. On

the other hand, the appellate court co uld be invited

to pass a decree which should be to the effe ct that

the first defendant was found to be the adopted son

and had right and interest over the property and a

declaration to that effect would have to be granted.

Would not the appellate court then have to

necessarily hold though the decree in favour of the

deceased brother of the appellant has become fin al,

and under it, a declaration is granted that the

defendant No.1 is not the adopted son and he has no

right to claim the property and there is an

40

injunction against him that he is the adopted son

opposed to the decree which has been passed by the

trial court which has attained finality . We would

think that the appellate court would indeed have to

refuse to proceed with the appeal on the basis that

allowing the appeal by the defe ndants would lead to

an appellate decree which is inconsistent with the

decree which has become final as against the

deceased brother of the appellant.

19. We would think that the situation cannot be

any other different , when we contemplate the

converse of the aforesaid scenario which happens to

be the factual matrix obtaining in this case . The

right which was set up by the appellant alongwith

his late brother was joint. They were members of

the joint Hindu family consisting of their late

father and which consisted of late Govinda reddi,

41

their father Shriram Reddy and Basava reddi, who was

none other than the husband of the second defendant.

This is not a case where their claims were distinct

claims. This is not the situation which was present

in the case dealt with by the Constitution Bench

under the land acquisition case. Therein, several

persons came together and sought relief in one

proceeding. We would think that this is not the

position in this case.

20. It may be true that if a separate suit ha d

been filed by the late brother and it had abated on

his death, there will be no decree on merits and the

suit would have abated. No doubt, it could be argued

that even though the appellant and his late brother

set up the case of joint right, it would only mean

that they are co -owners of the property, and

therefore, they had independent rights as co-owners

42

which could be canvassed in two different

proceedings, and therefore, the decree of the trial

court dismissing the suit be treated as two

different decrees - one decree against the appellant

and the other against his late brother . Even then,

the decree, which the High court would be invited

to pass, would be contradictory and inconsistent

with the decree as against late brother of the

appellant which may not be permissible in law.

21. The decree, which the appellant , if

successful in the appeal , would obtain, would be

absolutely contrary to the decree which has also

attained finality between his late brother and the

defendants. They are mutually irreconcilable,

totally inconsistent. Laying one side by side, the

only impression would be that one is in the teeth

43

of the other. In one, the suit is dismissed whereas

in the other, the suit would have been decreed.

22. The argument that in view of the order passed

on 10/09/2001 by which despite the death of late

brother of the appellant, permission to pr osecute

the appeal was granted by the court there would arise

an estoppel against the order being passed holding

that the appeal has abated as a whole, cannot be

accepted. The impact of death of the late brother

of the appellant qua the proceeding is one arising

out of the incompatibility of a decree which has

become final with the decree which the appellant

invites the appellate court to pass. In such

circumstances, the mere fact that the appellant was

permitted to prosecute the appeal by an

interlocutory order would not be sufficient to tide

over the legal obstacle posed by the inconsistent

44

decree which emerges as a result of the failure to

substitute legal representative of the late brother

and the abating of the appeal filed by his late

brother. Consequently, we see no merit in the

appeal. It is accordingly dismissed.

…………………………………………J.

(Ashok Bhushan)

………………………………………J.

(K.M. Joseph)

New Delhi;

May 07, 2019