Sunday, 30 December 2018

Whether court should dismiss appeal in entirety if there is death of some of defendants?

 Order 22 Rule 4, CPC lays down that where within the time
limited by law, no application is made to implead the legal
representatives of a deceased defendant, the suit shall abate as
against a deceased defendant. This rule does not provide that by
the omission to implead the legal representative of a defendant,
the suit will abate as a whole. If the interests of the codefendants
are separate, as in the case of coowners,
the suit will
abate only as regards the particular interest of the deceased
party. In such a situation, the question of the abatement of the
appeal in its entirety that has arisen in this case depends upon
general principles. If the case is of such a nature that the
absence of the legal representatives of the deceased respondent
prevents the court from hearing the appeal as against the other
respondents, then the appeal abates in toto. Otherwise, the
abatement takes place only in respect of the interest of the
respondent who has died. The test often adopted in such cases
is whether in the event of the appeal being allowed as against the
remaining respondents there would or would not be two
contradictory decrees in the same suit with respect to the same

subject matter. The court cannot be called upon to make two
inconsistent decrees about the same property, and in order to
avoid conflicting decrees the court has no alternative but to
dismiss the appeal as a whole. If on the other hand, the success
of the appeal would not lead to conflicting decrees, then there is
no valid reason why the court should not hear the appeal and
adjudicate upon the dispute between the parties. In the matter
on hand, the absence of certain defendants who have been
deleted from the array of parties along with the absence of legal
representatives of a number of deceased defendants will prevent
the court from hearing the appeals as against the other
defendants. We say so because in the event of these appeals
being allowed as against the remaining defendants, there would
be two contradictory decrees in the same suit in respect of the
same subject matter. One decree would be in favour of the
defendants who are deleted or dead and whose legal
representatives have not been brought on record; while the other
decree would be against the defendants who are still on record in
respect of the same subject matter. The subject matter in the
suit is the validity of the two Wills. The Courts including the
Division Bench of the High Court have consistently held that the

two Wills are proved, and thus Veeraswamy being the beneficiary
under the two Wills had become the absolute owner of the suit
properties in question. Such decree has attained finality in favour
of the defendants who are either deleted or dead and whose legal
representatives have not been brought on record. In case these
appeals are allowed in respect of the other defendants, the decree
to be passed by this Court in these appeals would definitely
conflict with the decree already passed in favour of the other
defendants. As mentioned supra, the Court cannot be called
upon to make two inconsistent decrees about the same subject
matter. In order to avoid conflicting decrees, the Court has no
alternative but to dismiss the appeals in their entirety (see the
judgment of this Court in the case of Shahazada Bi vs. Halimabi,
(2004) 7 SCC 354).

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 43804382
OF 2016

SUNKARA LAKSHMINARASAMMA  Vs SAGI SUBBA RAJU & OTHERS ETC
MOHAN M. SHANTANAGOUDAR, J.
Dated:NOVEMBER 28, 2018.

These appeals are directed against the common judgment in
Letters Patent Appeal No. 323 of 1992 and Appeal Nos. 2959 and
2960 of 2001 dated 11 September, 2003 passed by the High
Court of Judicature of Andhra Pradesh at Hyderabad. The
appellants herein were the plaintiffs in O.S. No. 98 of 1984 on the
file of the Subordinate Judge, Bhimavaram (formerly O.P.
1
No.124/1980), and O.S. No. 97 of 1984 on the file of the
Subordinate Judge, Bhimavaram (formerly O.P. No.10/1982).
They were the defendants in O.S. No. 72 of 1983 on the file of the
Subordinate Judge, Bhimavaram (formerly O.P. No.32/1978 on
the file of the Subordinate Judge, Narsapur).
2. O.S. No. 98 of 1984 was filed for partition of Schedule A
property against Defendant Nos. 5 to 25. In this suit, only one
alienation made by Veeraswamy (the plaintiff
Lakshminarasamma’s son) was assailed, though Veeraswamy
had alienated various other properties through different sale
deeds falling under Schedule A. O.S. No. 97 of 1984 was filed for
partition of Schedule A and B properties as well as for eviction of
Defendant Nos. 26 to 125 and 127 from the said properties. O.S.
No. 72 of 1983 was filed by one Sagi Subba Raju (one of the
respondents in these appeals) for specific performance of an
agreement of sale dated 19.09.1974 executed by the late
Veeraswamy covering an extent of 3 acres 56 cents in Revenue
Survey Nos. 347 and 347/3 of Bhimavaram village.
O.S. Nos. 97 of 1984 and 98 of 1984 (for partition of
Schedule A and B properties) were dismissed by the trial Court
and confirmed by the first appellate Court. O.S. No. 72 of 1983
2
(suit for specific performance) was decreed partly, directing sale
of 1/3rd of the property in favour of the plaintiff Sagi Subba Raju,
and such decree was confirmed by the first appellate Court.
Feeling aggrieved by these judgments and decrees, the
unsuccessful appellants filed appeals before the High Court. So
also, Sagi Subba Raju, who was to get 1/3rd of the property in
the suit for specific performance filed L.P.A. No. 323 of 1992
before the High Court. All these appeals were heard together by
the High Court and decided against the appellants herein, which
means that the judgments and decrees of dismissal passed in
O.S. Nos. 97 & 98 of 1984 were confirmed by the Division Bench
of the High Court also. Thus, there are concurrent findings of
three Courts in respect of those two suits filed by appellants for
partition against the appellants herein. In respect of O.S. No. 72
of 1983 also, the Division Bench proceeded to grant a decree, as
prayed for, in favour of Sagi Subba Raju and against the
appellants herein. In other words, the suit for specific
performance also was decreed fully against the appellants herein.
Hence, the appellants are before this Court.
3. Shri A. Subba Rao, learned advocate appearing on behalf of
the appellants, taking us through the material on record,
3
submits that the Courts below were not justified in concluding
that the bequests (Wills) relied upon by the defendants, i.e. Will
dated 14.08.1932 (Exhibit B4/Ex.P1) in respect of Schedule A
property and the Will dated 05.10.1968 (Exhibit B106/Ex. P2) in
respect of Schedule B property executed for the benefit of
Veeraswamy, were proved; that the plaintiffs have got 2/3rd share
in the suit properties and therefore the bequests (Exhibits B4 and
B106) will not confer any right to the beneficiary in excess of
remaining 1/3rd of the properties. Lastly, he submitted that the
Defendant Nos. 5 to 125 & 127, being the purchasers of the
properties from Veeraswamy (in whose favour the Wills were
executed), are liable to be evicted inasmuch as Veeraswamy did
not have any right, title or interest over the suit properties to the
full extent, on the other hand, Veeraswamy had only 1/3rd share
in the suit properties.
4. Per contra, learned counsel appearing on behalf of the
respondents contends that the judgment of the Division Bench of
the High Court is just and proper and needs no interference. The
trial Court, the first appellate Court and the Division Bench of
the High Court have held that Exhibit B4 and Exhibit B106 are
proved in accordance with law and consequently Veeraswamy
4
became the owner of the property from the said Wills. He further
submitted that the defendants/purchasers have been in peaceful
possession of the suit properties for more than 40 to 50 years
and some of the defendants have even alienated the properties to
third parties. Lastly, he submitted that the appeals are not
maintainable since a number of defendants (purchasers from
Veeraswamy) were deleted from the array of parties by the
appellants herein, and some of the defendants have died during
the pendency of the suits as well as the first appeals and second
appeals and their legal representatives were not brought on
record by the appellants herein. Even before this Court, some of
the defendants/respondents have expired. The appellants have
not bothered to bring on record the legal representatives of such
deceased defendants. As a result, the decree passed in favour of
the deceased and deleted defendants holding that Veeraswamy
had the right to sell the property has attained finality, and
consequently the sales made in favour of such defendants have
attained finality too. In other words, the validity of the Wills as
well as that of the sale deeds stands confirmed in respect of the
deceased/deleted defendants and therefore these appeals, which
are pending consideration in respect of other defendants before
5
this Court, are liable to be dismissed in view of the fact that in
case any order is passed adverse to the interest of the
respondents herein/remaining defendants, the same would be
conflicting with the judgments and decrees which are already
confirmed as against the deceased/deleted defendants.
5. Exhibit B4, the Will dated 14.08.1932, pertains to Schedule
A property. The said Will was executed by Sunkara
Padmanabhudu, who was admittedly the owner of the Schedule A
properties. He had no issue. His wife also expired shortly after
his death. The beneficiary under the said Will was Veeraswamy,
who is none other than the grandson of Sunkara
Venkataramaiah (the brother of Sunkara Padmanabhudu).
Exhibit B106, the Will dated 05.10.1968 pertains to Schedule B
property. The said Will was executed by Laxmipathi (the father of
Veeraswamy) in favour of his son Veeraswamy. Sunkara
Padmanabhudu expired on 20.08.1932 and Laxmipathi died on
21.01.1969. Thus, Veeraswamy became the owner of Schedule A
and B properties, after the demise of Sunkara Padmanabhudu
and Laxmipathi. There is nothing on record to show that the
properties in Schedule B were the joint properties of Laxmipathi
and his son. So also, it is not established by the plaintiffs that
6
Schedule B properties were available for partition. There are
concurrent findings of three Courts on the said point against the
appellants/plaintiffs in partition suits. The plaintiff
Laxminarasamma is the second wife of Laxmipathi, who has not
specifically questioned the alienations made by her son
Veeraswamy in favour of Defendant Nos. 5 to 125 by filing O.S.
Nos. 97 & 98 of 1984. There is no prayer by her for getting the
sale deeds cancelled. All the three Courts concurrently on facts
have concluded that both the Wills are proved. Even before us,
the findings of the validity of the Wills etc. have not been
seriously disputed by the appellants. Even otherwise, on going
through the judgments of the three Courts, we find that the
reasons assigned and the conclusions arrived at in respect of
proof of both the Wills are just and proper. Hence, no
interference is called for.
6. Since Veeraswamy was the sole owner of the properties by
virtue of Exhibits B4 and B106 Wills, naturally he had the right
to alienate the properties. Defendant Nos. 5 to 125 and 127 had
purchased the properties for valuable consideration from
Veeraswamy. As mentioned supra, the alienations made in favour
of these defendants/purchasers were not questioned by the
7
appellants in the aforementioned two suits for partition. Be that
as it may, since we find that the Courts below are justified in
concluding that the sales made in favour of Defendant Nos. 5 to
125 and 127 are just and proper and as they are bona fide
purchasers for valuable consideration, no interference is called
for.
7. Shri A. Subba Rao, learned counsel for the appellants was
however forceful in his arguments, insofar as the suit for specific
performance is concerned. According to him, the appellants
herein (defendants in the suit for specific performance) would be
put to hardship if the decree for specific performance is
confirmed, inasmuch as there has been a huge escalation in the
price of the properties since the agreement of sale. Such plea of
escalation in price cannot be accepted in view of the fact that the
appellants in the first instance do not have the right to question
the agreement of sale. As mentioned supra, since Veeraswamy
was the absolute owner of the properties including the property
involved in the suit for specific performance, he had the right to
enter into an agreement of sale also. This property was
bequeathed to Veeraswamy under Exhibit B4 Will by
Padmanabhudu. Hence, Veeraswamy was the sole owner of the
8
property. Consequently, he had entered into an agreement of
sale with Sagi Subba Raju, as far back as on 19.09.1974. The
suit was filed in the year 1978, which was later transferred to
another Court and the same was renumbered
as O.S. No. 72 of
1983. Since 1978, this litigation is being fought by the
prospective vendee. The property of about three and half acres
was agreed to be sold by Veeraswamy in favour of the prospective
vendee in the year 1974 for a sum of Rs.51,000/. Such price was
agreed to between the vendor as well as the prospective vendee.
This Court cannot imagine the value of the property as it stood in
the year 1974 in the said area, i.e. at Bhimavaram village in
Andhra Pradesh. Be that as it may, we find that hardship was
neither pleaded nor proved by the appellants herein before the
trial Court. No issue was raised relating to hardship before the
trial Court. A plea which was not urged before the trial Court
cannot be allowed to be raised for the first time before the
appellate Courts. Moreover, mere escalation of price is no ground
for interference at this stage (see the judgment of this Court in
the case of Narinderjit Singh vs. North Star Estate Promoters
Limited, (2012) 5 SCC 712). Added to it, as mentioned supra, the
appellants do not have the locus standi to question the judgment
9
of the Division Bench since they are not the owners of the
property. As a matter of fact, Veeraswamy, the vendor of the
properties, had entered the witness box before the trial Court and
supported all his alienations in favour of the defendants.
Therefore, in our considered opinion, the Division Bench has
rightly concluded in favour of Sagi Subba Raju and against the
appellants and granted the decree for specific performance.
8. In any event, Shri Thomas P. Joseph, learned senior
advocate appearing on behalf of the respondents is justified in
contending that these appeals are not maintainable since a
number of defendants against whom the relief is sought/claimed
have either been deleted from the array of parties, or are dead.
The legal representatives of such deceased defendants have not
been brought on record. Even before this Court, Respondent
No.7 (D8), Respondent No.8 (D9), Respondent No.9 (D10) and
Respondent No.11 (D13) in Civil Appeal No. 4382/2016 @ SLP(C)
No. 20376/2004 have died. Their legal representatives have also
not been brought on record. It is relevant to note here itself that
Defendant Nos. 4, 6, 36, 50, 54, 58, 67, 69, 73, 77, 82, 92, 93,
113, 120 and 127 expired during the pendency of the matter
before the trial Court in O.S. No. 97 of 1984. So also, Defendant
10
Nos. 20, 53, 64 and 118 have also died and their legal
representatives have also not been brought on record.
9. Order 22 Rule 4, CPC lays down that where within the time
limited by law, no application is made to implead the legal
representatives of a deceased defendant, the suit shall abate as
against a deceased defendant. This rule does not provide that by
the omission to implead the legal representative of a defendant,
the suit will abate as a whole. If the interests of the codefendants
are separate, as in the case of coowners,
the suit will
abate only as regards the particular interest of the deceased
party. In such a situation, the question of the abatement of the
appeal in its entirety that has arisen in this case depends upon
general principles. If the case is of such a nature that the
absence of the legal representatives of the deceased respondent
prevents the court from hearing the appeal as against the other
respondents, then the appeal abates in toto. Otherwise, the
abatement takes place only in respect of the interest of the
respondent who has died. The test often adopted in such cases
is whether in the event of the appeal being allowed as against the
remaining respondents there would or would not be two
contradictory decrees in the same suit with respect to the same

subject matter. The court cannot be called upon to make two
inconsistent decrees about the same property, and in order to
avoid conflicting decrees the court has no alternative but to
dismiss the appeal as a whole. If on the other hand, the success
of the appeal would not lead to conflicting decrees, then there is
no valid reason why the court should not hear the appeal and
adjudicate upon the dispute between the parties. In the matter
on hand, the absence of certain defendants who have been
deleted from the array of parties along with the absence of legal
representatives of a number of deceased defendants will prevent
the court from hearing the appeals as against the other
defendants. We say so because in the event of these appeals
being allowed as against the remaining defendants, there would
be two contradictory decrees in the same suit in respect of the
same subject matter. One decree would be in favour of the
defendants who are deleted or dead and whose legal
representatives have not been brought on record; while the other
decree would be against the defendants who are still on record in
respect of the same subject matter. The subject matter in the
suit is the validity of the two Wills. The Courts including the
Division Bench of the High Court have consistently held that the

two Wills are proved, and thus Veeraswamy being the beneficiary
under the two Wills had become the absolute owner of the suit
properties in question. Such decree has attained finality in favour
of the defendants who are either deleted or dead and whose legal
representatives have not been brought on record. In case these
appeals are allowed in respect of the other defendants, the decree
to be passed by this Court in these appeals would definitely
conflict with the decree already passed in favour of the other
defendants. As mentioned supra, the Court cannot be called
upon to make two inconsistent decrees about the same subject
matter. In order to avoid conflicting decrees, the Court has no
alternative but to dismiss the appeals in their entirety (see the
judgment of this Court in the case of Shahazada Bi vs. Halimabi,
(2004) 7 SCC 354).
10. In view of the above, the appeals fail not only on the ground
of nonmaintainability,
but also on merits, and are dismissed.
……………………………J
[ N.V. RAMANA]
…......……………………J
13
[MOHAN M. SHANTANAGOUDAR]
NEW DELHI; ……………………………J.
NOVEMBER 28, 2018. [MUKESHKUMAR RASIKBHAI SHAH]
14
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