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.
Print Page
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.
