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Chintaman Nilkant and anr. Vs. Gangabai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1904)ILR27Bom184
AppellantChintaman Nilkant and anr.
RespondentGangabai and ors.
Excerpt:
practice - procedure--civil procedure code (act xiv of 1882), sections 362, 544 and 582--appeal--death of joint appellant pending appeal--legal representatives of deceased appellant not brought on the record--appeal proceeded with by surviving appellant--power of court to hear the appeal and reverse whole decree. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a will, he is said to have bequeathed 50% of his property to s and 50% to j ..........to deal with the decree passed against gangabai.2. no doubt under sections 362 and 582, civil procedure code, the appeal abated so far as gangabai was concerned, but under section 544, civil procedure code, anpurnabai had a right to appeal independently of the provisions of section 362 and 582 of the civil procedure code, if her defence was common to her and gangabai, and the mere fact of her having been joined with gangabai would not take away her right to appeal. it was held in chandarsang v. khimabhai (1897) 22 bom. 718, that 'decree having been passed against the defendants, it was open to any one of them to appeal against it if the ground of appeal was common to all defendants and it was open to the lower appellate court to deal with the appeal under section 544.'3. no.....
Judgment:

Chandavarkar, J.

1. The first point urged in this appeal is that Gangabai having died and no legal representative of hers having been brought on record the appeal abated, and that, therefore the Appellate Court had no jurisdiction to deal with the decree passed against Gangabai.

2. No doubt under Sections 362 and 582, Civil Procedure Code, the appeal abated so far as Gangabai was concerned, but under Section 544, Civil Procedure Code, Anpurnabai had a right to appeal independently of the provisions of Section 362 and 582 of the Civil Procedure Code, if her defence was common to her and Gangabai, and the mere fact of her having been joined with Gangabai would not take away her right to appeal. It was held in Chandarsang v. Khimabhai (1897) 22 Bom. 718, that 'decree having been passed against the defendants, it was open to any one of them to appeal against it if the ground of appeal was common to all defendants and it was open to the lower Appellate Court to deal with the appeal under Section 544.'

3. No doubt in the lower Appellate Court the appeal that was heard was the appeal of Anpurnabai, but in dealing with that appeal it was 5 open to the lower Appellate Court to hear and deal with the whole suit if the defence was common.

4. The second point urged is as to the appreciation of evidence. The finding of the lower Appellate Court on this point is binding on us. Decree confirmed with costs.


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