1. This appeal is connected with the Execution First Appeal No. 281 of 1923. They have arisen under the following circumstance:
Four persons Puran Singh, Lekhraj Singh, Amar Singh and Pirthi Singh instituted a suit for pre-emption against Wajid Ali Khan who had purchased a property and who is the appellant in appeal No. 202 of 1923. The suit succeeded in the Court of first instance and a decree was made in favour of the plaintiffs on 20th February, 1921. The consideration money was directed to be paid within one month of the decree becoming final and was actually deposited in Court on 22nd June, 1921. Wajid Ali filed an appeal to this Court on 30th March, 1921. Amar Singh died pending the appeal on 12th January, 1922. The first appeal in this Court was heard in ignorance of the fact that Amar Singh was dead, and a decree was made on 18th January, 1923, reversing the decree of the Court of first instance. Before the appellate decree was made, the pre-emptors on payment of the consideration money had obtained delivery of possession over the pre-empted property. Wajid Ali on his success in appeal, applied for restoration of possession and it appears that, by an ex parte order, he was restored to possession on the 2nd of February, 1923. Thereupon, the plaintiffs Puran Singh, Lekhraj Singh and Pirthi Singh arid the representatives of the deceased plaintiff Amar Singh made an application on the 16th of February, 1923, in the Court of first instance asking that, they should be restored to possession. Their case was that Amar Singh having died pending the appeal the decree passed by the High Court was a nullity and therefore Wajid Ali got nothing by the decree made by the High Court in his favour.
2. The Court of first instance held that the sons of Amar Singh were entitled to keep possession of the entire property it the three surviving plaintiffs agreed that the entire consideration money might be taken as having bean deposited by the heirs of Amar Singh.
3. Wajid Ali, the vendee, has appealed, his appeal being No 202 of 1923. In this appeal the three surviving plaintiffs filed a cross objection, but they did not pay the Court-fee payable on the same, and their objection should be deemed to have been rejected. It appears that under the decisions of this Court under certain circumstances, it is cheaper to file an appeal than to file a cross-objection, and accordingly the three surviving plaintiffs Puran Singh and others filed the Appeal No. 281 of 1923,
4. Mr. P.L. Banerji appearing for the three surviving plaintiffs tells us that, his clients are willing to have the entire money credited as paid by Amar Singh, and that the order passed by the Court below may be taken as effective. The case of the surviving plaintiffs, however, is that the whole appellate decree is a nullity and therefore the entire decree made by the Court of first instance should stand, giving all the four plaintiffs in the Court of first instance the fruits of the decree, unhampered by the decree made by the High Court.
5. On behalf of Wajid Ali Khan it has been contended that the result of not bringing on the record the heirs of Amar Singh was simply this, that the decree of this Court reversing the decree of the Court of first instance stood in respect of three-fourths of the property and was a nullity in respect of the share of Amar Singh.
6. It is common ground that the decision of the question raised between the parties depends on the effect of the provisions made in Order 22 of the Civil Procedure Code. The argument on behalf of the surviving plaintiffs is that if the fact that Amar Singh was dead had been brought to the notice of the High Court, the High Court would have been bound to declare that the whole appeal had abated and could not proceed to determine the appeal on its merits. The contention of Wajid Ali is that the abatement would have been declared with respect to She interest of the deceased Amar Singh alone and not with respect to the interest of any of the remaining plaintiffs-respondants.
7. Order 22, Rule 1 of the Civil Procedure Code declares that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. The expression 'right to sue' has not been defined any where in the Civil Procedure Code, but I take it that the expression means a right to ask for relief whether in the Court of first instance or in the Court of appeal. Rule 2 lays down that whore there are more plaintiffs or more defendants than one, and any of them dies, and the right to sue survives either in favour of the remaining plaintiff or plaintiffs or against the remaining defendant or defendants alone an entry will be made by the Court that a party is dead and it will proceed with the disposal of the case before it. Rule 3 says that where the sole plaintiff or sole surviving plaintiff or one of two or more plaintiffs dies and the right to sue survives in favour of the legal representatives as well, the legal representative of the deceased plaintiff will be brought on the record. The penalty of not bringing the legal representative of the deceased plaintiff is specifically declared, and it is this, namely the suit shall abate so far as the deceased plaintiff is concerned Rule 4 applies to the case of defendants, and provides that where the sole defendant or sole surviving defendant die3 arid the right to sue survives against the legal representative as well, the legal representative of the deceased shall be brought on the record. The penalty of not bringing the legal representative on the record would be that the suit would abate as against the deceased defendant. The provision as to defendants and plaintiffs is to be adapted to the case of an appeal a3 provided in Rule 11. of the order. The sum total of all the provisions in Rules. 1 to 4 seems to me to be this. Where the right to sue survives in favour of or against the legal representatives as well, and there are more parties than one, the result of not bringing on the record of the legal representative of the deceased party is this and this only, that the suit or appeal would abate as against the deceased party. It is nowhere laid down in the Code of Civil Procedure, as re-enacted in 1908 that the whole of the appeal will fail if the legal representative of the deceased party be not brought on the record. The addition of the words 'as far as the deceased plaintiff is concerned' or the words 'as against the deceased defendant' to the Code of 1908 clearly indicates that, the abatement can take effect as against the deceased party only, and the abatement shall not affect the entire case before the Court. The main point is whether the right to sue survives or not. If the right to sue does not survive, then and then alone the whole case may go.
8. Where the language of law is simple and there in no ambiguity, it is not open to look to the reason of the rule. But there can be no doubt that, the legislature acted on a well defined policy in altering the law in 1908. They expressly enacted (Order 1, Rule 9) that no suit should fail for misjoinder or non-joinder of parties, and directed the Courts to decide the case as between parties on the record. The same policy, in ray opinion, is responsible for the rule that only a part of the suit or appeal should abate and not the whole of it.
9. Now applying the rule of law as discussed above to the facts of the present case we find that when Amar Singh died ho had already become entitled to a quarter sharein the property subject to the result of the appeal. Indeed, he had completed his title under the decree by deposit of the consideration money along with his co plaintiffs. It goes without saying that the plaintiffs is a pre-emption suit claim under their individual titles, and in the present case, the four plaintiffs could have instituted four different suits, one for each plaintiff, in the case of their success, the Court would have divided the property among the four plaintiffs. In that case, however, there would have been this further provision that, if one party failed to pay his share of the purchase money, the other rival plaintiffs would be entitled to pay the same. In the present case the four plaintiffs agreed to take the property among themselves, and it must be taken that each of the plaintiffs was entitled under the decree to a fourth share in the property. When, therefore, Amar Singh died he was, subject to the result of the appeal, entitled to a fourth share in the property. If the appellant Wajid Ali Khan wanted to contest the appeal as against Amar Singh's legal representatives, he was bound to bring them on the record and to argue the appeal in their presence. The death of Amar Singh did not result in the death of the right to sue ' because Amar Singh had already obtained a decree in his favour. In a preemption suit when a plaintiff dies, the question whether his son or other legal representative can be brought on the record or not depends on good many circumstances. Where, for example, a plaintiff claims a preferential right of purchase over the vendee, on his death, his son cannot be brought on the record unless ha also in his personal right is entitled to preempt as against the vendee: see Partab v. Daulat (1914) 36 All. 63. But where a decree has already been passed and an interest in the property has bean acquired, the question of the personal right of the legal representative of a deceased plaintiff, in a pre-emption appeal does not arise. Anybody who would succeed to the property of the deceased would be entitled to be brought on the record. Thus, it is perfectly clear that the 'right to sue,' so far as the appeal went, did survive not only against the surviving plaintiffs-respondents but also against the legal representative of the deceased plaintiff-respondent. The result of not bringing the legal representatives of Amar Singh on the record in appeal would simply be this that, the appeal would abate as against Amar Singh. The appeal would continue to be good as against the surviving plaintiffs-respondents. In this view of the law the legal representatives of Amar Singh would be entitled to take back possession with respect to one-fourth share of the proparty, and the application of the surviving plaintiffs would be liable to be dismissed. For the decree of the High Court would not be a nullity but would be binding on the surviving plaintiffs-respondents.
10. Now I shall consider the authorities cited at the bar. The learned Counsel for Puran Singh and others, the surviving plaintiffs, referred us to several cases. The first one is Imamudin v. Sadabarat (1910) 32 All. 301. In this case the person who had died pending the appeal was one of the vendees, and it was held that as his legal representative had not been brought on the record, the decree that was passed in appeal was a nullity. In the judgment it is expressly stated that, it was admitted at the Bar that the suit was one in which the cause of action did not continue against the surviving defendants alone and it was necessary to bring on the record, the representatives of the deceased respondent. It is clear in that case that the suit being one for pre-emption the plaintiffs could succeed, if at all, only with respect to the whole property. As one of the vendees was dead and his legal representative was not brought on the record, the decree, if held good, could have only resulted as being against a part only of the pre-empted property. That this is the effect of this ruling was recognized in the case of Ambiha Prasad v. Jhanak Singh A.I.R. 1923 All. 211. At page 94 of the report occurs the following expression of opinion:
It might, however, be argued on behalf of Ambika Prasad that the principle underlying that decision (32 All. 301) does not apply to this appeal, inasmuch as the decree against the vendees could not be split up as the shares of vendees perhaps were not specified in the sale-deed.
11. It may also be pointed out that the decision in 32 Allahabad depended on the interpretation of the law as it stood before the Code of 1908 was enacted.
12. In the case before us, as I have already indicated, one of the four pre-emptors, who had definitely got each a fourth share in the property, died and the case in 32 Allahabad therefore has no application. The rule that there cannot be pre-emption of a part of the property exists for the benefit of the vendae and cannot be used to his disadvantage. He may say 'well, if my appeal cannot succeed with respect to one-fourth share, let it succeed with respect to the rest, three-fourth share.' In the casa of Ambiha Prasad v. Jhanak Singh A.I.R. 1923 All. 211 it appears that only one of three plaintiffs filed an appeal, and he stated that he was filing the appeal not only on his own behalf but also on behalf of his co-plaintiffs. These co-plaintiffs were not made parties in the appeal. One of them Hubadar died pending the appeal. The appeal was decreed by the High Court. When the successful plaintiffs-appellants tried to take possession, it was contended for the purchaser that the decree of the High Court was a nullity and could not be executed. This Court held, on the authority of a Calcutta case Balram Pal v. Kanyasha Majhi (1919) 53 I.C. 548 that where one of several joint plaintiffs died and his lagal representative was not brought on the record, the suit and the appeal must fail. I have looked through the Calcutta ease, and I do not think that it can bear the weight of a broad proposition like this. It is clear, however, that in the case of Ambiha Prasad v. Jhanak Singh A.I.R. 1923 All. 211 the decision did not turn on the peculiar incidents of a pre-emption case. As against these two cases cited by the learned Counsel for the surviving plaintiffs we have the case of Imdad Ali v. Jugan Lal (1894) 17 All. 478 decided by two learned Judges of this Court, namely, Sir John Edge. C.J. and Banerji, J. In that case it was found that of two persons against whom a decree had been made one had died before the decree was passed. It was held that the decree could be executed against the property of the person who was surviving but not against the property of the deceased parson. This casa was considered and approved of by Chief Justice Richards and Banerji, J. in the ease of Sripat Narain Rai v. Tribeni Mist a (1918) 40 All. 423,
13. In this conflict; of authority, indeed, if there be any conflict at all, I would prefer to follow the cases of Imdad Ali v. Jagan Lal (1894) 17 All. 478 and Sripat Narain v. Tribeni Misra (1918) 40 All. 423 to the case o Ambiha, Prasad v. Jhanak Singh A.I.R. 1923 All. 211.
14. I need hardly point out that my reading of the law is consistent with the rulings I propose to follow.
15. The result is that I would modify the decree of the Court below and restore A mar Singh's legal representatives to the possession of only one quarter share in the pre-empted property and would dismiss the Appeal No. 281 of 1923 of the surviving plaintiff's Puran Singh, Lekhraj Singh and Pritshi Singh. The cross-objection of Puran and others in Appeal No. 202 of 1923 must be rejected.
16. Wajid Ali Khan was the purchaser in a pre-emption suit brought by Puran Singh, Lekhraj Singh, Amar Singh and Prithi Singh for pre-emption of a complete revenue paying mahal. A decree was passed on 28ish February, 1921, jointly in favour of all the four plaintiffs without specification of shares conditional on their depositing Rs. 2,173 and odd for payment to Wajid Ali Khan. The following dates may be quoted in tabular form:
18th March, 1921. Appeal to the High Court by Wajid Ali Khan against the four plaintiff's.
22nd June, 1921. The plaintiffs deposited in Court amount as directed in the decree.
30th June, 1921. Plaintiffs took possession through Court.
12fch January, 1922. Plaintiff Amar Singh died,
18fch January, 1923. The decree of 1st Court reversed by the High Court.
2nd February, 1923. Wajid Ali restored to possession.
17. On 16th February. 1923, the hairs of Amar Singh - his two sons and the other plaintiffs applied to be put again in possession on the ground that the decree of the High Court having been passed after the death of Amar Singh and without his legal representatives being brought on the record was a nullity. The lower Court dismissed the objection of the three surviving plaintiffs but directed possession to be made over to Amar Singh's sons 'provided the purchase-money already deposited in Court is consented to go to the opposite party by all the objectors,'
18. Both Wajid Ali and the three surviving plaintiffs have appealed separately. This is the appeal of Wajid Ali. The reasoning of the lower Court does not satisfy me. The learned Judge held that the appeal against three out of four plaintiffs was competent and that the decree thereunder was binding on them. If so, Amar Singh's sons can retain or receive back 1/4th of the property or property commensurate with Amar Singh's share of the money deposited in Court according to agreement between the four pre-emptors. It is true as observed by the lower Court that Amar Singh alone could have preempted the entire property but he did not do so, nor is it urged that he alone owned the money which was deposited in Court.
19. In my opinion the correct reasoning here would be that the decree of this Court was a nullity because the appeal abated against all the respondents and that therefore the pre-emption decree in favour of the original plaintiffs still operates. Possession was given to Wajid Ali wrongly. 'It may be mentioned that no plea of res judicata is set upon his behalf.
20. Much stress was laid by the learned Counsel for the appellant on the change of phraseology in the Code of Civil Procedure, 1908. In my opinion the alteration has not changed the law on the subject. According to Order 22, Rule 4, Clause 1 where one of two or more defendants dies and the right to sue does not survive against the surviving defendants alone (as here) the Court shall upon application cause the legal representatives of the deceased defendant to be made parties. Clause 3 of this rule lays down that in the absence of an application the suit shall abate as against the deceased defendant. The words 'as against the deceased defendant' are new in the present Code. This means that the appeal abates primarily against the deceased respondent alone. The provision means that the appeal shall not abate as a whole necessarily as an invariably consequence of abatement against a respondent. At the same time, the provision does not lay down that in every case the appeal shall proceed against the other respondents. The point will have to be decided in every appeal whether the appeal abated as against the deceased unrepresented respondent only or as a whole.
21. My opinion is that Wajid Ali's appeal here abated as a whole. A vendee cannot admit the right of one out of several pre-emptors to pre-empt a portion and appeal as to the right of the others. The rights of all pre-emptors were of equal degree and admission of the right of one amounted to an admission of the right of all. Amar Singh may have had claims of his own to the entire property which he would not be able to urge if he is not made a party to the appeal. Suppose Amar Singh alone had deposited the money as he was fully entitled to do under the decree and became entitled to possession of the entire property. The purchaser by appealing against the others, who did not want to press their claims, would deprive Amar Singh of the fruits of his victory by depriving him of a hearing in the appellate Court. The decree in favour of the plaintiffs was joint and not divisible. To my mind, the principles of the ruling in the case of Imamuddin v. Sadarath Rai (1910) 32 All. 301 apply here though the defendants in that case were purchasers and not pre-emptora. Here the interests of the pre-emptors are indivisible just as those of the purchasers were indivisible in the case quoted. The decree can be executed whole or not at all. On this ground the learned Judges rightly distinguished a decree in a preemption suit from a decree such as the one under construction in Imdadali v. Jagan Lal (1894) 17 All. 478. There the properties of two judgment-debtors were divisible. The decree was passed against Mahamed Jalil and not Hamidunissa for possession of property, while the lady had died prior to decree and her representative in interest was cot brought on the record. This Court held that so far as the interests of the lady were concerned the decree was not enforceable. Presumably it was known to what extent the decree was passed against Abdul Jalil and to what extent against the lady. In the present case the decree in favour of the four plaintiffs is indivisible.
22. Ambika Prasad v. Jhanak Singh A.I.R. 1923 All. 211 was another ruling of this Court quoted on behalf of the respondent. I shall not rely upon it because the reasoning does not appear to me to be sound that one of several pre-emptors in equal decree cannot appeal with respect to the entire property. I should have thought that, taking the facts of the present case for an example, if the plaintiffs had failed in the first Court, any one of them could have appealed alone to preempt the entire property.
23. As in my opinion the decree of this Court of 18th January, 1923, is inoperative, I would dismiss this appeal and decree appeal Exhibit No. 281 of 1923.
24. As we are differing, on a question of law, we refer the case, to the Hon'ble the Acting Chief Justice with the request that he may constitute a Bench for hearing the question under Section 98(2) proviso of the Civil Procedure Code. The question is this:
(a) Where in a pre-emption suit, the vendee appeals against a decree allowing the claim of four plaintiffs pre-emptors and the appeal is decreed, in ignorance of the fact that one of the respondents was dead, and the suit is dismissed, whether the whole appeal had abated and consequently the appellate decree is nullity or whether the decree was operative as against the plaintiffs-respondents who survived
(b) Farther, whether the fact that, the consideration money bad been paid by all the pre-emptors jointly, without specification of shares, in terms of the decree of the Court of first instance, in the said Court, before the appeal was heard, will make any difference in the answer to be returned to the question (a)
Daniels and Neave, JJ.
25. This is a reference under Section 98 of the Civil Procedure Code in consequence of a difference of opinion between Mr. Justice Mukerji and Mr Justice Dalai The question for decision in the appeal was whether the failure of the appellant Wajid Ali Khan to implead the legal representatives of A mar Singh plaintiff in his first Appeal No 119 of 1921, to this Court involved the dismissal of his entire appeal or only its dismissal in respect of one-fourth share of the subject-matter.
26. The facts are stated in the two referring orders They are that four persons Puran Singh Lekhraj Singh, Amar Singh and Pirthi Singh filed a joint suit for pre-emption. Wajid Ali Khan, the vendee of the property under the sale impugned was the sole defendant. The trial Court decreed the suit on 28th February, 1921, and gave a joint decree in favour of the plaintiffs. On 18fch Mareh, 1921, Wajid Ali Khan appealed to this Court. In the meanwhile the decree-holders deposited the pre-emption money and obtained possession of the property.
27. On 12th January, 1922, Amar Singh died. No steps were taken, to implead his legal representatives. This Court nearly a year later, in ignorance of Amar Singh's death, allowed the appeal and dismissed the suit. This was on 18th January, 1923, Wajid Ali Khan obtained an ex parte order restoring possession to him, hut subsequently on the objection of the legal representatives of Amar Singh this order was set aside and possession delivered to the legal representatives of Amar Singh. As between the decree holders there is a mutual agreement the effect of which is that it is immaterial whether possession is restored to all the decree-holders jointly or to the representatives of Amar Singh alone. Wajid All Khan appealed to this Court and contends that he should have been allowed to retain possession of three-fourths of the property and only the remaining one-fourth restored to the representatives of the deceased. The appeal came before a Bonoh consisting of Mr. Justice Mukerji and Mr Justice Dalai. Mr. Justice Mukerji was of opinion that this contention should prevail. Mr. Justice Dalai considered that the order of the Court below was correct. They have accordingly referred to us under Section 98 of the Code of Civil Procedure the following two questions of law:
(A) Where in a pre-emption suit the vendee appeals against a decree allowing the claim of four plaintiff-pre-emptors, and the appeal is decreed in ignorance of the fact that one of the respondents was dead and the suit is dismissed, whether the whole appeal had abated and consequently the appellate decree was a nullity or whether the decree was operative as against the plaintiffs re3pondontg who survived
(B) Further, whether the fact that the consideration money had been paid by all the pre-emptors jointly without specification of shares in terms of the decree of the Court of first instance, in the said Court, before the appeal was heard, will make any difference in the answer to be returned to the question (A)
28. We agree with the view of Mr. Justice Dalai that the order of the Court below should be upheld. A reference has been made to the difference in language between Order 22, Rule 4 of the Code of Civil Procedure and the corresponding provision of the Code of 1882. The old Code said that the whole appeal should abate. The present Code says that it shall abate as against the deceased defendant or respondent. This does not mean that the appeal can in all cases succeed against the remaining respondents. Whether this is so depends entirely on whether the interest of the deceased respondent can be separated from that of the remaining respondents so that it is possible to give a separate decree against the latter without affecting the interest of the legal representatives whom the appellant has failed to implead. When several persons have a joint interest in property, it is in general impossible to give a joint decree for possession against some of them when the decree declaring the right of the other joint holders to retain possession has become final, otherwise the result would be two contradictory decrees both of equal authority. Our answer to the first question must depend therefore on whether the other three plaintiffs had a separate interest in the property which could be restored to Wajid Ali Khan without prejudice to the rights of A mar Singh's representatives. Clearly they had not. The decree was a joint decree; each plaintiff was given a joint interest in the entire property. It was open to any of the four to pay the entire preemption money if his co-plaintiffs failed to do so. To suggest that Amar Singh obtained by the decree a one fourth share in the property which can be separated off from the share decree in favour of his coplaintiffs is directly contrary to the decree itself. The rulings relied on by Mr. Justice Mukerji do not in our opinion affect the question at all. In Imdad Ali v. Jagan Lal (1894) 17 All. 478 the report shows that the judgment-debtor whose representatives had not been impleaded had a distinct and separate share in the property in suit, and this would naturally be the case as the parties were Muhammadans. The case of Sripat Narain Rai v. Tirbeni Misra (1918) 40 All. 423 merely decided that a decree against a dead man was a nullity, but expressly left open the question whether the decree could be given effect to against the surviving defendants. On the. other hand, Ambiha Prasad v. Jhanak Singh A.I.R. 1923 All. 211 is a strong authority against the appellant. Other instances in which an appeal was held as wholly abated because the legal representatives of one of the joint decree-holders had not been impleaded are Sardari Lal v. Bam Lal (1920) 1 Lah. 225 and Tej Narain Sahu v. Lal Ram Sahu A.I.R. 1922 Pat 606.
29. Our answer to the second question is that the rights of the parties are not affected by the fact that they jointly paid in the pre-emption money in accordance with the decree of the trial Court. The argument of the appallant is that they must be presumed to have paid in equal shares and therefore to have become tenants-in-common of one-fourth share of the property each. Such a presumption could only be drawn as between the decree-holders in the absence of any evidence to the contrary. As against the judgment-debtor the money was paid in jointly in pursuance of a joint-decree. No party could have claimed to deposit a fourth share of the prica separately; nor would he have acquired any rights by so doing. Moreover, the order of the trial Court was that the mossy should be paid in within thirty days after the decree became final. In fact the decree never did become final because as appeal was filed. The payment was therefore only provisional, and the rights of the parties cannot be affected by it. Our answer to question (a) there fore is that the whole appeal abated, and our answer to question (b) is that the pay ment into Court of the preemption money by the decree-holders makes no difference to the answer returned to question (A).
Mukerji and Dalai, JJ.
30. This appeal owing to a difference of opinion between the Judges constituting this Bench was heard so far as the question of law was concerned by two Hon'ble Judges of this Court and their opinion and the opinion of one of us are that the decree made by this Court on appeal in the pre-emption suit was a nullity. The result of that finding is that Wajid Ali Khan must restore possession to all the four plaintiffs, who made the application in the Court below. The Court below allowed the application of the heir of the deceased plaintiff Amar Singh. But according to the decision of this Court now all the four plaintiffs ought to be restored to possession. The appeal of Wajid Ali, the vendee, therefore fails and Appaal No. 202 of 1923 is hereby dismissed with co-its which will include Counsel's fees in this Court on the higher scale.