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Amitav Ray Vs. Ashok Kumar Ray and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 157 of 1977
Judge
Reported inAIR1981Ori109; 51(1981)CLT327
ActsSuccesssion Act, 1925 - Sections 218; Code of Civil Procedure (CPC) , 1908 - Sections 141 - Order 41, Rule 4
AppellantAmitav Ray
RespondentAshok Kumar Ray and anr.
Appellant AdvocateA.K.J. Mohapatra, ;B. Misra and ;P.C. Mohapatra, Advs.
Respondent AdvocateR.K. Mohapatra, ;A.N. Misra, ;S.N. Sinha and ;B. Pal, Advs.
DispositionAppeal dismissed
Cases ReferredIn Gangabai v. Jaikishindas Malayomal
Excerpt:
.....246, are not good law]. - nathu ram, air 1962 sc 89, and it has been held that 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 will 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; jagdish pershad kishan chand, air 1966 sc 1427, has re-affirmed the decision in nathu ram case as well as the case of rameshwar prasad (supra) and it has been held that even if one of the tests laid down in nathu ram case is satisfied, the court may having regard to all the..........and vary the decree in favour of all the plaintiffs or defendants under order 41, rule 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned under order 22, rule 3.the supreme court in sri chand v. jagdish pershad kishan chand, air 1966 sc 1427, has re-affirmed the decision in nathu ram case as well as the case of rameshwar prasad (supra) and it has been held that even if one of the tests laid down in nathu ram case is satisfied, the court may having regard to all the circumstances hold that the appeal has abated in its entirety, a direct case on this point is smt. bahuria manikrai kuar v. smt. amarbas kuar, air 1944 pat 38. a.....
Judgment:
ORDER

N.K. Das, J.

1. Challenge has been made to grant of Letters of Administration by the Subordinate Judge, Puri on the strength of an unregistered will dated 20-8-72. Plaintiffs applied for grant of Letters of Administration on the strength of a Will said to have been executed by their mother. Defendant No. 2 has filed this appeal challenging the decision of the Subordinate Judge. Originally, only the plaintiffs were made respondents, but subsequently leave has been granted by this Court on 24-8-77 to amend the memo of appeal. By way of amendment, original defendants Nos. 1, 3 and 4 have been added as respondents Nos. 3, 4 and 5. As the appellant did not take steps for service on respondent No. 5, the appeal stands dismissed and the stay was vacated as against respondent No. 5 by order dated 21-12-79.

2. The case of the plaintiffs is that they were looking after the affairs of their mother and she had much affection for them. While in sound state of body and mind, she executed a Will on 20-8-72 out of her free will in respect of a house situated in Puri town and it was her last Will.

3. The case of defendant No. 2 in the written statement is that the Will is a forged one it does not bear the thumb impression or signature of the mother. At the relevant time, the testatrix was lying seriously ill for over a year before her death and after a cerebral stroke, which resulted in paralysis, she had lost her power of movement and also speech. She had no sound disposing state of mind and was incapable of making any testamentary disposition at the relevant time.

4. The trial court has accepted the Will to be a genuine one and has held that the testatrix had executed the Will while in sound disposing state of mind and that was out of her free volition.

5. While the appeal was taken up for hearing, two 'preliminary objections were raised by the respondents, namely, the appeal having abated against respondent No. 5, the Court cannot proceed with the appeal; and the addition of respondents Nos. 3, 4 and 5 having been made after the period of limitation, the appeal as a whole has been barred by limitation. Counsel for both sides agreed that the preliminary objections should be disposed of first and, accordingly, arguments for both sides have been confined only to the aforesaid two points.

6. Undisputedly, respondent No. 5 was a daughter of the testatrix. She was also a party in the Court below. By way of amendment, she was impleaded as a party in the appeal, but the appeal has been dismissed as against her for not taking steps. It is contended by the learned counsel for the respondents that there would be conflict of decisions if the appeal is allowed, and the Court cannot proceed with the appeal, inasmuch as it has already been dismissed as against respondent No. 5. The learned counsel for the appellant contends that the suit being under the Indian Succession Act and for grant of Letters of Administration, it cannot be treated as a properly constituted suit under the Code of Civil Procedure and, as such, the provisions of the Code of Civil Procedure relating to abatement are not applicable. The principle in this respect has been laid down in State of Punjab v. Nathu Ram, AIR 1962 SC 89, and it has been held that 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 will 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 action for the necessary reliefs against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, will be ineffective, that is to say, it could not be successfully executed. A Division Bench of this Court has also held in Prahallad Dhal v. Nilamani Dhal, (1972) 2 Cut WR 680, that even when respondent dies and there is chance of conflicting decisions, the appeal cannot, proceed. In Alii Sheriff v. Salur Ammanna, (1953) 19 Cut LT 474, respondents Nos. 3 to 5 were expunged from record and it was held that the appeal could not proceed.

In the case of Rameshwar Prasad v. Shambehari Lal Jagannath, AIR 1963 SC 1901, the aforesaid Nathu Ram case has also been reiterated by a larger Bench of the Supreme Court. It has been held therein that an appellate Court has no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under Order 41, Rule 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned under Order 22, Rule 3.

The Supreme Court in Sri Chand v. Jagdish Pershad Kishan Chand, AIR 1966 SC 1427, has re-affirmed the decision in Nathu Ram case as well as the case of Rameshwar Prasad (supra) and it has been held that even if one of the tests laid down in Nathu Ram case is satisfied, the Court may having regard to all the circumstances hold that the appeal has abated in its entirety, A direct case on this point is Smt. Bahuria Manikrai Kuar v. Smt. Amarbas Kuar, AIR 1944 Pat 38. A Division Bench, while dealing with Order 22. Rule 4 of C. P. C. has held that a Will must be either good or bad against all the world. Where a probate is granted of a Will and the appeal against it is allowed to be abated as against some of the respondents, the whole appeal must be dismissed. Reliance has been placed in this respect of a Full Bench decision of the Patna High Court in Ramphal Sahu v. Satdeo Jha, AIR 1940 Pat 346 and two other decisions of the said High Court.

7. There is no dispute about the fact that the case for grant of Letters of Administration is registered as a suit by virtue of Section 141 C. P. C. when it is registered as such, the suit has to proceed according to the procedure laid down in the Code of Civil Procedure. It is contended by the learned counsel for the appellant that as it is a case for grant of Letters of Administration, it cannot be said to be a decree and, therefore, there is no question of indivisibility of the decree and, as such, the question of abatement of the appeal as a whole does not arise. The answer to this question has been clarified by the Patna High Court in AIR 1944 Pat 38, referred to above. In fact, in the present case, a decree was prepared and according to the decision of the Patna High Court this grant of Letters of Administration is an indivisible one, inasmuch as the grant has the force of a decree. By virtue of the tests laid down in Nathu Ram case (AIR 1962 SC 89) (supra), the appeal cannot proceed in absence of respondent No. 5, inasmuch as there will be conflict of decisions. The question whether respondent No. 5 will be benefited or not if the appeal is allowed, is of no importance in such a case. The question is whether the Court can proceed with the appeal in absence of one of the respondents who was a party in the Court below because the appeal is incomplete.

Under the Indian Succession Act, general citations is well as special citations are issued and the special citations are in respect of persons who are necessary parties. The daughter (respondent No. 5) in the present case is a necessary party and, therefore, the question is whether the appeal is competent and whether the appellate court will vary the decision of the lower court. By virtue of the tests laid down in Nathu Ram case, the appeal cannot proceed in absence of respondent No. 5. The Court is not to look to the Question whether benefit will come to respondent No. 5 if the decision of the trial court is varied or not, but the question is whether the appeal can proceed or not (see Rajkishore Dhal v. Dadhi Sahu, (1962) 23 Cut LT 204).

8. In Gangabai v. Jaikishindas Malayomal, AIR 1938 Sind 36, a Full Bench has stated that a decree has to be prepared in a case of grant of Will or Letters of Administration. In the instant case, a decree has been prepared by the trial court. Once a decree has been prepared, the appeal has to proceed according to Order 41, C. P. C. and in absence of respondent No. 5 the appellate court cannot proceed with the appeal because there is no complete appeal before the Court to be heard and there is every chance of conflicting decisions. Accordingly, I hold that the appeal has abated as a whole,

9. Counsel for both sides also agree that if the appeal has abated as a whole there is no question of going into the point of limitation, raised by the counsel for the respondents for adding the names of respondents Nos. 3, 4 and 5 after the period of limitation is over. In the instant case, leave was granted for amending the memo of appeal, but there was no petition for condonation of delay. It is well settled that the respondents can agitate and challenge the question of limitation after their appearance in the case. I do not find any necessity to go into this question as I have already held that the appeal has abated as a whole.

10. In the result, the appeal is dismissed. In the circumstances of the case, there will be no order as to costs.


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