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Kartar Kaur and anr. Vs. Dhan Kaur and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 941 of 1960
Judge
Reported inAIR1970P& H556
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rule 4
AppellantKartar Kaur and anr.
RespondentDhan Kaur and ors.
Appellant Advocate Rajinder Sachar,; R.K. Chhibbar and; V.P. Prashar, A
Respondent Advocate V.P. Sharda, Adv.
DispositionAppeal dismissed
Cases ReferredState of Punjab v. Nathu Ram
Excerpt:
.....be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a..........were allowed to file their respective affidavits with regard to the factum and date of amar singh's death and there is no dispute now that the same were correctly stated by mr. sharda. an application under rule 4 of order xxii of the code of civil procedure read with section 151 thereof, however, has been filed on behalf of the appellants praying that the legal representatives of amar singh respondent no. 4 be brought on the record with a finding that the appeal had not abated. the sole reason put forward in support of the prayer for condonation of the delay is that the appellants live in village thakarwal which lies at a distance of over 20 miles from the village of respondent no. 4 and that the latter died while he was serving in the army outside his village so that the.....
Judgment:

1. Jaimal Kaur respondent No. 6 and the two appellants before me, all of them being real sisters to each other and daughters of one Sunder, brought the suit out of which this appeal has arisen for possession of a house and land measuring 34 bighas 15 biswas, 4 biswansis pukhta situated in Bhaini Bringan, Tehsil and District Ludhiana, against respondents Nos. 2 to 5 who are admittedly collaterals of the said Sunder, on the ground that the deed of relinquishment executed on the 15th of February, 1947, by Shrimati Dhan Kaur defendant-respondent No. 1, the widow of the said Sunder, in favour of respondents Nos. 2 to 5 was void and ineffective, the plaintiffs being preferential heirs of Sunder as compared to his widow. The trial Court decreed the suit. In appeal Shri A.N. Bhanot. Additional District Judge, Ambala, maintained the decree in so far as it related to the house but set the same aside with regard to the land which was proved to be ancestral property qua respondents Nos. 2 to 5.

2. The present second appeal was filed on the 28th of October, 1959, and whenIt came up for hearing before me on the 12th of December. 1969, Mr. Sharda, learned counsel for respondents Nos. 2 and 3, stated that Amar Singh respondent No. 4 had died on the 30th of March, 1964. The parties were allowed to file their respective affidavits with regard to the factum and date of Amar Singh's death and there is no dispute now that the same were correctly stated by Mr. Sharda. An application under Rule 4 of Order XXII of the Code of Civil Procedure read with Section 151 thereof, however, has been filed on behalf of the appellants praying that the legal representatives of Amar Singh respondent No. 4 be brought on the record with a finding that the appeal had not abated. The sole reason put forward in support of the prayer for condonation of the delay is that the appellants live in village Thakarwal which lies at a distance of over 20 miles from the village of respondent No. 4 and that the latter died while he was serving in the Army outside his village so that the appellants did not come to know of his death before their counsel informed them thereof in December. 1969, after the same had been brought to the notice of this Court. These facts, it is contended by Mr. Sachar for the appellants, are sufficient for the condonation prayed for. In my opinion, however, this contention has no force. Mere ignorance of the death of a party does not furnish sufficient ground for setting aside an abatement after the expiry of the periods mentioned in Articles 120 and 121 of the Limitation Act, XXXVI of 1963 (Articles 177 and 171 respectively of the Indian Limitation Act, IX of 1908). In so holding. Tek Chand, J., with whom the other two Judges agreed in Firm Dittu Ram Eyedan v. Om Press Co. Ltd, Fazilka, AIR 1960 Punj 335 (FB), observed :--

'Before ignorance of death can be deemed to be a good ground, there must exist good grounds for ignorance not attributable to negligence. When law imposes an obligation on a person to bring legal representatives of deceased opponent on the record, within the prescribed period, mere want of knowledge of death will be insufficient to secure him against consequences of abatement of his suit or appeal; he has further to show absence of want of care. When reasonable vigilance is a duty, unqualified ignorance cannot be deemed venial. Want of information may be overlooked if want was not induced by neglectful indifference or blameworthy remissness. Allowing oneself to remain in the dark cannot be treated as a persuasive ground for condonation of delay.'

Expressing the view that it was for the applicant to make out cogent grounds for excusing delay either by positive evidence led in this behalf or from the circumstances justifying such a conclusion, Tek Chand, J., held:

'The burden cannot be cast upon the opposite party who secures a valuable advantage bv the lapse of period of limitation, to adduce proof of facts and circumstances showing negligence or want of good faith on the part of the applicant. In the absence of circumstances or proof of want of negligence, a bald statement that the applicant was ignorant of the death cannot be deemed sufficient for revival of the suit or appeal.'

In Munshi Ram v. Radha Kishen, AIR 1924 Lah 461, an application under Order XXII, Rule 9, of the Code of Civil Procedure was made three years after the death of a party. The cause alleged in the affidavit filed in support of the application was that the parties were living in different districts and their residences were separated by a distance of 200 miles, but this was not considered to be a sufficient reason for excusing the delay in making the application after such a long period. This case was quoted with approval in AIR 1960 Punj 335 (FB) (supra), and the facts in the present case where the delay covers a period of more than five years and the distance between the village of the appellants and that of the deceased is only 20 miles, constitute a stronger reason for turning down the, prayer of condonation. The appeal must, therefore, be held to have abated against the deceased respondent.

3. The only question which remains to be decided is as to whether the appeal can proceed as against the surviving respondents. This point is also covered by authority. In Swaran Singh Puran Singh v. Ramditta Badhava, AIR 1969 Punj & Haryana 216, the plaintiffs were the sister's sons of the deceased and claimed a joint decree for possession against his collaterals alleging that they (the plaintiffs) were his preferential heirs. The suit was dismissed by the trial Court as well as by the first appellate Court. During the pendency of the plaintiffs' second appeal before the High Court one of the collaterals died and as no application to bring his legal representatives on the record was brought within the time allowed by law in that behalf, the appeal was held not only to have abated as against the deceased respondent but to have become incompetent as a whole. Mehar Singh, C. J., and Narula, J., who decided the case, relied on the dicta of their Lordships of the Supreme Court in the State of Punjab v. Nathu Ram, AIR 1962 SC 89, to the following effect:

(a) If the decree under appeal is joint and indivisible, the appeal against the other respondents also will not be proceeded with and will have to be dismissed as a result of theabatement of the appeal against the deceased respondent.

(b) The view taken by the Courts in some cases previously to the effect that the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents may be suitably dealt with by the appellate Court is incorrect. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree-holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour.

(c) The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also as a necessary corollary that the appellate Court cannot in any way modify that decree directly or indirectly.

In following this authority, the Division Bench turned down an argument that the suit of the plaintiffs should be visualised as such number of separate suits as there were collaterals, with the following observations:--

'The fact remains that they filed one suit for a joint decree for possession against all the defendants and having done so they cannot now argue that the suit should be deemed to be for separate decrees for possession of undivided specified shares in the property in question for the purposes of deciding the question of abatement.'

These observations by which I am bound apply with full force to the facts of the present case. Following them, therefore, I hold that the appeal has become incompetent as a whole and cannot now be proceeded with against the surviving respondents.

In the result, the appeal is dismissed as having abated. There will be no order as to costs.


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