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Suraj Bhan Vs. Baidoo Jai Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Misc. No. 285-C of 1961 in First Appeal No. 111 of 1960
Judge
Reported inAIR1973P& H365
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rule 23-A
AppellantSuraj Bhan
RespondentBaidoo Jai Ram and ors.
Cases ReferredDolai Maliko v. Krushna Chandra Patnaik
Excerpt:
.....these two purchasers were not separately and distinctly mentioned in the sale deed. but if by oversight or on account of some doubt as to who are the heirs, any heir of a deceased is left out, that in itself would be no reason for holding that the entire estate of the deceased is not represented unless circumstances like fraud or collusion exist. parbati were not brought on record because of any fraud or collusion, nor any proceedings did take place so that the other party could complain that there was no fair or real trial or that against the absent heirs there was a special case and the same was not and could not be tried in the proceedings. the question of abatement does not arise in this appeal on account of the death of ram chand as well and, therefore, civil miscellaneous..........addition to manphul singh son of ram chand, smt. parbati daughter of ram chand was also brought on record as legal representative of ram chand appellant. smt. parbati having died, her legal representatives have not been brought on record till today. ram sarup, who is another appellant in s. a. o. no. 30 of 1955 and r. f. a. no. 112 of 1960, also died during the pendency of the appeals and his legal representatives admittedly have not been brought on the record.6. mr. ram lal aggarwal, the learned counsel for the plaintiff suraj bhan, vehemently contended that since the legal representatives of smt. parbati and those of ram sarup, the appellant in r. f. a. no. 112 and s. a. o. no. 30 of 1955 have not been brought on record, therefore, these appeals have abated in toto, and the same cannot.....
Judgment:

Dhillon, J.

1. Briefly stated the facts giving rise to S. A. O. No. 30 of 1955 and R. F. As. Nos. 111 and 112 of 1960 are that Suraj Bhan plaintiff claiming himself to be the 9th degree collateral of Smt. Baidoo's husband Jai Ram who was shown as defendant No. 1 in the suit, filed a suit for declaration that it be held that the seven alienations made by Smt. Baidoo, defendant No. 1, mentioned in the plaint in favour of defendants Nos. 3, 8 and 11 to 15 were without consideration, necessity and authority, and were fictitious, null and void and the same had no effect on the rights of the plaintiff after the death or second marriage of Smt. Baidoo, defendant No. 1 and that the plaintiff was entitled to 1/2 share of the property left by Jai Ram. It may be pointed out that all the persons, in whose favour the alienations had been made, were impleaded as defendants. This suit was resisted by the defendants Nos. 1, 3, 8 and 11 to 15 and a number of pleas were raised before the trial Court. On the pleadings of the parties the following issues were framed by the learned trial Judge.

1. Whether the plaintiff has a loan standi to maintain the present suit?

2. If issue No. 1 is affirmed whether the alienations in dispute are for consideration and for valid and legal necessity?

3. Whether the transactions in dispute were act of good management on the part of the widow?

4. Whether the plaintiff is estopped by his conduct from maintaining the present suit?

5. Whether the widow has only a life estate in the property in suit?

6. Whether the suit is properly valued for the purposes of jurisdiction?

7. Whether the property as detailed in para I(G) of the plaint was mortgaged by Mst. Baidoo in favour of Sardara and others with the consent of the plaintiff and if so, to what effect?

8. Relief.

2. It was held by the trial Court on issue No. 1 that the plaintiff had no locus standi to maintain the present suit. Issues Nos. 2 and 3 were held not have arisen for decision because of the finding on issue No. 1. Issue No. 4 was decided against the defendants and under issue No. 5 it was held that the widow had only life estate. Issue No. 6 was not pressed and the same was decided against the defendants. Issue No. 7 was also decided against the defendants. In view of the above findings on issue No. 1, the plaintiff's suit was dismissed by the learned trial Judge. The plaintiff aggrieved against this judgment and decree, filed an appeal before the District Judge, Rohtak. The learned District Judge came to the conclusion that the trial Judge had gone wrong in holding that the sister and sister's son of Jai Ram were preferential heirs than the plaintiff, who was a ninth degree collateral of the deceased, as no specific issue was framed regarding this matter. The learned District Judge, therefore, set aside the findings of the trial Sub-Judge on issue No. 1 and remanded the case under Order 41, Rule 23-A of the Code of Civil Procedure for fresh decision after framing proper issues in the case and affording opportunity for producing evidence to the parties. The findings of the trial court on issues Nos. 5 and 6 were affirmed. It is against this order of the learned District Judge that S. A. O. No. 30 of 1955 has been filed by the aliences-defendants in this Court.

3. After the remand order, the learned trial Judge framed the following issues:

1. Whether the plaintiff has a locus standi to maintain the present suit?

2. If issue No. 1 is affirmed whether the alienations in dispute are for consideration and for valid and legal necessity?

3. Whether the transactions in dispute were acts of good management on the part of the widow?

4. Whether the plaintiff is estopped by his conduct from maintaining the present suit?

5. Whether the widow has only a life estate in property in suit?

6. Whether the suit is properly valued for purposes of jurisdiction?

7. Whether the property as detailed in para 1(g) of the plaint was mortgaged by Mst. Baidoo in favour of Sardara and others with the consent of the plaintiff, if so to what effect?

7 (A). Whether Mst. An Kaur and Munna are preferential heirs as against the plaintiff?

7(B). If so, whether the plaintiff has got a locus standi to sue?

8. Relief.

4. Under issue No. 1, the learned trial Judge came to the conclusion that in view of the issues Nos. 7(A) and 7(B), issue No. 1 had become redundant. While discussing issues Nos. 7(A) and 7(B), it was held by the learned trial Judge that the plaintiff had locus standi to sue. As regards issues Nos. 5 and 6, the learned trial Court held that since the findings given by the learned trial Court earlier were confirmed by the Appellate Court, therefore, these issues were found accordingly. Under issues Nos. 2 and 3 it was held by the trial Court that some of the alienations challenged were for consideration and necessity and were acts of good management while others were set aside by the learned trial Judge for want of consideration and necessity and for want of acts of good management on the part of the defendant No. 1. R. F. A. No. 111 of 1960 has been filed by Suraj Bhan plaintiff challenging that portion of the judgment and decree of the learned trial Judge wherein he held certain alienations to be with consideration and necessity and acts of good management whereas R. F. A. No. 112 of 1960 has been filed by the alienees-defendants challenging the judgment of the learned trial Court setting aside the alienations.

5. It may be pointed out that Ram Chand, who was defendant No. 3 in the plaint and who was one of the appellants in S. A. O. No. 30 of 1955 and R. F. A. No. 112 of 1960 died on 6-8-1956. An application was filed within time for bringing on record his son Manphul Singh as legal representative of Ram Chand in S. A. O. No. 30 of 1955 and the said application was allowed. In R. F. A. Nos. 111 and 112 of 1960 in addition to Manphul Singh son of Ram Chand, Smt. Parbati daughter of Ram Chand was also brought on record as legal representative of Ram Chand appellant. Smt. Parbati having died, her legal representatives have not been brought on record till today. Ram Sarup, who is another appellant in S. A. O. No. 30 of 1955 and R. F. A. No. 112 of 1960, also died during the pendency of the appeals and his legal representatives admittedly have not been brought on the record.

6. Mr. Ram Lal Aggarwal, the learned counsel for the plaintiff Suraj Bhan, vehemently contended that since the legal representatives of Smt. Parbati and those of Ram Sarup, the appellant in R. F. A. No. 112 and S. A. O. No. 30 of 1955 have not been brought on record, therefore, these appeals have abated in toto, and the same cannot proceed further. Mr. Sethi, the learned counsel for the defendants-alienees, on the other hand, contends that all the alienations were separately made by separate registered deeds in favour of separate alienees in connection with different parcels of land. Therefore, even if the legal representatives of Ram Sarup, appellant in S. A. O. No. 30 of 1955 and R. F. A. No. 112 of 1960 are not brought on the record, the appeals shall not abate in toto but shall only abate qua his share in the property. As regards the death of Smt. Parbati, the contention of the learned counsel is that the estate of Ram Chand was sufficiently represented by bringing on record Manphul Singh, therefore the appeals shall not abate in toto.

7. As has already been mentioned above the suit filed by the plaintiff challenged all the seven alienations made by the widow. Out of these seven alienations, alienations Nos. 1, 3, and 7 were upheld and alienations Nos. 2, 4, 5, and 6 were set aside and were held to be without consideration and necessity. It may be pointed out that all the seven alienations were made by different registered deeds and some of them on different dates. Therefore, in R. F. A. No. 112 of 1960, we are only concerned with alienations Nos. 2, 4, 5 and 6. As far as alienations No. 4 is concerned, it was solely in favour of Jai Lal defendant-appellant in R. F. A. No. 112 of 1960 and S. A. O. No. 30 of 1955. As regards alienation No. 2, the same was in favour of Ram Pat, who was defendant No. 14 in the plaint, but he was not appealed against the judgment and decree of the learned trial Judge setting aside his alienation. As regards alienations Nos. 5 and 6, it may be mentioned that both these alienations were made by separate registered deeds on 23-10-1953. In alienation No. 6, 1/2 share of the land measuring 28 bighas 13 biswas was exchanged by Smt. Baidoo, widow with Ram Chand appellant, who was defendant No. 3 in the plaint. Out of the same land measuring 28 Bighas 13 Biswas, 1/4th share was sold to Jai Lal defendant No. 8 vide sale deed Ext. D. 3 on 23-101-953. Another 1/8th share was sold to Phul Singh and Phul Kanwar, defendants Nos. 11 and 12 and 1/8th share to Ram Sarup defendant No. 13, vide sale deed Exh. D. 5 on 23-10-1953.

8. The first question which has to be examined in this case is whether by not bringing on record the legal representatives of Ram Sarup deceased in R. F. A. No. 112 of 1960 and S. A. O. No. 30 of 1955 filed by Ram Sarup appellant and other alienees, these appeals have abated in toto or not. In this connection, after hearing the learned counsel for the parties, I am of the opinion that it cannot be held that the appeals have abated in toto. It is evident that the appellant Ram Chand and Jai Lal are the transferees of separate properties by separate registered deeds from the widow. It cannot be denied that each of these alienations could be challenged by a separate suit, but since these alienations were made by one person, that is, Smt. Baidoo, therefore, the same were challenged in one declaratory suit by the plaintiff as there was a common ground that such alienations were without considerations and legal necessity. It is not denied by the learned counsel for the plaintiff that if Jai Lal and Ram Chand had filed separate appeals and had not joined Ram Sarup in filing the appeals, and if he had been shown as a pro forma respondent, their appeals, by the death of Ram Sarup and by not bringing on record his legal representatives, could not abate. Merely because they chose to join Ram Sarup in finding the appeals, it is difficult to hold that the appeals will bate in toto.

Their Lordships of the Supreme Court in State of Punjab v. Nathu Ram, AIR 1962 SC 89, laid down the tests to be applied while considering the question whether the appeal has abated or not and it was held that there had been no divergence between the Courts about the Courts proceeding with the appeal was not a joint decree in favour of all the respondents. In case of joint decree, their Lordships held that the question whether a Court can deal with such matters or not, will depend on the facts of each case and, therefore, no exhaustive statement can be made about the circumstances when it will be possible or not possible to proceed. However, their Lordship laid down three tests in order to determine and hold that if any of the tests so laid down is satisfied, then the Courts will not proceed with an appeal as the same having been abated. The tests laid down are as follows:--

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 already made 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 relief against those respondents alone who are still before the Court; and

(c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed.

9. Applying these three tests to the facts of the present case, I am of the opinion that none of these tests has been satisfied in the present case. No doubt, the appeals of Ram Sarup having bated the finding of the trial Court qua him has become final, but it is to be noted that the decree against him is of a different property by a different sale deed, whereas, the decree against Ram Chand and Jai Lal appellants is of different properties, which were transferred to them by different deeds. Therefore even if the appeals filed by Ram Chand and Jai Lal are accepted, it will not amount to passing a contradictory decree qua the same subject matter between Ram Chand, Jai Lal and Ram Sarup, deceased appellant. As regards the second test laid down by their Lordships of the Supreme Court in the present case, it cannot be held that Ram Chand and Jai Lal could not file the appeals without joining Ram Sarup and they could file separate reliefs. As regards the third test, it cannot be said that if Ram Chand and Jai Lal appellants succeed, the decree will become ineffective as it cannot be executed. The decree against Ram Sarup is regarding a separate property and if the appeals of Ram Chand and Jai Lal are accepted, the same will concern a completely different property. Therefore, there cannot be any difficulty in executing both the decrees.

10. A similar matter came up for consideration before their Lordships of the Supreme Court in Raghunath Keshava Kharkar v. Ganesh Balakrishna Kharkar, AIR 1964 SC 234. That was a case where a reversioner had brought a suit for the recovery of the property after the death of the widow in which he impleaded several alienees of different properties as defendants. The suit of the plaintiff was decreed by the trial Court and the defendants appealed to the High Court. The High Court accepted the appeal and dismissed the suit of the plaintiff. Thereupon the plaintiff after having a requisite certificate from the High Court appealed to the Supreme Court. One of the alienees-respondents in the appeal, namely, Jaigopal Narayandas died on 19-4-1960, after the decree of the High Court, which was given on 7-3-1957, and also after the grant of the certificate by the High Court in May, 1958, and the order admitting the appeal by the High Court in April, 1959. The record of the case was despatched to the Supreme Court in 1962, and further no application was made to the High Court till 13th August, 1962 for substitution of the heirs of Jaigopal Narayandas. When that application for substitution was made in August, 1962, the High Court dismissed the same. Then there was a review application which was also dismissed by the High Court. Then an application was made to the Supreme Court for substitution of the heirs of Jaigopal Narayandas. It was contended by the respondents that as the heirs of Jaigopal Narayandas were not brought on record within the time allowed by law, the entire appeal abated.

This contention was repelled by the Supreme Court and it was held that the interests of various defendants who were in possession of various properties were independent and therefore, the whole of the appeal could not abate merely because the heirs of certain deceased defendant in possession of one property had not been brought on record. As regards property No. 8 which was purchased by Shamdas Narayandas and Jaigopal Narayandas, who were presumably the members of a Hindu Undivided Family and whose share in the property was not separate and distinct and it was held that qua that property, the appeal shall abate as the shares of these two purchasers were not separately and distinctly mentioned in the sale deed. Applying this test to the facts of the present case, it is apparent that the interests of Jai Lal and Ram Chand appellants are quite distinct from the interest of Ram Sarup as they are alienees of separate properties by separate deeds. Therefore, in my opinion, the appeals filed by Jai Lal appellate cannot be held to have been abated for non-substitution of the legal representatives of Ram Sarup appellant. As regards Ram Chand appellant, the same cannot be held to have been abated because of the non-substitution of the legal representatives of Ram Sarup Appellant, but it is a different matter as to what is the effect of the legal representatives of Smt. Parbati deceased, daughter of Ram Chand appellant who was brought on record, having not been brought on the record. This matter shall be dealt with separately.

11. As regards the appeals, filed by Phul Singh and Phul Kanwar, who have purchased 1/2 out of 1/4th share of 28 Bighas and 13 Biswas of the land mentioned in the deed Exhibit D. 5, I am of the opinion that keeping in view the facts of this alienation it has to be held that the appeals of Phul Singh and Phul Kanwar have abated. Firstly, the property in question was transferred to Ram Sarup, Phul Singh and Phul Kanwar by way of deed Ext. D. 5 and secondly, the sale of property was for a consideration of Rs. 2,000/- out of which Rs. 1700/- were paid before the sub-Registrar and the remaining amount of Rs. 300/- was left in trust with the vendees for redemption of 1/4th Share of Khasra No. 1091 mortgaged with Badlu Ram. It was not mentioned as to how much amount was paid in cash by each alienee before the Sub-Registrar and as to who was to pay off the appeals filed by Phul Singh and Phul Kanwar, the question whether the sale was for consideration and legal necessity, would be quite germane and since the appeals of Ram Sarup appellant have abated, therefore, it cannot be determined in the appeals of Phul Singh and Phul Kanwar as to how much amount has been paid by each alienee in cash before the Sub-Registrar and who has paid off the mortgage debt so that the payment of consideration and the question of legal necessity is so interlinked that there is bound to be a conflict between the decree of the trial Court which has become final qua Ram Sarup and his legal representatives, which would have to be set aside if the appeals of Phul Singh and Phul Kanwar are accepted.

In such a case, contradictory decrees will come into existence, which cannot be executed and the question of consideration and legal necessity being common to Ram Sarup, Phul Singh and Phul Kanwar the same cannot be determined as the finding against the legal representatives of Ram Sarup has become final. In this view of the matter, I am of the opinion that even though the shares of Phul Singh and Phul Kanwar on the one side, and Ram Sarup, on the other have been specified in the sale deed; the question of consideration and legal necessity was interlinked and that in view of the abatement of the appeals of Ram Sarup this question cannot be further examined. Therefore, the appeals of Phul Singh and Phul Kanwar cannot proceed and the same have to be dismissed and so also the appeals of Ram Sarup appellant.

12. The only other question which remains for examination is whether the appeals filed by Ram Chand survive or not. It has already been mentioned that on the death of Ram Chand, Manphul Singh, his son, was brought on the record within time, as his legal representative in S. A. O. No. 30 of 1955. In R. F. As. Nos. 111 and 112 of 1960, Manphul Singh and Smt. Parbati daughter of Ram Chand deceased, were brought on the record within time before the learned District Judge from whose Court these Regular First Appeals stand transferred to the file of this Court. In this Court also C. M. No. 285/C of 1961 was made to bring Manphul Singh and Smt. Parbati on record as legal representatives of Ram Chand deceased in R. F. A. No. 111 of 1960 which was granted on 21-2-1961, but the question of abatement was ordered to be decided by the Bench hearing the appeal. After the death of Ram Chand, the appeals remained pending and now the same are being listed for disposal. No other proceedings took place during this period. I am inclined to agree with the contention of Mr. Sethi, the learned counsel for Manphul Singh, that the estate of deceased Ram Chand was being sufficiently represented by bringing on record Manphul Singh, his son, in S. A. O. No. 30 of 1955 and Manphul Singh and Smt. Parbati in R. F. A. Nos. 111 and 112 of 1960. Smt. Parbati is alleged to have died only a few months before. It was held by their Lordships of the Supreme Court in Dolai Maliko v. Krushna Chandra Patnaik, AIR 1967 SC 49, as follows:--

'Even in a case where on the death of one of the appellants, his heirs apply for bringing themselves on record as his legal representatives, unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceeding, there is no reason why the heirs who have applied for being brought on record could not be allowed to represent the entire estate including the heirs not brought on record. This is not to say that where the heirs of an appellant are to be brought on record all of them should not be brought on record and any of them should be deliberately left out. But if by oversight or on account of some doubt as to who are the heirs, any heir of a deceased is left out, that in itself would be no reason for holding that the entire estate of the deceased is not represented unless circumstances like fraud or collusion exist.'

13. Applying the test laid down by their Lordships of the Supreme Court in the above mentioned case to the facts of the present case, it is apparent that it cannot be contended that the legal representatives of Smt. Parbati were not brought on record because of any fraud or collusion, nor any proceedings did take place so that the other party could complain that there was no fair or real trial or that against the absent heirs there was a special case and the same was not and could not be tried in the proceedings. Merely because the legal representatives of Smt. Parbati were not brought on record by mistake and especially when no proceedings took place after the death of Ram Chand, it is difficult to hold that the entire estate of the deceased is not represented. It is pertinent to note that to begin with, this suit was for challenging the alienation made by a widow under the custom. Therefore, if the counsel for Ram Chand was of the view that his daughter was not the necessary party, that would not entitle this court to deceased was not represented especially when his son was brought on record in time and continues to be so. In S. A. O. No. 30 of 1955, only Ram Chand's son Manphul Singh was brought on record because of this confusion in the mind of the counsel. In R. F. A. Nos. 111 and 112 of 1960, both the son and the daughter of Ram Chand deceased were brought on record before the learned District Judge, Relying on the observations of their Lordships of the Supreme Court in the above referred to case, I am of the opinion that it is difficult to hold that the appeals filed by Ram Chand appellant have abated because of non-substitution of the legal representatives of Smt. Parbati deceased, who was brought on record as the legal representative of Ram Chand deceased in R. F. A. No. 112 of 1960 and was not brought on the record in S. A. O. No. 30 of 1955. It is, therefore, a fit case that the legal representatives of Smt. Parbati be allowed to be brought on record. The Supreme Court in the above referred to the case also ordered that the heirs left out earlier be brought on record and the case was remanded by the High Court for fresh decision. I, therefore, grant one month's time to the counsel for the appellants in R. F. As. Nos. 111 and 112 of 1960 and S. A. O. Nos. 30 of 1955 to bring on record the legal representatives of Smt. Parbati and the appeals shall then be listed for hearing on merits.

14. Before I part with the judgment, it may be mentioned that it was contended by the learned counsel for the plaintiff that Indraj and Chandgi, who were the collaterals of the plaintiff and were shown as defendants Nos. 4 and 5 in the plaint, had also died during the pendency of the appeals and their legal representatives were not brought on record. It was contended that in view of this also, S. A. O. No. 30 of 1955 and R. F. A. No. 112 of 1960 have abated. It may be mentioned that this contention is without any merit. It is conceded that Indraj and Chandgi were not alienees of any property in dispute. They were alleged to be the collaterals of the plaintiff and had a chance to succeed as heirs of the widow on her death or on her re-marriage if the alienations are set aside. It is conceded by Mr. Ram Lal Agarwal, the learned counsel for the plaintiff, that in a declaratory suit, the decree passed ensures to the benefit of all the body of reversioners even though they are not impleaded as parties. His contention is that since these two alleged collaterals were made as defendants in the plaint, therefore, by not bringing on record the legal representatives of these two defendants the appeals must abate. I am unable to agree with this contention. The sole test which has to be applied is whether Indraj and Chandgi were the necessary parties to the suit or not, or in other words, could the suit proceed without their having been impleaded as parties to it. It is admitted by the learned counsel for the plaintiff that even if they would not have been impleaded as defendants, the suit could proceed. In this view of the matter, they were not the necessary parties. Merely because they were shown as defendants, it is difficult to hold that by not bringing on record their legal representatives, the appeals must abate.

15. As regards R. F. A. No. 111 of 1960, on account of the death of Ram Sarup, whose legal representatives have not been brought on record, the appeal shall not abate as no relief has been claimed against him because no alienation made in his favour is the subject mater of appeal in R. F. A. No. 111 of 1960 and Ram Sarup is only a pro forma respondent.

16. This legal representatives of Ram Chand deceased were already brought on record in time in R. F. A. No. 111 of 1960 when the appeal was pending before the District Judge. The question of abatement does not arise in this appeal on account of the death of Ram Chand as well and, therefore, Civil Miscellaneous Application No. 285/C of 1961 is disposed of accordingly.

17. The net result is that in R. F. A. No. 112 of 1960 and S. A. O. No. 30 of 1955, the appeals filed by Ram Sarup, Phul Singh and Phul Kanwar abate whereas the appeals filed by Jai Lal and Ram Chand have not abated. Similarly, appeal of Badlu appellant in S. A. O. No. 30 of 1955 does not abate. R. F. A. No. 111 of 1960, filed by Suraj Bhan plaintiff does not abate also. After the legal representatives of Smt. Parbati have been brought on the record, these appeals be listed for hearing on merits.

Pandit, J.

18. I agree.

19. Order accordingly.


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