1. This appeal under Clause 10 of the Letters Patent is directed against the judgment of a learned Single Judge, dated 4th of October, 1968 whereby it was held that Regular Second Appeal 528 of 1961 had abated in toto because of the death of Godha Ram (one of the appellants before the learned Single Judge) his legal representatives having not been brought on record within the time allowed by law.
2. So far as the deceased Godha Ram is concerned, there is no dispute that the appeal had abated. The sole contention raised by Mr. K. R. Mahajan, who appears for the appellants, is that the appeal had not abated in toto but only with regard to the interest or share of the deceased Godha Ram in the property in dispute. The question whether there has been total or partial abatement would depend on the facts of such case. Thus for the decision of this case it is necessary to set out in some detail how this matter has arisen.
3. The dispute between the parties relates to the succession to the property left by Smt. Asi Bai who died issueless in November, 1957. Mutation of the land was entered in the name of Chuhara Ram (respondent) on the basis of the will alleged to have been executed by Smt. Asi Bai. Thereupon, Godha Ram, one of the near collaterals of Smt. Asi Bai's father Jhangi Ram brought the suit for possession, claiming that the land in dispute was allotted to Smt. Asi Bai lieu of the landed property that she had inherited in Pakistan from her father. The present appellants (Multani Ram, Hari Chand, Chanan Dass, Arjan Dass and Dayal Dass) along with Dula Ram respondent, being the other near collaterals of Smt. Asi Bai's father were impleaded as respondents (defendants?). They, however, chose not to contest the suit. Chuhara Ram respondent alone contested the suit on the ground that he was lawfully in possession of the property in pursuance of the will executed by Smt. Asi Bai in his favour.
The trial proceeded on the following issues:--
1. Whether the land in suit was inherited by Mst. Asi Bai from her father?
2. Whether the plaintiff and defendants Nos. 3 to 7 are heirs of Mst. Asi Bai's father and if so, to what effect?
3. Whether Mst. Asi Bai has made a valid will in favour of defendant No. 1?
4. Whether defendant No. 1 has spent the sum as alleged and he can claim it?
4. The learned Subordinate Judge found that the property in dispute had come to Mst. Asi Bai from her father and the plaintiff and with defendants Nos. 3 to 7 was entitled to it as heirs, being the nearest collaterals of her father. Observing that the will did not relate to this property, the learned trial Judge did not go into the question of the due execution of the will. In view of these findings, he decreed the claim of Godha Ram in respect of one-sixth share of the land in suit and refused to award any decree in favour of defendants Nos. 3 to 7, observing that they had already been proceeded against ex parte and had themselves not asked for any relief. This decree was reversed by the learned Senior Subordinate Judge in an appeal brought by Chuhara Ram, the sole contesting defendant. The Appellate Court found that the land in dispute had come into the hands of Smt. Asi Bai from her husband and not from her father and her next heirs were Chuhra Ram and Dula Ram, defendants Nos. 1 and 2. Accordingly, the decree of the trial Court was reversed and Godha Ram's suit dismissed with costs.
It was against this order that Regular Second Appeal 528 of 1961 was brought to this Court by Godha Ram. He, however, joined with him the present appellants Multani Ram and others, who were defendants Nos. 3 to 7 in the suit. In the appeal the findings of the lower Appellate Court that Smt. Asi Bai had got the land in dispute from her husband and the plaintiff Godha Ram and defendants Nos. 3 to 7 are not his heirs were disputed. Before the appeal could be heard, Godha Ram unfortunately breathed his last. His legal representatives having not been brought on record within the period of limitation prescribed, the decree of the lower Appellate Court so far as he is concerned became final.
5. It was urged before the learned Single Judge that the appeal abated only in respect of Godha Ram's interest in the land in suit and so far as the present appellants (Defendants 3 to 7) are concerned they had distinct and individual right to the property in dispute and accordingly the death of Godha Ram could not affect their claim with regard to their individual share in the property left by Smt. Asi Bai. The learned Single Judge has rejected this contention and in coming to the conclusion that the appeal had abated in toto recorded the finding that if a contrary view is taken it would result in contradictory decrees and this is not warranted by the provisions of law.
6. Before the learned Single Judge, the appellants placed reliance on the Division Bench decision in Subedar Jiwan Singh v. Ram Kishan, (1966) 68 Pun LR 626, wherein it was held that where each plaintiff had an independent right to his share in the property and all the plaintiffs could have filed separate suits for possession of their share, the mere fact that they had filed one suit would not in any manner affect the question of abatement and, consequently, the death of one co-plaintiff would not in any manner affect the appeal by the others. The learned Single Judge, however, declined to follow it being of the opinion that it was in conflict with the dictum of their Lordships of the Supreme Court in Shri Chand and Co. v. Messrs. Jagdish Pershad Kishen Chand, (1966) 68 Pun LR (Delhi Section) 291=(AIR 1966 SC 1427), and some other decision of that Court. Even earlier the correctness of the rule laid down in Subedar Jiwan Singh's case, (1966) 68 Pun LR 626 had been doubted by another Bench of this Court in Swaran Singh v. Ramditta, AIR 1969 Punj 216, with the following observations by Narula, J. with whom Mehar Singh, C. J., had concurred:
'Even if the law laid down by the Division Bench in Subedar Jiwan Singh's case, (1966) 68 Pun LR 626, could be said to still hold the field, the same would be clearly distinguishable from the case before us as it was a contesting defendant-respondent who has died in the appeal before us. It has also been argued that the abatement of the appeal of Subedar Jiwan Singh against respondents Nos. 5 and 8 could not possibly lead to inconsistent decrees as no relief had either been or could possibly be claimed by Subedar Jiwan Singh against respondents Nos. 5 and 8 who were also collaterals of the last male holder along with the appellant. Moreover, we are not quite certain as to what would have been the decision of the Division Bench in Subedar Jiwan Singh's case, (1966) 68 Pun LR 626 on the question of effect of the death of the co-plaintiff-respondent if the unreported judgment of the Supreme Court, D/-10-4-1962, in Civil Appeal 344 of 1956 (SC) Jhanda Singh v. Gurmukh Singh (deceased) had been brought to its notice.'
7. In fact, a different view had already been taken by another Division Bench of this Court (A. N. Grover and Jindra Lal, JJ) in Puran Singh v. Hazara Singh, AIR 1966 Punj 312. It was held that when two of the plaintiffs appellants died, the decree of the District Judge became final qua them and if thereafter the High Court granted a decree to the other plaintiff-appellants there would be two contradictory decrees with regard to the right which had been jointly claimed by all the plaintiffs. In these circumstances, the appeal was found to have abated as a whole.
8. In canvassing for the acceptance of the rule laid down in Subedar Jiwan Singh's case, appellants' learned counsel has placed reliance on the decision of Full Bench of five Judges in Sant Singh v. Gulab Singh, (ILR 10 Lah 7=AIR 1928 Lah 572). The rule laid down by the Full Bench is that the death of one of the respondents does not necessarily result in the abatement of the appeal in its entirety and it will depend entirely upon the nature of the suit, and if the suit having regard to its frame and character, can proceed in the absence of the deceased defendant, there is no reason why the appeal should not ordinarily proceed against the surviving respondent or respondents.
8-A. Referring to this authority to which Shadi Lal, C. J., was a party, the learned Judges of the Division Bench in Swaran Singh's case (AIR 1969 Punj 216) observed:
'It appears that the observations in the Full Bench judgment of the Lahore High Court in the case of Sant Singh, AIR 1928 Lah 572 (supra) on which reliance was placed by Khanna, J, cannot now be said to be a good law after the pronouncement of the Supreme Court in Nathu Ram's case, AIR 1962 SC 89.'
9. It is thus obvious that there has been some divergence of opinion in this Court, but fortunately the point in issue has come up for consideration before their Lordships of the Supreme Court in several recent cases. It was held in Nathu Ram's case, AIR 1962 SC 89, that where the appeal is against a joint decree and one of the respondents dies the appeal must abate against other respondents as well notwithstanding the fact that their shares in the revenue papers were specified. Some tests for determining whether the abatement has taken place were laid down. The relevant observations made by Raghubar Dayal, J. are these:
'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 this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. 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 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.'
Proceeding further, his Lordship said:
'The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree 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 the abatement of the appeal against the deceased respondent.'
10. His Lordship then took cognizance of the fact that different views exist in the case of joint decrees in favour of respondents whose rights in the subject-matter of the decree are specified, and observed:
'One view is that in such cases, 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 can be suitably dealt with by the appellate Court. We do not consider this view correct. 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. 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. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken.
11. Later in Ram Sarup v. Munshi, AIR 1963 SC 553, their Lordships were dealing with the case in which one of the appellants had died. They reiterated the rule that where the decree is joint one the whole appeal must abate.
12. In Rameshwar Prasad v. Shambehari Lal, AIR 1963 SC 1901, after observing that the provisions of O. 41, R. 4 do not override those of Order 22, Rule 9, Civil P. C., as the two deal with different stages of the appeal and provide for different contingencies, their Lordships of the Supreme Court held 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, if all the plaintiffs or defendants appeal from the decree or any of them dies and the appeal abates so far as he is concerned.
13. The decision in Raghunath v. Ganesh, AIR 1964 SC 234, is distinguishable on facts. It arose out of a suit by a reversioner for recovery of property after the death of the widow, to which several alienees had been made defendants. The suit was dismissed in appeal by the High Court, but the High Court granted leave to appeal to the Supreme Court. Thereafter one of the respondent-alienees died and his legal representatives were not brought on record within the time allowed by law. It was held that the interest of an alienee being separate and independent the whole of the appeal did not abate.
14. In the case before us though the suit was originally brought by Godha Ram joining with him the appellants, being the other near collaterals of Smt. Asi Bai's father, it was found that he had no authority to institute the suit on their behalf. Accordingly the plaint was amended and he became the sole plaintiff and the present appellants were impleaded as defendants 3 to 7, none of whom ever even applied for being transposed as plaintiffs. Though the learned trial Judge accepted the plaintiff's plea that the property had come into the hands of Smt. Asi Bai from her father, he decreed the suit only to the extent of Godha Ram's 1/6th share. This decree was reversed in appeal and in dismissing the suit in toto the learned Senior Subordinate Judge held that neither Godha Ram nor defendants 3 to 7 had any interest in the property as the property had come into the hands of Smt. Asi Bai not from her father but as an heir of her husband.
It is against this decree that the second appeal was brought to this Court, the main complaint being that the property originally belonged to Mst. Asi Bai's father and not her husband. Godha Ram having died, the finding of the learned District Judge that he was not entitled to succeed on the death of Smt. Asi Bai has become final. If the appeal is now allowed to proceed and this finding is reversed, obviously there will be two contradictory decrees, one proceeding on the finding that the property came into the hands of Smt. Asi Bai from her father and the other that it belonged to her husband and she succeeded to it as his heir. To such a situation the rule laid down by their Lordships of the Supreme Court in Nathu Ram's case, AIR 1962 SC 89, fully applies and this is consistent with the view taken in Sri Chand and Company's case, (1966) 68 Pun LR (Delhi Section) 291=(AIR 1966 SC 1427).
15. It has been argued that the provisions of Order 41, Rule 4, Civil P. C. can be invoked and the Court can pass a decree in favour of the appellants despite the death of Godha ram. This argument is clearly untenable because the suit, as already noticed, was brought by Godha Ram as the sole plaintiff. The appellants were impleaded as defendants and consequently no relief was granted to them by the trial Court even though it was found that their claim that the property came into the hands of Smt. Asi Bai from her father was correct. In appeal the decree in favour of Godha Ram was also set aside and being aggrieved he came to this Court. The mere fact that the present appellants joined him as appellants in second appeal does not make them an aggrieved party if they had no grievance whatsoever at any stage. In the first instance they did not approach the trial Court for any decree in their favour. Secondly, even when the trial Court refused to pass the decree in their favour they never appealed against it.
Thus, all along it was a case in which Godha Ram alone was the sole plaintiff. The death of Godha Ram in these circumstances during the pendency of the second appeal has clearly the effect of the sole plaintiff being eliminated from the scene. When the sole plaintiff is dead the right to sue does not survive except to his legal representatives and if they are not brought on record within the time allowed by law, other persons having similar claim cannot take advantage of it by merely joining in the appeal as appellants. Thus, from whichever angle the case be looked at there is no escape from the conclusion that the appeal had abated in toto.
16. Accordingly, we find that the learned Single Judge has taken a correct view of the matter and we dismiss the appeal with costs.
17. Appeal dismissed.