GOURI AMMA v. GOPALAKRISHNA PANICKER — 1965 DIGILAW 396 (KER)

Judgment :- 1. This second appeal was heard by me on 1121965 and it was posted for delivery of judgment on 612 1965. On going through the records I found that defendants 3 to 6 who were also benefitted by the decree of the lower appellate court dismissing the suit were not made parties to the second appeal and therefore I felt that the appeal was not properly constituted. I mentioned this to the advocates on both sides who requested for a further hearing on this matter. The second appeal was therefore posted again in Chambers on 7121965 when the advocates on both sides were heard. 2. I am of the view that the second appeal has to fail on account of the non-impleading of defendants 3 to 6 as respondents to the appeal. 3. The plaintiff and the first defendant are the daughters of Pappi Amma who died in November 1954. Defendants 2 to 6 are the children of the first defendant. The parties are Nairs governed by the provisions of the Travancore Nair Act. The plaint items were purchased under the sale deed Ext. P-1 dated 1011 1121. Ext. P-1 is in favour of Pappi Amma and defendants 1 to 6. The consideration for Ext. P-1 is Rs. 2000/-. Ext. P-1 contains a recital that Rs. 1000/- was paid by Pappi Amma and the balance of Rs. 1000/-was paid by defendants 1 to 6. According to the plaintiff, Pappi Amma is the owner of one-half of the property comprised in Ext. P-1 and after her death the property devolved on the plaintiff and the first defendant in equal shares, under the provisions of the Travancore Nair Act. 4. The second defendant contended that under Ext. D-1 partition deed of 1104 in the main tarwad of Pappi Amma, the plaintiff got separated from the tavazhi of Pappi Amma and to the tavazhi consisting of Pappi Amma and the first defendant C Schedule property in Ext. D-1 was allotted. The sum of Rs. 2000/-paid for taking Ext. P-1 was by the sale of a properly included in the C schedule in Ext. D-1 and the property comprised in Ext. P-1 is not the separate property of Pappi Amma, but is the sub-tarwad property and the plaintiff cannot claim any right in the plaint items. 5. The trial court took the view that under Ext. P-1 was by the sale of a properly included in the C schedule in Ext. D-1 and the property comprised in Ext. P-1 is not the separate property of Pappi Amma, but is the sub-tarwad property and the plaintiff cannot claim any right in the plaint items. 5. The trial court took the view that under Ext. D-1 every member of Pappi Amma's tarwad got divided and Pappi Amma and the first defendant did not remain as members of a tavazhi but were tenants in common in respect of the properties in C schedule in Ext. D-1. The Munsiff therefore, held that one-half of the property under Ext. P-1 is the separate property of -Pappi Amma which after her death devolved on the plaintiff and the first Defendant in equal shares. 6. The lower appellate court took the view, that the C schedule in Ext. D-1 was allotted to the sakha consisting of Pappi Amma and the first defendant and since Ext. P-1 property was purchased with consideration raised by the sale of a property included in the C schedule in Ext. D-1, the plaintiff could not get a share in the plaint item. 7. The effect of the decree of the lower appellate court is that the sakha of Pappi Amma and defendants 1 to 6 after the separation of the plaintiff continued undivided and that the C schedule property in Ext. D-1 was allotted to that sakha and consequently the plaint property purchased under Ext. P-1 with the sale proceeds of an item of property in C schedule in Ext. D-1 belonged to the sakha of defendants 1 to 6 and that therefore the plaintiff is not entitled to any share in that item. The decree of the lower appellate court is therefore a decree in favour of defendants 3 to 6 as well though they were not parties before the lower appellate court. But in the second appeal defendants 3 to 6 were not impleaded. Any variation of the decree of the lower appellate court by this Court will therefore be to the detriment of defendants 3 to 6 in an appeal to which they are not parties. 8. But in the second appeal defendants 3 to 6 were not impleaded. Any variation of the decree of the lower appellate court by this Court will therefore be to the detriment of defendants 3 to 6 in an appeal to which they are not parties. 8. O.41, R.4 C. P. C. provides that "where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be". O.41, R.33 of the C. P. C. says: "The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection." While R.33 of 0.41 provides that the appellate court has got power to make a proper decree even in cases where the appeal is as to a part only of the decree, R.4 provides that where a decree proceeds upon a ground common to all the plaintiffs or defendants, any one of the plaintiffs or the defendants may appeal from the whole decree, and thereupon the appellate court can reverse or vary the decree in favour of all the plaintiffs or the defendants, as the case may be. The general rule is that on an appeal by one of several plaintiffs or defendants, the appellate court can reverse or vary the decree of the trial court only in Favour of the party appealing. 0.41, R.4 and 33 are exceptions to this rule and give the appellate court ample power to pass the appropriate decree needed in the interests of justice. The word "parties" in R.33 of 0.41 is intended to connote persons who were parties in the trial court but not in the appeal. 0.41, R.4 and 33 are exceptions to this rule and give the appellate court ample power to pass the appropriate decree needed in the interests of justice. The word "parties" in R.33 of 0.41 is intended to connote persons who were parties in the trial court but not in the appeal. Justice B. K. Mukherjea in Sir Hari Sankar Pal v. Ananth Nath Mitter AIR. 1949 F. C. 106 at 111 observed: "Order 41, R.33, Civil P. C., is a purely enabling provision which enables the appellate Court to exercise certain powers in favour of a party who has not filed the appeal if the circumstances of the case and the interests of justice so require." Under the rules a decree against several persons one of whom alone appeals can be reversed as against the rest when it proceeds on any ground common to all of therm The rules can apply only when the lower court has proceeded upon a ground common to all the plaintiffs or defendants and not when the appellate court considers that the decree is on a ground common to all. The decree of the trial court proceeded on a ground common to defendants 1 to 6. Thus it can be seen that even though defendants 3 to 6 did not file an appeal against the decree of the trial court j and Were not impleaded as parties in the appeal filed by respondents 1 and 2 the lower appellate court acted well within its jurisdiction when it varied the decree and dismissed the suit even against defendants 3 to 6. The decretal portion of the judgment of the lower appellate court is "the suit is dismissed with costs in both the courts." By this the suit against defendants 3 to 6 was also dismissed by the j lower appellate court. There can therefore be no doubt that the lower appellate 3 court reversed the decree of the trial court even in favour of defendants 3 to 6 who j were not parties in exercise of its powers under O.41, R.4 and 33 of the CPC. If that is so, it is not possible to vary the decree of the lower appellate court to the detriment of defendants 3 to 6 without hearing them. If that is so, it is not possible to vary the decree of the lower appellate court to the detriment of defendants 3 to 6 without hearing them. The effect of O.41, R.4 and R.33 will not enable the appellate court to pass a decree to the prejudice of a person who has not been given a hearing. It is an admitted fact in this case that the decree of the trial court was passed on a ground common to all the defendants. If this Court were to decree the suit against defendants 1 and 2 who are alone the respondents in the second appeal there will be two contradictory decrees in the same litigation with reference to the same subject-matter. If it is possible to deal with the matter in controversy in appeal regarding the rights and interests of defendants 1 and 2 other than that of defendants 3 to 6 it will be possible to deal with the appeal against respondents 1 and 2 alone. In this case the decree passed by the lower appellate court in favour of defendants 1 to 6 is a joint and indivisible decree based on the interpretation of Ext. D-1. It is clear that a court should not be called upon to make two inconsistent decrees about the same property and in order to avoid conflicting decrees the Court has no other alternative but to dismiss the appeal as a whole. IF on the other hand the success of the appeal would not lead to such a result then only it will be possible to hear the appeal with respondents 1 and 2 on the party array. I am satisfied that the result of my interfering with the decision of the lower appellate court as against the respondents in this case will give rise to conflicting decrees and therefore I take the view that the appeal is not properly constituted as regards parties to the appeal. In the result, I dismiss the appeal on this preliminary ground and make no order as to costs in this Court. Dismissed.