Kochu Kunju Narayanan v. Kochu Velayudhan — 1980 DIGILAW 358 (KER)

JUDGMENT Balakrishna Menon, J. 1. The plaintiff in O. S. No. 165 of 1970 on the file of the Munsiff's Court, Kanjirappally is the appellant. The suit is for a declaration that Ext. P6 sale deed dated 23-6-1961 in the name of the 1st defendant is benami for the plaintiff and that he is the owner of the property in possession of the same Defendants 2 and 3 are said to be in occupation of a portion of the building in the property as tenants under the plaintiff. The suit was later amended and a claim for recovery of possession of one room in the building is also added on the allegation that the defendants 1 and 4 to 6 trespassed into the house in the property and occupied one room on 11-12-1972. The suit property is 5 cents of land with a building thereon. Two separate portions of the building are admittedly in the occupation of defendants 2 and 3 and their occupation according to the plaintiff is as tenants under him Defendants 4 to 6 are the wife and children of the 1st defendant. They were impleaded in the suit on account of the alleged trespass on 11-12-1972. The suit was contested by the Ist defendant. He denied the plea of benami set up by the plaintiff and contended that the property belongs to him as per Ext. P6 sale deed in his favour, that defendants 2 and 3 are in occupation on permission granted by him, that he is in possession of the remaining extent of the property and he is staying in the house with his wife and children who were subsequently impleaded as defendants 4 to 6. The 4th defendant filed a written statement setting up title in her husband the 1st defendant as per Ext. P6 sale deed in his favour and contended that she is residing with her husband in the house in the suit property. Even though a written statement was filed by the 4th defendant, defendants 2, 3 4 and 6 remained ex parte. Issue (1) in the suit was whether the plaint properties were acquired in the name of the Ist defendant for and on behalf of the plaintiff. The trial court on this issue found that the benami alleged is not proved and that the plaintiff has not proved that Ext. Issue (1) in the suit was whether the plaint properties were acquired in the name of the Ist defendant for and on behalf of the plaintiff. The trial court on this issue found that the benami alleged is not proved and that the plaintiff has not proved that Ext. P6 sale deed in the name of the 1st defendant is for his benefit. Additional issue No. 6 in the suit was whether defendants 1, 4, 5 and 6 have trespassed into one room in the suit building as alleged in the plaint. On this issue it was found as follows:- "In view of my finding on the foregoing issues it follows that the story of trespass alleged to be committed by the 1st defendant into a room of the plaint building subsequent to the suit is false. The 1st defendant being in possession of the suit property under valid title under Ext. P6, he is not liable to be evicted. As such, the question of mesne profits does not arise. Issues 6, 7 and 8 are found against the plaintiff." On issue 2, it was found that the plaintiff has no possession of the suit property and that the 1st defendant is in possession. On these findings, the suit was dismissed by the trial court. Against this, the plaintiff preferred A. S. No. 165 of 1971, Sub Court, Kottayam. Pending appeal, the 4th defendant died. Thereupon the plaintiff appellant filed a petition I.A. No. 287 of 1974 stating that there is no need to implead the legal representatives of the deceased 4th respondent in the appeal. This petition was merely recorded by the lower appellate court. The appeal was thereafter dismissed by judgment dated 30-6-1975 holding that on account of the death of the 4th respondent, the appeal abates as against the 4th respondent and for that reason it cannot be proceeded with even as against the other respondents who are defendants 1 to 3, 5 and 6. The Second Appeal is by the plaintiff against this decision of the lower appellate court dismissing the appeal on the preliminary point that it cannot be proceeded with on account of the abatement of the appeal against the 4th respondent. 2. The learned Counsel for the appellant strongly urges that the 4th respondent in the appeal was only a pro forma party. 2. The learned Counsel for the appellant strongly urges that the 4th respondent in the appeal was only a pro forma party. She had no claim to title in respect to the property and her written statement shows that she was only supporting the defendant her husband contending that the property belongs to him, as per Ext. P6 sale deed in his favour. The contest in the suit was only by the Ist defendant setting up title in himself and in such circumstances there is no abatement of the entire appeal on account of the death of the 4th respondent. As against this the teamed counsel for the contesting Ist respondent contends that for the season of the death of the 4th respondent, the appeal abates not only against the 4th respondent but in its entirety for the reason that it cannot be proceeded with even as against the other respondents in the appeal. In support of this proposition, the learned counsel for the Ist respondent relies on the decision in State of Punjab v. Nathu Ram ( AIR 1962 SC 89 ). In that case a property bringing to two brothers jointly was acquired by the State Government on lease under the Defence of lndia Act. The compensation offered by the Collector was not accepted and an application for reference under R.6 of the Land Acquisition (Defence of India) Rules 1943 was submitted to the State Government, by the two brothers who are joint owners of the property. The State Government referred the question of compensation to an arbitrator for decision under R.10 of the Rules aforesaid. The Arbitrator passed an award enhancing the compensation, against which the State Government appealed to the High Court. During the pendency of the appeal, one of the brothers died and no legal representatives were impleaded on his death The High Court dismissed the appeal as abated. It was in this context the question arose for consideration before the Supreme Court as to whether on the death of one of the joint owners of the property and on account of the abatement of the appeal as against him, whether the appeal could be continued against the surviving respondent, the other joint owner of the property concerned. The Supreme Court held as follows: "7. The Supreme Court held as follows: "7. There has been no divergence between the Courts about the Court's proceeding with the appeal between the respondents other than the deceased respondent, when the decree in appeal was not a joint decree in favour of all the respondents. The abatement of the appeal against the deceased respondent, in such a case, would make the decree in his favour alone final, and this can, in no circumstances, have a repercussion on the decision of the controversy between the appellant and the other decree holders or on the execution of the ultimate decree between them." In Para.8 of the judgment, the Supreme Court further held 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. Even in cases where there is a joint decree in favour of the respondents whose rights in the subject matter of the decree are specified such specification of the shares or the interests 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 in his favour, end in such cases, the abatement of an appeal against one of the joint decree holders means not merely 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 the present case, no such question of a joint decree in favour of the respondents would arise. The only question for decision was as to the title to the suit property, whether the same vests in the plaintiff or in the 1st defendant. The deceased 4th respondent had no claim to title She was only supporting 1st defendant that as per Ext. P6 the property belonged to him. The only question for decision was as to the title to the suit property, whether the same vests in the plaintiff or in the 1st defendant. The deceased 4th respondent had no claim to title She was only supporting 1st defendant that as per Ext. P6 the property belonged to him. The three tests laid down by the Supreme Court in the above decision to hold that the appeal cannot be proceeded with, are: (1) In case the appeal is allowed against the surviving respondents, there will be a conflict of decisions between the appellant and the surviving respondents on the one hand, and between the appellant and the deceased respondent on the other; (2) in cases where the appellant could not have brought the action against the respondents alone who are still before the Court; and (3) that the decree against the surviving respondents if the appeal succeeds be ineffective that is to say, it could not be successfully executed. These tests are held to be not cumulative and any of the reasons enumerated is sufficient to hold that the appeal cannot be proceeded with against the surviving respondents. In the present case, there is no question of any conflict of decisions as the 4th respondent had setup only the title of the 1st respondent, her only case being that she is residing with her husband in the suit property the title to which vests in the 1st defendant. It is also clear from the pleadings in the case that a suit could have been brought without the 4th respondent and an effective decree could have been obtained by the plaintiff in case he succeeds to prove his case. Any of the three tests will not be satisfied to hold that the entire appeal abates. In case the appeal is allowed and a decree is passed in favour of the plaintiff for recovery of possession of the property, the same could be executed against the surviving respondents already on record. The possible resistance to execution by the legal representatives of the 4th respondent can only be on the basis of her contention that the title to the property vests in the 1st defendant. The 1st defendant is the 1st respondent in the appeal and I fail to see how a decree that can be obtained by the plaintiff on his success in the appeal cannot be successfully executed. 3. The 1st defendant is the 1st respondent in the appeal and I fail to see how a decree that can be obtained by the plaintiff on his success in the appeal cannot be successfully executed. 3. Reliance was placed by the learned counsel for the respondents on the decision in Ram Sarup & others v. Munshi and others ( AIR 1963 SC 553 ). In that case the question arose whether on the death of the 1st appellant before the Supreme Court, the appeal could be proceeded with at the instance of the surviving appellants without the legal representatives of the deceased appellant having been brought on record in the appeal. The facts of the case were that respondents 5 and 6 had sold certain agricultural lands to the five appellants before the Supreme Court. Respondents 1 to 4 instituted a suit for preemption claiming rights under S.15 of the Punjab Preemption Act of 1913. The suit was decreed and confirmed in appeal and second appeal. It was against this, that the appeal was filed by the alienees of the property from respondents 5 and 6. It is in this context that the Supreme Court held that the decree for preemption became final against the deceased appellant for the non impleadment of his legal representatives and in such a case, the appeal cannot be proceeded with at the instance of the surviving appellants, for the reason that the interests of the deceased appellant do not devolve on the surviving appellants. On a perusal of the document of sale in favour of the appellants, the Supreme Court held at Para.4 of its judgment as follows: "4 ......... It is therefore not a case of a sale of any separated item of property in favour of the deceased appellant but of one entire set of properties to be enjoyed by two sets of vendees in equal shares. It is clear law that there can be no partial preemption because preemption is the substitution of the preemptor in place of the vendee and if the decree in favour of the preemptors in respect of the share of the deceased Mehar Singh has become final it is manifest that there would be two conflicting decrees if the appeal should be allowed and a decree for preemption in so far as appellants 2 to 5 are concerned is interfered with. Where a decree is a joint one and a part of the decree has become final, by reason of abatement, the entire appeal must be held to be abated." In the above case, the decree that may have to be passed in case the appeal is allowed by the Supreme Court can only be a joint decree for the reason stated by the Supreme Court that a decree for preemption cannot be a decree in severally and on such circumstances the Supreme Court held that on the death of one of the of the appellants, the entire appeal cannot be proceeded with for the reason that in allowing the appeal, the decree that has become final against the deceased appellant, will be in conflict with the decree that may be passed by the appellate court. No such question arises in the case before me. 4. Reliance is next placed on the decision in Rameshwar Prasad and others v. Shambehari Lal Jagannath and Others ( AIR 1963 SC 1901 ) In that case nine plaintiffs filed a suit for ejectment of defendants 1 and 2 on the allegation that the 1st defendant was the tenant in chief, who had sublet the premises to the 2nd defendant. The suit was decreed for eviction of both defendants and for arrears of rent against the 1st defendant. On appeal by the 2nd defendant, the District Judge set aside the decree for ejectment against the 2nd defendant and confirmed the decree against the 1st defendant in all other respects It is against this that the 9 plaintiffs filed a second appeal before the High Court. The 3rd appellant died pending the second appeal. An application filed to condone the delay in bringing on record his legal representatives and another application for substitution of the name of the 3rd appellant by the names of his legal representatives were both dismissed by the High Court and the question arose whether on the death of the 3rd appellant and abatement of the appeal as against him the appeal could be proceeded with at the instance of the remaining appellants. Whether a decree could be granted in favour of the surviving appellants on the principle of O.41, R.4 was one of the questions considered by the Supreme Court and it was held that O.41, R.4 Can apply only at the stage of the institution of the appeal and that once an appeal has been filed by all the plaintiffs, the provisions of O.41, R.4 will not be available. O.22 operated during the pendency of an appeal and if some party dies his legal representatives have to be brought on record within the period of limitation. In Para.16 of the judgment, the Supreme Court held: "16. We do not consider it necessary to discuss the cases referred to at the hearing. Suffice it to say that the majority of the High Courts have taken the correct view viz., that the 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 O.41, R.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 O.21, R.3." In Para.15 of the judgment, the Supreme Court has made reference to the decision in State of Punjab v. Nathu Ram ( AIR 1962 SC 89 ) and on the principle laid down therein, it was held that on the abatement of the appeal against one of the appellants on his death the entire appeal cannot be proceeded with, in cases where the appellate court cannot determine anything between the appellant and the legal representatives of the deceased appellant, which may affect the rights of the legal representatives under the decree. 5. Reliance is placed on the decision of the Supreme Court in Sri. Chand and Others v. M/s. Jagdish Pershad Kishan Chand and Others ( AIR 1966 SC 1427 ). This decision follows the decision in AIR 1962 SC 89 , and holds that on the death of one of the appellants incases where the decree against the defendant is joint and indivisible the entire appeal abates. Chand and Others v. M/s. Jagdish Pershad Kishan Chand and Others ( AIR 1966 SC 1427 ). This decision follows the decision in AIR 1962 SC 89 , and holds that on the death of one of the appellants incases where the decree against the defendant is joint and indivisible the entire appeal abates. The same view is expressed in the decision in Babu Sukhram Singh v Ram Dular Singh and others ( AIR 1973 SC 204 ), wherein it is held that in cases where there is a joint claim against several defendants, and the appeal abates against one of them who dies pending appeal, the appeal cannot be proceeded with even against the surviving defendants. In that case, the suit was for a mandatory injunction against 39 defendants directing them to demolish the construction on the disputed land and also to fill up the pits and nalahs on the land and for recovery of possession of the property and damages. The trial court decreed the suit. The lower appellate court partly allowed the appeal and decreed the suit in part. In further appeal to the High Court by the defendants the entire suit was dismissed and the appeal to the Supreme Court was by the plaintiff against the dismissal of the suit by the High Court. During the pendency of the appeal before the Supreme Court some of the defendants died and no steps were taken to implead their legal representatives. It was in this context, the Supreme Court held as follows:- "Now the question is whether the appeal has abated or not. As seen earlier in the plaint a joint claim is made against all the defendants. The first appellate court, as mentioned earlier, decreed the suit in part against all the defendants. The High Court has dismissed the suit against all the defendants. In this Court relief asked for was against all the defendants. No separate claim was made against any of the defendants, under these circumstances, quite clearly the appeal has abated as a whole under O.22, R.4 of the Civil Procedure Code." That was also a case where there was a joint claim against all the defendants and there was no separate claim against the surviving defendants. No separate claim was made against any of the defendants, under these circumstances, quite clearly the appeal has abated as a whole under O.22, R.4 of the Civil Procedure Code." That was also a case where there was a joint claim against all the defendants and there was no separate claim against the surviving defendants. The joint claim principally was for a mandatory injunction as stated above, and the Supreme Court held that the entire appeal abates This decision does not apply to the facts of the present case. Here the relief claimed is principally against the 1st defendant. Incase the plaintiff succeeds in his appeal the decree will be declaring his title as against the title claimed by the 1st defendant and a consequential decree for removal of trespass by the 1st defendant can also be passed the 4th defendant who died pending the appeal had no independent claim of title to the suit property and on her death the consequence can only be that the trespass if any that may be found in the appeal by her no longer continues. 6. The learned Counsel for the respondents next cited the decision in Ramagya Prasad Gupta & Others v. Brahmadeo Prasad Gupta and Another ( AIR 1972 SC 1181 ). In Para.16 of this decision reference is made to the decision in AIR 1962 SC 89 and the three tests laid down therein. I have already dealt with this aspect and none of the three tests laid down by the Supreme Court will in any way bar the appeal against the surviving respondents who are defendants 1 to 3, 5 and 6. As against these decisions cited by the respondents' Counsel, the learned Counsel for the appellant relies on the decision in Municipal Board, Lucknow v. Pannalal Bhargava and Others ( AIR 1976 SC 1091 ). It was an appeal by the plaintiff, before the Supreme Court. The suit was by the Municipal Board. Lucknow for accounts against seven defendants and for a decree for such amount as may be found due against the defendants. Two issues in the suit were taken as preliminary issues one regarding the maintainability of the suit, and the other as to whether the suit was barred by limitation. The trial court answered both the issues against the plaintiff Municipal Board. Two issues in the suit were taken as preliminary issues one regarding the maintainability of the suit, and the other as to whether the suit was barred by limitation. The trial court answered both the issues against the plaintiff Municipal Board. In appeal, the High Court decided the issue relating to the maintainability of the suit in favour of the plaintiff and set aside the decision of the trial court holding that the suit against defendants 1 to 3 was not barred by limitation. The decree of the trial court was however confirmed in respect of the 5th defendant Mohd. Yusuf holding that the suit was barred by limitation as against him under S.326 of the U. P. Municipalities Act. Pending the appeal by the plaintiff before the Supreme Court, the 5th respondent Mohd. Yusuf died and the question arose whether the appeal could be proceeded against the remaining respondents. The Supreme Court at Para.5 of its judgment stated as follows: "5. We are, however, unable to agree that the question of abatement in this case would arise in view at the fact that even if the suit had been dismissed against defendant 5, the defendants 1 to 3 could individually be sued for rendering accounts and for recovery of the amount due from them. Whether they would be ultimately found by the Court to be liable for the plaintiff's claim, is a different matter and will be decided in the suit. There is therefore, no substance in the plea that the appeal as a whole has abated on account of the death of Mohd. Yusuf." In the present case also a decree can effectively be passed against the surviving respondents in the appeal, as the question for decision in the suit was relating to the conflicting claims to title to the suit property put forward by the plaintiff and the 1st defendant. The suit as against the 4th defendant was dismissed on the finding on issue 6 by the trial court that the trespass alleged against her has not been proved. That could only mean that there is no finding against her that she has trespassed upon the suit property. In case the appeal is allowed, an effective decree can be passed against the surviving respondents. 7. That could only mean that there is no finding against her that she has trespassed upon the suit property. In case the appeal is allowed, an effective decree can be passed against the surviving respondents. 7. There is yet another point urged by the learned Counsel for the appellant in support of his contention that there is no abatement of the appeal for the reason of the death of the 4th respondent. The Ist respondent in the appeal is her husband and respondents 5 and 6 are her children. Hence three of the legal representatives of the deceased 4th respondent were already on record before the lower appellate court as parties to the appeal. In such circumstances, there will be no abatement of the appeal and the court below was wrong in dismissing the entire appeal as abated. 8. The learned Counsel relies on the decision of the Supreme Court in N. Jayaram Reddi & Another v. The Revenue Divisional Officer and Land Acquisition Officer, Kurnool ( AIR 1979 SC 1393 ). Following the decision in Mahabir Prasad's case ( AIR 1971 SC 742 ), the Supreme Court stated as follows:- "30. Another principle in this behalf which has found recognition of the Courts is that if the legal representatives of the deceased party are before the Court in the same action even if in another capacity, failure to bring them on record in a specific legal position would not result in abatement of the action. In Mahabir Prasad v. Jage Ram, ( 1971 (3) SCR 301 : AIR 1971 SC 742 ), this Court was called upon to consider whether where a legal representative of a deceased party is on record in another capacity, failure to implead him as legal representative of the deceased party would result in abatement of the action? In that case Mahabir Prasad, his wife Saroj Devi and his mother Gunwanti Devi filed a suit against Jage Ram and two others for recovering rent then due in the aggregate amount of Rs. 61,750. The suit ended in a decree. The execution of the decree was resisted by the defendants on the plea inter alia that the decree was in executable because of the provisions of Delhi Land Reforms Act, 1954. This contention found favour with the executing court and the application for execution was dismissed. 61,750. The suit ended in a decree. The execution of the decree was resisted by the defendants on the plea inter alia that the decree was in executable because of the provisions of Delhi Land Reforms Act, 1954. This contention found favour with the executing court and the application for execution was dismissed. Mahabir Prasad, one of the decree holders alone appealed against that order and impleaded Gunwanti Devi and Saroj Devi as party respondents along with the original judgment debtors. Saroj Devi died in November 1962 and Mahabir Prasad applied that the name of Saroj Devi be struck off from the array of respondents. The High Court made an order granting the application subject to all just exceptions". Subsequently the High Court dismissed the appeal holding that because the heirs and legal representatives of Saroj Devi were not brought on record within the period of limitation, the appeal abated in its entirety. This Court, while setting aside the order made by the High Court holding that the appeal abated, observed as under (at p. 744 of AIR); "Even on the alternative ground that Mahabir Prasad being one of the heirs of Saroj Devi there can be no abatement merely because no formal application for showing Mahabir Prasad as an heir and legal representative of Saroj Devi was made. Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate." 31. The principle deducible from this decision of the Court is that where one of the legal representatives of the deceased party is before the Court at the time when the proceeding is heard but in another capacity, it is immaterial whether he is described as such or not and even if there are other legal representatives, the cause will not abate." 9. It is thus clear that looked from either point of view there is no abatement of the entire appeal. The decision of the court below is clearly wrong in law and cannot be sustained. It is thus clear that looked from either point of view there is no abatement of the entire appeal. The decision of the court below is clearly wrong in law and cannot be sustained. The result is I allow the Second Appeal, set aside the judgment and decree of the lower appellate court and remand the case to that court for decision of the appeal on merits and in accordance with law. The parties will bear their respective costs in this Second Appeal. The court fee paid on the memorandum of appeal will be refunded to the Counsel for the appellant. Parties will appear before the lower court on 27-1-1981.