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2011 DIGILAW 1306 (BOM)

Ramrao Joti Godase v. Kisan Joti Godase

2011-10-17

GIRISH GODBOLE

body2011
Judgment : 1. Heard Mr. Talkute, Advocate for the Appellants and Mr. Umesh Mankapure, Advocate for the Respondent Nos. 1 to 3. 2. On 12/9/2011 following order was passed: “1. Heard Mr. Talkute, Advoate for the Applicants and Mr. Mankapure, Advocate for Respondents. Copy is not served on the Advocate Mr. Mankapure. 2. Considering the prayers in these Civil Applications, the same are being disposed off by hearing Advocate Mr. Talkute. Respondent No. 5 Bhagirathibai Maruti Dhane died on 15/4/2009 and Respondent No. 6 Gangubai Khashaba Kurne died on 6/1/2008; both during the pendency of the Civil Appeal No. 149 of 2004 in the District Court at Satara. Hence, abatement, if any, as against them, has taken place in the District Court itself and hence, there is no question of either delay or setting aside abatement. In view of this, both the Civil Applications are dismissed as not maintainable. 3. The question regarding the legal effect of the death of the said Respondents on the merits of the aforesaid Appeal in the District Court will be considered at the time of hearing the Second Appeal for admission, which is not yet admitted. For that purpose, retain a copy of this order in the original order sheet of the Second Appeal. 4. Place the Second Appeal for admission after 4 weeks.” Accordingly Appeal is placed for admission. 3. The Second Appeal is admitted by framing following questions of law: (a) Whether on account of the death of Bhagirathi (original Defendant No. 3) and Gangubai (original Defendant No. 6) during the pendency of the Regular Civil Appeal No. 149 of 2004 in the District Court at Satara, which Appeal arose out of a Suit for partition and separate possession, the said Appeal would abate only qua the deceased Defendants who were Appellant Nos. 3 and 6 in the said Appeal or whether the entire Appeal would abate? (b) If the entire Appeal abates, whether the impugned Judgment and Decree dated 30th March, 2010 passed by the learned Extra Joint Ad-hoc District Judge, Satara in Regular Civil Appeal No. 149 of 2004 is a nullity? 4. The Second Appeal is taken up on board for final hearing forthwith with the consent of the Advocates for the Appellants and the Respondent Nos. 1 to 3. Respondent Nos. 4. The Second Appeal is taken up on board for final hearing forthwith with the consent of the Advocates for the Appellants and the Respondent Nos. 1 to 3. Respondent Nos. 5 and 6 are deceased Bhagirathi and Gangubai and the Appeal in the District Court had abated qua them and hence they are unnecessarily joined as parties. The Respondent No. 4 had been impleaded in the Suit in his capacity as Trustee of Defendant No. 7 which was a formal Defendant and had been proceeded exparte both in the Suit and in the Appeal in the District Court. Hence on the application of the Advocate for the Appellants, service on the said Respondent No. 7 is waived as the same is completely unnecessary. I have therefore, proceeded to hear the Appeal on the aforesaid 2 questions of law which have been framed. 5. Said Bhagirathibai Maruti Dhane was original Defendant No. 3 and Gangubai Khashaba Kurne was original Defendant No. 6 and both had been granted 8.125 units share out of 100 Units in Civil Appeal No. 149 of 2004. Bhagirathibai and Gangubai were Appellant No. 3 and 6 respectively. Since both of them had died during the pendency of the Appeal in the District Court, the Appeal had abated as against them. The legal effect of such situation is no longer res integra and I propose to indicate the reasons for holding that the Civil Appeal No. 149 of 2004 abates in its entirety in the District Court itself and consequently Judgment and Decree of the Trial Court had attained finality. 6. In BudhRam & ors. v/s Bansi & & Ors AIR 2010 SCW 5071,the Supreme Court has held thus: 12. Abatement takes place automatically by application of law without any order of the court. Setting aside of abatement can be sought once the suit stands abated. Abatement in fact results in denial to hearing of the case on merits. Order XXII Rule 1 CPC deals with the question of abatement on the death of the plaintiff or of the defendant in a Civil Suit. Order XXII Rule 2 relates to procedure where one of the several plaintiffs or the defendants die and the right to sue survives. Order XXII Rule 3 CPC deals with procedure in case of death of one of the several plaintiffs or of the sole plaintiff. Order XXII Rule 2 relates to procedure where one of the several plaintiffs or the defendants die and the right to sue survives. Order XXII Rule 3 CPC deals with procedure in case of death of one of the several plaintiffs or of the sole plaintiff. Order XXII Rule 4 CPC, however, deals with procedure in case of death of one of the several defendants or of the sole defendants. Sub-clause (3) of Rule 4 makes it crystal clear that where within the time limited by law, no application is made under sub-Rule 1, the suit shall abate as against the deceased defendant. 13. Provisions of Order XXII Rule 4 (4) CPC, provide that in case, the deceased defendant did not contest the suit and did not file a counter affidavit, the substitution may not be warranted. In the instant case, the High Court repelled the submission regarding application of Order XXII Rule 4(4) CPC on the ground that the said provision requires the presentation of an application before the Court, before it pronounces its judgment for seeking such a relief and once such an application is allowed, in that case, it can only be taken against the said defendant notwithstanding the death of such defendant and such a decree shall have the same force and effect as if it was pronounced before the death had taken place. This view stands fortified by the Judgments of this Court in ZahirulIslam Vs. Mohd. Usman & Ors. (2003) 1 SCC 476 ; and T. Gnanavel Vs. T.S. Kanagaraj & Anr. AIR 2009 SC 2367 . Thus, it has rightly been held by the High Court that the provisions of Order XXII Rule 4(4) CPC were not attracted in the facts of this case. 16. In RamagyaPrasad Gupta & Ors. Vs. Brahmadeo Prasad Gupta & Anr. AIR 1972 SC 1181 , this Court examined the same issue in a case of dissolution of a partnership firm and accounts and placed reliance upon two judgments referred to immediately hereinabove and held as under: "16. 16. In RamagyaPrasad Gupta & Ors. Vs. Brahmadeo Prasad Gupta & Anr. AIR 1972 SC 1181 , this Court examined the same issue in a case of dissolution of a partnership firm and accounts and placed reliance upon two judgments referred to immediately hereinabove and held as under: "16. ........The 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 may be in conflict with the decision between the appellant and the deceased respondent and, therefore, it 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. These three testes are not cumulative tests. Even if one of them is satisfied, the court may dismiss the appeal". (Emphasis added) 17. In SardarAmarjit Singh Kalra & Ors. Vs. Pramod Gupta & Ors. These three testes are not cumulative tests. Even if one of them is satisfied, the court may dismiss the appeal". (Emphasis added) 17. In SardarAmarjit Singh Kalra & Ors. Vs. Pramod Gupta & Ors. AIR 2003 SC 2588 , a Constitution Bench of this Court, while dealing with the similar issue, has after considering large number of judgments of this Court, reached the following conclusion :- "(a) In case of "Joint and indivisible decree", "Joint and inseparable or inseparable decree", the abatement of proceedings in relation to one or more of the appellant(s) or respondent(s) on account of omission or lapse and failure to bring on record his or their legal representatives in time would prove fatal to the entire appeal and require to be dismissed in toto as otherwise inconsistent or contradictory decrees would result and proper reliefs could not be granted, conflicting with the one which had already become final with respect to the same subject matter vis-a-vis the others; (b) the question as to whether the Court can deal with an appeal after it abates against one or the other would depend upon the facts of each case and no exhaustive statement or analysis could be made about all such circumstances wherein it would or would not be possible to proceed with the appeal, despite abatement, partially; (c) existence of a joint right as distinguished from tenancy in common alone is not the criteria but the joint character of the decree, dehors the relationship of the parties inter se and the frame of the appeal, will take colour from the nature of the decree challenged; (d) where the dispute between two groups of parties centerd around claims or based on grounds common relating to the respective groups litigating as distinct groups or bodies – the issue involved for consideration in such class of cases would be one and indivisible; and (e) when the issues involved in more than one appeals dealt with as group or batch of appeals, which are common and identical in all such cases, abatement of one or the other of the connected appeals due to the death of one or more of the parties and failure to bring on record the legal representatives of the deceased parties, would result in the abatement of all appeals." (Emphasis added) The Court further observed that any relief granted and the decree ultimately passed, would become totally unenforceable and mutually self-destructive and unworkable vis-a-vis the other part, which had become final. The appeal has to be declared abated in toto. It is the duty of the court to preserve and protect the rights of the parties. 18. In ShahazadaBi & Ors. Vs. Halimabi AIR 2004 SC 3942 , this Court considered the same issue and held as under:- "..................That, so far as the statute is concerned, the appeal abates only qua the deceased respondent, but the question whether the partial abatement leads to an abatement of the appeal in its entirety depends upon general principles. If the case is of such a nature that the absence of the legal representative of the deceased respondent prevents the Court from hearing the appeal as against the other respondents, then the appeal abates in to. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject matter. The Court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the Court has no alternative but to dismiss the appeal as a whole. If, on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the Court should not hear the appeal and adjudicate upon the dispute between the parties." (Emphasis added) 7. This Judgment has followed the test laid down in the case of RamagyaPrasad Gupta v/s. Murli Prasad in AIR 1972 SC 1181 ,where 3 tests were laid down. The Constitution Bench Judgment of the Supreme Court in Sardar Amarjit Singh Kalra (supra) also lays down the said test. 8. Similar principles have been laid down in the following Judgments of the Learned Single Judges & Division Bench of this Court: (1) Govind Laxman Jadhav v/s. Namdeo Balu Jadhav 2005(1) Bom. C.R. 278 (A.S. Oka, J). (2)Govind Vishwanath Bansode & Anr. v/s. Manika Gangaram Bansode & ors. 2008(5) All M.R. 555 (V.R. Kingaonkar, J). (3)Smt. Annabai Devram Kini & ors. v/s. Mithilal Daisangar Singh & ors. 2002(3) All M.R. 364 (Division Bench of A.P. Shah and V.K. Tahilramani, JJ) 9. In the case of DwarikaPrasad v/s. Nirmala & ors. 2010 (3) Mh. (2)Govind Vishwanath Bansode & Anr. v/s. Manika Gangaram Bansode & ors. 2008(5) All M.R. 555 (V.R. Kingaonkar, J). (3)Smt. Annabai Devram Kini & ors. v/s. Mithilal Daisangar Singh & ors. 2002(3) All M.R. 364 (Division Bench of A.P. Shah and V.K. Tahilramani, JJ) 9. In the case of DwarikaPrasad v/s. Nirmala & ors. 2010 (3) Mh. L.J.417,the Supreme Court has observed thus: “7. This Court has heard the learned counsel for the parties at length and considered the record of the case. The argument that the respondent No. 1 was not entitled to file application for restoration of the suit filed by her late father, as right to sue did not survive in favour of the respondent No. 1 has no merit. It is well settled that where the right to sue is personal to the deceased, the same does not survive for the benefit of his legal representatives. There is no manner of doubt that late father of the respondent No. 1 had filed suit for partition of the joint properties. On his death right to sue survived and the respondent No. 1 being his daughter and legal representative was entitled to continue the suit in view of the provisions of Hindu Succession Act. The deceased who was a male Hindu, claimed interest in the joint properties which are subject matter of suit for partition. The record does not indicate that he had executed a Will though the appellant claimed that he had executed a Will in favour of Vijai Kumar. It may be mentioned that the said Vijai Kumar has not applied for being impleaded as a party to the proceedings nor claimed interest in the properties of the deceased. He, having died intestate, his share in the joint properties shall devolve by intestate succession as provided by Section 6 of the Hindu Succession Act, 1956. Section 8 of the said Act which deals with general rules of succession in the case of males, inter alia, provides that the property of a male Hindu dying intestate shall devolve firstly upon the heirs, being relatives specified in Class I of the Schedule to the Act. A daughter is specified as one of the relatives in Class I of the Schedule. Therefore, there is no manner of doubt that the share of the deceased plaintiff in the suit properties would devolve upon her, if suit for partition is decreed. A daughter is specified as one of the relatives in Class I of the Schedule. Therefore, there is no manner of doubt that the share of the deceased plaintiff in the suit properties would devolve upon her, if suit for partition is decreed. Rule 3 of Order XXII CPC, inter alia, stipulates that when a sole plaintiff dies and the right to sue survives, the Court on an application made in that behalf, should cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Thus, the respondent No.1 was entitled to be substituted in place of her deceased father. The record shows that she came to know later on that fraud had been committed while getting Civil Suit No. 3A of 1996 dismissed as withdrawn. Hence, she was entitled to file application for restoration of the suit. Thus, it is not correct to argue that the respondent No. 1 was not entitled to file application for restoration of the suit filed by her father for partition of the joint properties.” 10. The Supreme Court of India in the case of JaladiSuguna v/s. Satya Sai Central Trust & ors. 2008 (7 ) SCR 734has held thus: “14. When a respondent in an appeal dies, and the right to sue survives, the legal representatives of the deceased respondent have to be brought on record before the court can proceed further in the appeal. Where the respondent-plaintiff who has succeeded in a suit, dies during the pendency of the appeal, any judgment rendered on hearing the appeal filed by the defendant, without bringing the legal representatives of the deceased respondent - plaintiff on record, will be a nullity. In the appeal before the High Court, the first respondent therein (Suguna) was the contesting respondent and the second respondent (tenant) was only a proforma respondent. When first respondent in the appeal died, the right to prosecute the appeal survived against her estate. Therefore it was necessary to bring the legal representative/s of the deceased Suguna on record to proceed with the appeal.” The Supreme Court has clearly held that if the entire Appeal abates, then Judgment delivered in such an Appeal is a nullity. This principle of law is also restated in the Judgment of Ambalal v/s. Gopal & ors AIR 2001 SCW 1996 . 11. This principle of law is also restated in the Judgment of Ambalal v/s. Gopal & ors AIR 2001 SCW 1996 . 11. Present case is obviously one which falls within the category of 3 cases laid down by the Supreme court. The suit is for partition and separate possession. Different shares had been allotted to the Plaintiff and Defendants. The Defendant Nos. 3 and 6 were aggrieved by the shares allotted and hence filed an Appeal alongwith the other Defendants. The Defendant No. 3 died during the pendency of the Appeal and it is an admitted position that the heirs are not brought on record. Obviously the Appeal abates as against the Defendant No. 3. However, considering the nature of the controversy where the Suit was for partition, success of such an Appeal would have led to the Courts coming to a decision which may be in conflict with the decision between the deceased Appellant and the Respondent and that would have resulted in the Court passing a Decree which will be contradictory to the Decree which has become final with respect to the same subject matter between the deceased Appellants and the Respondents. Remaining Appellants could not have independently filed an Appeal when the deceased Defendant Nos. 3 and 6 were not being represented before the Court. The District Court in the present case was not well informed about the dates of death of Bhagirathibai and Gangubai and ignorant of such fact, the Appeal was dismissed but the cross-objection filed by the original Plaintiffs were allowed. Even the original Plaintiffs have not taken any steps for bringing heirs of Appellant Nos. 3 and 6 on record in their cross-objections. Consequently not only the entire Appeal but the entire cross-objections abate. 12. Following the ratio laid down by the Supreme Court in the case of Jaladi Suguna (supra) the conclusion is inevitable that the entire Appeal and Cross-objection before the District Court had abated. Hence on that ground itself the Second Appeal has to be allowed and the Decree of the Trial Court will stand restored. Hence I pass following order: (i) Second Appeal is allowed. Impugned Judgment and Order dated 30/3/2010 in Civil Appeal No. 149/2004 in the District Court at Satara is quashed and set aside. It is held that the said Appeal had abated in its entirety. Hence I pass following order: (i) Second Appeal is allowed. Impugned Judgment and Order dated 30/3/2010 in Civil Appeal No. 149/2004 in the District Court at Satara is quashed and set aside. It is held that the said Appeal had abated in its entirety. Consequently the Judgment and Decree dated 16/12/2003 passed by the learned V-th Joint Civil Judge, Jr. Division, Satara in R.C. Suit No. 679 of 1992 is the only Judgment which survives. It is made clear that if the Appellants in Civil Appeal No. 149 of 2004 file an application for condonation of delay and setting aside abatement of the said Appeal as against the Appellant Nos. 3 and 6 therein or if the Respondents therein wish to adopt such course in so far as their cross-objections are concerned, such course would be open to the respective parties and passing of this order should not be construed as any expression of opinion on merits of such an Application(s) if filed in future. (ii) In view of the disposal of the Second Appeal, Civil Application does not survive. The same is also disposed off.