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2017 DIGILAW 1137 (ORI)

Betikhai Rout v. Dasarathi Patel

2017-10-12

D.P.CHOUDHURY

body2017
JUDGMENT : DR. D.P. CHOUDHURY, J. 1. These three Misc. cases are taken together for disposal as all these petitions relate to substitution of respondent no.7. So they are being disposed of by this common order. 2. Before going to discuss on the petitions, the story of the plaintiffs needs little elaboration. One Nabaghana Patel being the common ancestor had three sons namely, Iswara, Uchhab and Hari. Rebati is his wife. Nabaghana and Rebati died leaving behind his sons Iswara, Uchhaba and Hari. These brothers and their wives are also dead. Plaintiff no.1 is the son of Iswara. Plaintiff nos.2 to 6 are the sons of Uchhaba. Defendant no.1 is the daughter of Hari. There was no partition of the ancestral suit property between Iswara, Uchhaba and Hari, and during jointness Hari allegedly died on 6.9.1947 leaving behind his widow Bedamati and daughter Betikhai who is appellant before this Court. Bedamati got married to one Ajin Patel. At that time defendant no.1 was minor being brought up by Iswara and Uchhaba who got her married to Jadumani Rout. It is the case of the plaintiffs that father of defendant no.1 died in jointness before 1956. She has no share in the ancestral suit property, but her name was recorded in respect of the suit property in the settlement R.O.R., on their application her name was deleted by the Additional Tahasildar. Against such order, defendant no.1 filed appeal before the Sub-Collector, who allowed the appeal. The plaintiffs filed suit for declaration of right, title and interest of the plaintiffs and defendant nos.2 to 6 and further declaration that defendant no.1 has no right, title and interest thereon. That suit was dismissed against defendant no.1. 3. The appeal was filed before the appellate Court. Learned District Judge, after hearing both parties, set aside the judgment and decree passed by the learned trial court and as such, the right, title and interest of the plaintiffs and defendants 2 to 6 were declared and defendant no.1 has no right, title and interest thereon. Against such appellate order, defendant no.1 filed the present Second Appeal on 11.4.2011 with a petition for condonation of delay under section 5 of the Limitation Act. 4. While the matter stood thus, learned counsel for the appellant filed Misc. Against such appellate order, defendant no.1 filed the present Second Appeal on 11.4.2011 with a petition for condonation of delay under section 5 of the Limitation Act. 4. While the matter stood thus, learned counsel for the appellant filed Misc. Case No.434 of 2015 with a prayer to condone the delay for substituting the legal heirs of respondent no.7, who admittedly died on 2.12.2011 on the ground that the appellant-petitioner while had come to regular medical check up to Bolangir, met one Sulochana Patel, who is daughter of respondent no.7 informed that respondent no.7 died on 2.12.2011. Similarly, she filed Misc. Case no.435 of 2015 to allow the substitution by bringing the legal heirs of the respondent no.7. Besides, another petition is filed by the appellant vide Misc. Case No.436 of 2015 praying to set aside the abatement of the appeal against respondent no.7. All these three petitions were filed on 14.5.2015. 5. Respondents 1 to 6 filed common objection to the aforesaid Misc. Cases. In their objection they admitted that respondent no.7 died on 2.12.2011 leaving behind her legal heirs. They refuted the contention of the appellant that the death of respondent no.7 was not within her knowledge and only after meeting the daughter of respondent no.7 on her way to hospital on 10.5.2015 for medical checkup, came to know about her death. It is specifically stated by respondents 1 to 6 that the appellant had attended the funeral rites and Ekadasah of respondent no.7 and as such the appellant had every knowledge about the death of respondent no.7, but has suppressed the same material facts in her petitions which amply show her negligent attitude. 6. In the objection it is specifically stated that neither the appellant brought the substitution petition within 90 days of the death of respondent no.7 nor brought it within further 60 days to set aside the abatement although the death of respondent no.7 was within her knowledge. Since the appellant lacks nonchalant attitude to pursue the Second Appeal, the present petitions for substituting respondent no.7 after setting aside the abatement and the only dilatory tactics adopted by her to drag the appeal. Since the appellant lacks nonchalant attitude to pursue the Second Appeal, the present petitions for substituting respondent no.7 after setting aside the abatement and the only dilatory tactics adopted by her to drag the appeal. It is also maintained in the objection that since the Hon’ble Supreme Court in the decision in Union of India v. Ram Charan (deceased) through his Legal Representatives; A.I.R. 1964 S.C.215 observed that the limitation starts from the date of death of respondent no.7, but not from the date of knowledge, the present petition filed under section 5 of the Limitation Act does not disclose the sufficient cause to condone delay to file petition from the date of death of respondent no.7. Not only respondent nos.1 to 6 challenge those petitions, but also stated that in view of the abatement against respondent no.7, the entire Second Appeal abate in toto as there is no separate claim against the respondents and the decree being passed jointly and inseparable. So, it is prayed to reject the petitions. 7. Learned counsel for the appellant submitted that the appellant has preferred this appeal against a decision of the appellate court who reversed the finding of the learned trial court. He further stated that there are good points involved in the appeal and on a technical ground but not on merit, the petitions be rejected so as to restore the judgment and decree passed by the learned trial court, where the present appellant had got the order in her favour. Apart from this, learned counsel for the appellant submitted that the appellant is a quite old woman and ailing, unable to move frequently to the outside and on the only occasion of visiting the hospital at Bolangir on 10.5.2015, she met one Sulochana Patel, wife of Dukharam Patel on the way and then came to know that respondent no.7 has expired on 2.12.2011 and thus, took step on 14.5.2015 to file these petitions for substitution, setting aside abatement and to condone the delay to substitute respondent no.7. 8. Learned counsel for the appellant further submitted that respondent nos.1 to 6 have not produced any material to counter the ground of the appellant. 8. Learned counsel for the appellant further submitted that respondent nos.1 to 6 have not produced any material to counter the ground of the appellant. According to him, the appellant was always vigilant and has got keen interest in the matter, but due to her old age and less mobility could not ascertain the date of death of respondent no.7 and the Court should liberally consider her case to condone the delay for setting aside the abatement and substitute her legal heirs and as per Order-22, Rule-4(5) C.P.C. there is clear provision that over and above the period of 90 days for substitution and then 60 days for setting aside abatement, there is further ground available to the appellant for condonation of delay in bringing the substitution of respondent no.7 upon her death. Thus, the appellant being unaware of the death of respondent no.7, but immediately after having knowledge of her death has filed the petitions, the Court should be sympathetic to allow her to substitute the legal heirs of respondent no. 7, otherwise the valuable right of the appellant will remain without being properly adjudicated. It is true that each day of delay should be explained to condone the same, but the specific case of the appellant that she gathered her knowledge only from the daughter of respondent no.7 and having no any other source of information about the death of respondent no.7, there is sufficient cause to condone the delay and allow the appellant to place for disposal of the appeal on merit. 9. Learned counsel for respondents 1 to 6 submitted that the appellant has placed ground of knowledge beyond imagination because she being the relative of respondent no.7 attended the funeral rites of deceased respondent no.7 and as such, she has every knowledge of her death. So, he submitted that the petition under section 5 of the Limitation Act read with Order-22, Rule-4 and Order- 22, Rule-9 C.P.C. should be rejected. He also submitted that not only the appeal has been abated, but due to inseparable and undivided interest of respondent no.7, the entire appeal abates. 10. So, he submitted that the petition under section 5 of the Limitation Act read with Order-22, Rule-4 and Order- 22, Rule-9 C.P.C. should be rejected. He also submitted that not only the appeal has been abated, but due to inseparable and undivided interest of respondent no.7, the entire appeal abates. 10. Learned counsel for respondents 1 to 6 cited the decision reported in the case of Union of India v. Ram Charan (supra) to show that the limitation starts from the date of the death of respondent no.7, but not from the date of knowledge on the part of the appellant of such death. The mere allegation of belated knowledge of death of respondent no.7 is not a sufficient cause, but the reasons leading to for not knowing the death of death within certain time must have to be proved. 11. Before going to the facts of the case, it is necessary to state the law governing the field. Order-22, Rule-4 C.P.C. states in the following manner:- “Order 22 Rule 4. 4. Procedure in case of death of one of several defendants or of sole defendant.- (1) Where one of the two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. [(4) The court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.] [(5) Where,— (a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and (b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.” Order-22, Rule-9 C.P.C. is also placed below for better appreciation. “Order 22 Rule 9 9. Effect of abatement or dismissal.- (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. (3) The provisions of section 5 of the Indian Limitation Act, 1877 (15 of 1877), shall apply to applications under sub-rule (2). [Explanation: Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order.]” 12. The above provisions are very clear to show that the substitution of the party must be filed within 90 days from the date of death. If no substitution is prayed within 90 days, the suit or appeal abates automatically against the deceased respondent. At the same time for setting aside the abatement the appellant on showing sufficient cause as required under section 5 of the Limitation Act. Similarly, if the petition for substitution is prayed within these 60 days, the abatement stands, but Ordr-22, Rule-4(5) C.P.C. allow the plaintiff or defendant to file a petition for condonation of delay, set aside the order of abatement in accordance with the provision of section 5 of the Limitation Act. Thus, there are ample provision to allow a party to take step for bona fide disposal of the suit or appeal so that the trial court or appellate court can adjudicate the claim after condoning the delay. After following the decision in the case of N. Balakrishnan- v. M. Krishnamurthy; (1998) 7 SCC 123 where Their Lordships was pleased to explain the purpose of limitation under law in the following manner at paragraphs- 11 and 12:- “11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [ AIR 1969 SC 575 ] and State of West Bengal v. Administrator, Howrah Municipality [ (1972) 1 SCC 366 ]”. 13. With due regards, the aforesaid view have been also followed in Esha Bhattacharjee V. Managing Committee of Raghunathpur Nafar Academy and others; reported in (2013) 12 SCC 649 . With due regard to the above decisions, it is clear that limitation always depends upon public policy and on the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). The rules of limitation are not meant to destroy the rights of the parties, but to ensure the adjudication of the claims on time so that the litigant can file claim within the time prescribed. 14. The case of Union of India v. Ram Charan (deceased) through his Legal Representatives; A.I.R. 1964 S.C.215 (supra) denotes that limitation application to set aside the abatement of a suit or appeal do start from the date of death of the deceased respondent. The first schedule to Article 171 of the Limitation Act provides that it does not provide limitation to start from the date of appellant’s knowledge thereof. 15. The first schedule to Article 171 of the Limitation Act provides that it does not provide limitation to start from the date of appellant’s knowledge thereof. 15. The Hon’ble Supreme Court in the aforesaid decision has also observed as to how to construe the sufficient cause to condone the delay for setting aside the abatement:- “8. There is no question of construing the expression 'sufficient cause' liberally either because the party in default is the Government or because the question arises in connection with the impleading of the legal representatives of the deceased respondent. The provisions of the Code are with a view to advance the cause of justice. Of course, the Court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time need not be over-strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance. This, however, does not mean that the, Court should readily accept whatever the appellant alleges to explain away his default. It has to scrutinize it and would be fully justified in considering the merits of the evidence led to establish the cause for the appellant's default in applying within time for the impleading of the legal representatives of the deceased or for setting aside the abatement.” 16. Recently the Hon’ble Apex Court have been pleased to cull out the direction so that the principles governing the field for setting aside abatement are to be followed. After considering the judgment passed in Union of India v. Ram Charan (supra), P.K. Ramachandran v. State of Kerala; (1997) 7 SCC 556 , Katari Suryanarayan v. Koppisetti Subba Rao; AIR 2009 SC 2907 , B. Madhuri Goud v. B. Damodar Reddy; (2012) 12 SCC 693 and in the case of Esha Bhattacharjee (supra), Their Lordships observed the principles as hereunder:- “21. From the aforesaid authorities the principles that can broadly be culled out are:- 21.1. From the aforesaid authorities the principles that can broadly be culled out are:- 21.1. (i) There should be a liberal, pragmatic, justice oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2. (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation. 21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11. 21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:- 22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.” 17. With due regard to the aforesaid decision it has to be seen whether the explanation offered is concocted or the ground urged are fanciful. Moreover, the conduct of the parties must be kept in view. The application for condonation of delay should not be de alt with in a casual manner. 18. With due regard to the aforesaid decision it has to be seen whether the explanation offered is concocted or the ground urged are fanciful. Moreover, the conduct of the parties must be kept in view. The application for condonation of delay should not be de alt with in a casual manner. 18. It is for the appellant who must after diligent and bona fide enquiry should ascertain who is the legal representatives of the deceased to bring them on record within time and the heavy duty is cast on the appellant to prove the lack of knowledge and to insist for bringing to record that she has no any ill intention or negligence on her part to bring the L.Rs. into record in delay. 19. Now adverting to the facts of the case is that respondent no.7 is the daughter of one Uchhaba Patel and she admittedly died on 2.12.2011. The affidavit of the appellant does not disclose where she met the daughter of the deceased respondent no.7 so that she gathered the knowledge of the death of deceased respondent no.7 from her daughter. A statement made by the appellant that on the way to hospital at Bolangir she met the daughter of respondent no.7 is vague and fanciful. She may be an old woman, but it is not available from the affidavit why she has not persuaded the matter after filing of the appeal. Apart from this, the objection filed by respondents 1 to 6 to the effect that the appellant has attended the funeral ceremony of deceased respondent no.7 cannot be lost sight of. 20. From the petitions it further appears that the appellant on the way while proceeding to hospital, in course of discussion the daughter of deceased respondent no.7 informed about the date of death of respondent no.7. On the other hand, the appellant has not gone to ascertain the cause of death and date of death but just by the by came to know about her death. When the appellant is one of the relatives of respondent no.7, it is quite natural on her part to attend the funeral ceremony. On the other hand, the appellant has not gone to ascertain the cause of death and date of death but just by the by came to know about her death. When the appellant is one of the relatives of respondent no.7, it is quite natural on her part to attend the funeral ceremony. Thus, the plea taken by respondents 1 to 6 is more probable to rely on it, whereas the story of the appellant that she came to know about the date of death of respondent no.7 on 10.5.2015 is not proved as a sufficient cause to condone the delay. On the other hand, the appellant even if a woman has no sufficient cause to condone the delay. By relying on the decision of Esha Bhattacharjee V. Managing Committee of Raghunathpur Nafar Academy and others (supra), it must be observed that the appellant has not proved “sufficient cause” a major element to condone delay. Hence, the petition for condonation of delay, to set aside the abatement stands dismissed. Accordingly, the petition for setting aside abatement also has no any bearing on the matter for which the abatement of appeal against respondent no.7 stands. The petition for substitution of the legal heirs of respondent no.7 is to meet the same fate as the other petitions. 21. It is also the contention of learned counsel for the respondents-opp. Parties that in the event the suit/appeal is abated against the deceased respondent no.7, the entire appeal would abate because of joint right being claimed by the defendants over the suit property by excluding the right of the appellant. Relying on decisions reported in A.I.R. 1973 SC 204; Babu Sukhram Singh v. Ram Dular Singh and others, 1996 AIR SCW 243; State of Haryana v. Trilok Chand and others etc., JT 1996 (3) SC 565; Shri Bakshish Singh (dead) by Lrs. V. Arjan Singh &Ors. and A.I.R. 1991 SC 263; Zilla Singh and another v. Chandgi and others, it is submitted that once a right being common and individual abates, it abates against all. 22. Learned counsel for the appellant submitted that even if the appeal abates against respondent no.7, but the appeal does not abate as a whole, because the suit property is joint family coparcenery property. 22. Learned counsel for the appellant submitted that even if the appeal abates against respondent no.7, but the appeal does not abate as a whole, because the suit property is joint family coparcenery property. He further submitted that the common ancestor has got three sons, out of whom Hari Patel is the father of the present appellant, whereas Uchhaba Patel, the brother of Hari Patel died after 1956 being survived by other legal heirs who are already on record and respondent no.7, against whom the appeal abated. Moreover, he submitted that the suit is filed by the respondents and not by this appellant, to oust the appellant from the joint family property. Taking the nature of the suit being not exactly for declaration of joint right, title and interest and only filed for correction of the record of rights by denying the right, title and interest of appellant, the suit cannot be said indivisible in nature. So, the entire appeal does not abate. 23. Considering the submissions of respective counsels, there is no any doubt about the proposition of law as enunciated by Hon’ble Supreme Court in the case of A.I.R. 1973 SC 204; Babu Sukhram Singh v. Ram Dular Singh and others, 1996 AIR SCW 243; State of Haryana v. Trilok Chand and others etc., JT 1996 (3) SC 565; Shri Bakshish Singh (dead) by Lrs. V. Arjan Singh & Ors. and A.I.R. 1991 SC 263; Zilla Singh and another v. Chandgi and others to the effect that when the decree is single and indivisible by passing inconsistent decree against the contesting defendants, the appeal will abate as a whole. 24. Now adverting to the facts of this case the suit property is a joint family ancestral property and the common ancestor had three sons namely, Iswara, Uchhaba and Hari. The present appellant is the daughter of Hari, who purportedly died after 1956 claimed by the appellant. The legal heirs of Uchhaba have already on record to represent the branch of Uchhaba. Now respondent no.7 being one of the daughters died after institution of appeal, but the appeal abates against her as discussed above. No doubt the present appellant was defendant no.1 in the trial court and the suit is filed by the legal heirs of Iswara and Uchhaba for declaration that the present appellant-defendant no.1 has no share. Now respondent no.7 being one of the daughters died after institution of appeal, but the appeal abates against her as discussed above. No doubt the present appellant was defendant no.1 in the trial court and the suit is filed by the legal heirs of Iswara and Uchhaba for declaration that the present appellant-defendant no.1 has no share. The appellate court reversed the finding and hence the Second Appeal has been filed by defendant no.1-appellant. It cannot be construed that the decree being single and indivisible warrant the dismissal of the appeal as a whole. Thus, the nature of the present appeal is different than the facts and circumstances of the decision cited above. 25. Apart from this, respondent no.7 was the daughter of Uchhaba Patel and admittedly Uchhaba died before 2005. It is observed by the Hon’ble Apex Court in Civil Appeal No.7217 of 2013 (Prakash & Ors. V. Phulvati & Ors) (supra), that the rights under the amendment brought to section 6 of the Hindu Succession Act, 2005 are applicable to the living daughters of living coparceners as on 9.9.2005 irrespective of the fact that when such daughters were born. With due respect to the aforesaid decision, it is yet to consider whether respondent no.7 was to succeed her share in the property of Uchhaba in the event of suit being decreed as admittedly Uchhaba Patel died before 9.9.2005 as per the submissions of learned counsel for the appellant. 26. In view of the discussions made hereinabove, it is too early to observe that whole appeal abates in the event the appeal abates against the respondent no.7. Maintainability of the appeal against all others cannot be decided at present in this regard, but can be decided after admission of the appeal. The Misc. Cases are disposed of accordingly.