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2019 DIGILAW 313 (KAR)

Sharada Heggadthi v. Vimala P. Heggadthi

2019-02-01

R.DEVDAS

body2019
JUDGMENT : R. DEVDAS, J. 1. The question that begs consideration in this matter is, 'when relief of declaration is sought against two defendants, jointly, and one of the defendants dies, whether the appeal abates against the deceased-respondent alone or the entire appeal abates?' 2. The facts, in a nutshell are that one Dasappa Hegde, who had no issues, is alleged to have left behind a Will granting life estate in his properties to his wife Smt.Sharada Heggadthi (appellant) and on her demise, the properties would vest with her sisters viz., Smt.Vimala P.Heggadthi (respondent No.1) and Smt.Sugandhi G.Hegde (respondent No.2). The wife files a suit for declaration, to declare that she is the owner of the suit schedule properties. The suit is decreed and the plaintiff is declared as the absolute owner of the suit schedule properties. The appeal preferred by the sisters was allowed and the judgment and decree passed by the Trial Court is set aside. Consequently the suit is dismissed. The wife is in second appeal before this Court. During the pendency of the second appeal, the second respondent (one of the sisters) dies on 27.03.2018. Inspite of the said aspect being within the knowledge of the appellant, no application is filed for bringing the legal representatives of deceased respondent No.2 on record. After expiry of the prescribed period, I.A.No.5/2018 is filed by respondent No.1 seeking dismissal of the appeal as the appeal stands abated against both the respondents. 3. Learned Counsel for the respondents submits that the relief sought by the plaintiff is a declaration against both the defendants, jointly. The decree under challenge is inseparable and not distinct insofar as it relates to the respondents. The appeal stands abated in its entirety, therefore, the appeal is liable to be dismissed. 4. The learned Counsel for the respondent throws some light on the certain factual aspects, which may be germane to decide the issue. The appellant is aged above 100 years and in a vegetative state, suffering from dementia. This appeal is pursued through a power of attorney holder, who is one of the sons of the deceased respondent. The deceased respondent has two more children. With this factual background, it is submitted that the power of attorney holder is taking advantage of the condition of the appellant and indulging in acts that are detrimental to the interest of his siblings. The deceased respondent has two more children. With this factual background, it is submitted that the power of attorney holder is taking advantage of the condition of the appellant and indulging in acts that are detrimental to the interest of his siblings. The attorney for the appellant has no intention of bringing the heirs on record. There can be no other reason why an application was not filed to bring the legal representatives of the deceased respondent on record. 5. The learned Counsel has placed reliance on the following judgments: (i) Raghunath Keshava Kharkar Vs. Ganesh alias Madhukar Balakrishna Kharkarand, (1964) AIR SC 234; (ii) Sri Chand and Others Vs. M/s.Jagdish Pershad Kishan Chand and others, (1966) AIR SC 1427; (iii) Madhi Vs. Mahanbai and Others, (1972) AIR SC 1455; (iv) Madan Naik (dead by LRs.) and others Vs. Mst.Hansubala Devi and Others, (1983) AIR SC 676; (v) Gurnam Singh (Dead) through Legal Representatives and others Vs. Gurbachan Kaur (Dead) by Legal Representatives, (2017) 13 SCC 414 . 6. Per contra, the learned Counsel for the appellant submits that the appeal abates only against the deceased respondent. The learned Counsel contends that Order XXII Rule 4(3) of CPC, provides, "where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased-defendant." 7. In the light of the said provision, it is contended that there is no provision under law which would render the entire appeal abated, while one of the respondents dies and the appeal can only abate against the deceased respondent. 8. In the light of the factual aspects narrated above, the question formulated above requires to be answered. In the case of Raghunath Keshava Kharkar (supra), Their Lordships have held that the interests of various defendants who are in possession of various properties are independent and therefore the whole of the appeal cannot abate because the heirs of certain deceased defendant in possession of one property have not been brought on record. However with respect to the common property which was acquired under one sale deed, it was held that it is not shown that the interest of the two purchasers who are presumably members of an undivided family were separate and distinct and so there cannot be partial abatement only in regard to the share of the deceased purchaser. However with respect to the common property which was acquired under one sale deed, it was held that it is not shown that the interest of the two purchasers who are presumably members of an undivided family were separate and distinct and so there cannot be partial abatement only in regard to the share of the deceased purchaser. Consequently, the appeal so far as the common property (lot No.8) was held to have abated in its entirety and the appeal was dismissed. Similarly, in the case of Madhi (supra), though one of the respondents had died and the heirs were not brought on record, the entire appeal was held to have abated and consequently, the appeal was dismissed with costs. 9. In the case of Shri Chand and Others (supra), it was held that when the decree in favour of the respondents is joint and indivisible, the appeal against the respondents other than the deceased respondent cannot be proceeded with if the appeal against the deceased respondent has abated. The decision of the Apex Court in the case of State of Punjab Vs. Nathu Ram, (1962) AIR SC 89, was discussed and the test applicable in considering whether an appeal abates in its entirety when it has abated qua one of the respondents were also considered. It was observed that in Nathu Ram's case, one of the tests recommended was to find out whether the appeal between the appellants and the respondents other than the deceased respondent 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 and the tests to determine this have been enunciated thus: (a) Whether 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 could 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) Whether the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court? and (c) Whether the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed? 10. (b) Whether the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court? and (c) Whether the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed? 10. While applying the above tests, it is seen that if the appellant succeeds, she takes the properties as absolute owner, detrimental to the interest of the heirs of deceased respondent. The prayer made by the appellant-plaintiff cannot be split as between the two respondent-defendants. What applies to the first respondent shall also apply to the heirs of the second respondent. If the appellant succeeds, the decree cannot be executed only against the first respondent, since the entitlement as between the two respondents remain undetermined. What applies to the first respondent shall also apply to the heirs of the second respondent. Viewed from all angles, it is seen that without the presence of the second respondent or her legal heirs, the dispute cannot be resolved. 11. In the light of the above, this Court is of the opinion that the appeal has abated in its entirety. 12. I.A.No.5/2018 is allowed. The appeal is dismissed as abated, with costs.