BUDH RAM & ORS.versusBANSI & ORS.

                       [2010] 9 S.C.R. 674


A                      BUDH RAM & ORS.
                                 v.
                          BANSI & ORS.
                 (Civil Appeal No. 6291 of 2010)
                         AUGUST 5, 2010
B
        [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]

      Code of Civil Procedure, 1908 -Or. 22, r.4(3) and (4) -
  Death of one of the several respondents - During pendency
C of appeal - Abatement of appeal - Whether only qua the
  deceased respondent or in toto - Held: Where each parly has
  independent right, and the parlies have no conflicting interests
  inter se, appeal would abate only qua the deceased
  respondent - But where there is a possibility that the court may
D pass a decree contradictory to the decree in favour of the
  deceased party, the appeal will abate in toto - On facts,
  appeal was liable to abate in toto - Abatement.

      Respondent (plaintiffs) filed a suit against the
E appellants (defendant Nos. 1 to 5) and also against
  defendant No. 6, a proforma defendant, seeking
  declaration to the effect that the plaintiffs were co-owners
  and co-sharers in joint possession to the extent of 17
  Bighas, 8 Biswas, and the proforma defendant was the
  co-owner and co-sharer in joint possession to the extent
F of 5 Bighas, 15 Biswas in the suit land. Appellants
  (defendant Nos. 1 to 5) contested the suit while the
  proforma defendant did not contest. Trial court decreed
  the suit in favour of respondents (plaintiffs) and also the
  proforma defendant.
G
      )\ppellants-defendant Nos. 1 to 5 filed appeal,
  wherein the proforma defendant was impleaded as
  respondent. The appeal was contested by plaintiffs while
  the proforma defendant remained unrepresented. During
H                              674
       BUDH RAM & ORS. v. BANSI & ORS.            675


the pendency of the appeal, the profroma defendant died. A
Appellant-defendant filed application for substitution of
LRs of the proforma defendant but without any
application for condonation of delay in filing that
application. Later, they filed application for condonation
of delay. The appellate court dismissed both the B
applications and further held that since there was joint
possession and co-ownership of the plaintiffs and the
proforma defendant and since the trial court had passed
a joint decree, the appeal stood abated in toto. The order
of the appellate court was challenged before High Court c
in FAO and the same was dismissed.

    In the instant appeal, appellant-defendants
contended that since the decree was severable and
separable so far as the proforma defendant was
concerned, the appeal could not have been held to have D
abated in toto.

    Dismissing the appeal, the Court .

    HELD: 1.1 Whether non-substitution of LRs of the E
defendants/respondents would abate the appeal in toto
or only qua the deceased defendants/respond.ents,
depends upon the facts and circumstances of an
individual case. Where each one of the parties has an
independent and distinct right of his own, not inter- F
dependent upon one or the other, nor the parties have
conflicting interests inter se, the appeal may abate only
qua the deceased respondent. However, in case, there is
a possibility that the court may pass a decree
contradictory to the decree in favour of the deceased
party, the appeal would abate in toto for the simple G ·
reason that the appeal is a continuity of suit and the law
does not permit two contradictory decrees on the same
subject matter in the same suit. Thus, whether the
judgment/decree passed in the proceedings vis~a-vis
remaining parties would suffer the vice of being a · H
    676     SUPREME COURT REPORTS               [2010] 9 S.C.R.

A   contradictory or inconsistent decree is the relevant test.
    [Para 19) [685-B-E]

         1.2 In theory, every co-owner has an interest in every
    infinitesimal portion of the subject matter, each has a right
B irrespective of the quantity of its interest, to be in
    possession of every part and parcel of the property jointly
    with others. A co-owner of a property owns every part of
    the composite property along with others and he cannot
    be held to be a fractional owner of the property unless
C partition takes place. In the instant case, a declaratory
    decree was passed in favour of respondents/plaintiffs
    and the proforma defendant to the effect that they were
    co-owners, though, they had specific shares but were
    held entitled to be in "joint possession". The appellants/
    applicants had sought relief against the proforma
D defendant before the first appellate court as there was a
    decree in her favour, passed by the trial court. In such a
  · fact-situation, she had a right to contest the appeal. Once
    a decree had been passed in her favour, a right vested
    in her favour. On her death, the said vested right
E devolved upon her heirs. Thus, appeal against the
    proforma defendant stood abated. The High Court has
    rightly reached the conclusion that there was a
     possibility for the appellate court to reverse the judgment
    of the trial court and in such an eventuality, there could
F have been two contradictory decrees, one in favour of the
     proforma defendant and the other, in favour of the present
    appellants. [Para 20) [685-F-H; 686-A-E]

        Sardar Amarjit Singh Kalra and Ors. vs. Pramod Gupta
G   and Ors. AIR 2003 SC 2588 - followed.

        State of Punjab vs. Nathu Ram AIR 1963 SC 89; Sri
    Chand vs. Mis Jagdish Pershad Kishan Chand AIR 1966 SC
    1427; Ramagya Prasad Gupta and Ors. vs. Brahmadeo
    Prasad Gupta and Anr. AIR 1972 SC 1181; Shahazada Bi
H
        BUDH RAM & ORS. v. BANSI & ORS.                 677

and Ors. vs. Halimabi AIR 2004 SC 3942 - relied on.            A

     2. In the instant case, it has rightly been held by the
High Court that the provisions of Order 22 r. 4(4) CPC
were not attracted in the facts of the case. Order XXll Rule
4(4) CPC provides that in case, the deceased defendant         8
did not contest the suit and did not file~:ounter affidavit,
the substitution may not be warranted. 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      C
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. [Para 13]
[681-D-F]
                                                               D
    Zahiru/ Islam vs. Mohd. Usman and Ors. (2003) 1 SCC
476; T. Gnanave/ vs. T.S. Kanagaraj and Anr. AIR 2009 SC
2367 - relied on.
                    Case Law Reference:
                                                               E
    (2003) 1 sec 476         relied on            Para 13
    AIR 2009 SC 2367         reli d on            Para 13
    AIR 1963 SC 89           relied on            Para 14
                                                               F
    AIR 1966 SC 1427         relied on .         Para 15
    AIR 1972 SC 1181         relied on           Para 16
    AIR 2003 SC 2588          followed           Para 17
    AIR 2004 SC 3942         relied on           Para 18       G

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6291 of 2010.
    From the Judgment and order dated 30.11.2007 of the
High Court of Himachal Pradesh at Shimla in FAQ No. 345 of     H
    678      SUPREME COURT REPORTS                [2010] 9 S.C.R


A   2003.

         Rishi Malhotra, Prem Malhotra and Mrinmayee Sahu for
    the Appellants.

      Rajesh Srivastava and Raghvendra Pratap Singh for the
B Respondents.

          The Judgment of the Court was delivered by

          DR. B.S. CHAUHAN, J. 1. Leave granted.
c       2. This appeal has been preferred against the Judgment
  and Order dated 30.11.2007 in FAO No. 345 of 2003 of the
  High Court of Himachal Pradesh at Simla by which it has upheld
  the Judgment and order of the 1st Appellate Court i.e. the
  Additional District Judge, Solan Camp, Nalagarh in Case No.
D 19-NL/13 of 2000, whereby the Appellate Court refused to
  condone the delay in filing the application for substitution of
  Legal Representatives (hereinafter called the LRs.) of the
  deceased respondent No.4, Smt. (Parwatu) and held that the
  appeal filed by the present appellants stood abated in toto.
E
        3. The facts and circumstances giving rise to the present
  case are that the respondents, namely, Tulsi, Bansi and Hariya,
  all sons of Daulatia, instituted Civil Suit No. 207/1 of 1994
  against the present appellants and some of their predecessors-
F in-interest alongwith Smt. Parwatu, widow of Nanta, a proforma
  defendant, for seeking declaration to the effect that plaintiffs/
  respondents were co-owners and co-sharers in joint
  possession to the extent of 17 Bighas, 8 Biswas and Smt.
  Parwatu, proforma defendant No. 6 was co-owner and co-
G sharer in joint possession to the extent of 5 Bighas, 15 biswas
  comprised in Khewat/Khatuni Nos. 15-16, Kitats - 32, total
  measuring 49 Bighas, 1 Biswa situated in Village Malag, H.B.
  277, Pargana Nawan Nagar, Tehsil Nalagarh, District Solan
  (H.P.) with the consequential relief of permanent prohibitory
  injunction restraining the appellants/ defendant Nos. 1 to 5 from
H causing ouster and decree for joint possession.
         BUDH RAM & ORS. v. BANSI & ORS.                     679
              [DR. B.S. CHAUHAN, J.]
    4. The suit was contested by the present appellants.            A
However, defendant No. 6, Smt. Parwatu did not enter
appearance and did not contest the suit. The present appellants
had also claimed title over the suit land by way of adverse
possession. It is an admitted fact that both the parties are
descendants of the same ancestor Jalphu and certain mutation        B
proceedings had be~n under challenge in the suit itself. On the
basis of the pleadings, issues were framed and evidence was
adduced. After the conclusion of the trial of the suit, the Trial
Court decreed the suit in favour of the plaintiffs/respondents
and defendant No. 6, as prayed for vide Judgment and decree         c
dated 21.12.1999.

     5. Being aggrieved, the present appellants preferred Civil
Appeal No. 19-NL/13 of 2000, wherein the said defendant No.
6 Smt. Parwatu was impleaded as respondent No. 4. The
appeal was contested by the respondents/plaintiffs, however,        D
Smt Parwatu remained unrepresented before the 1st Appellate
Court also. During the pendency of the appeal, Smt. Parwatu,
respondent No. 4, died on 19.11.2000. The present appellants
preferred an application for substitution of the LRs of Smt.
Parwatu, respondent No. 4, before the 1st Appellate Court on        E
16.10.2001, under order XXll Rule 4 of the Code of Civil
Procedure, 1908 (hereinafter c?''ed. as, "CPC"). The said
application was duly supported by an affidavit, however, no
application for condonation of delay was filed along with the
said application. It was after an inordinate delay that an          F
application for condonation of delay was filed on 15.11.2002
without furnishing any explanation as to why the applica~ion
could not be filed along with the application for substitution of
LRs.
                                                                    G
     6. The said application was contested by the respondents/
plaintiffs taking a specific plea that the appellants/ applicants
were fully aware of the death of Smt. Parwatu as they were
residing in same villa' J. The present appellants/applicants had
taken part in the last tes of the deceased Smt. Parwatu. Thus,
                                                                    H
    680     SUPREME COURT REPORTS                [2010] 9 S.C.R.


A the respondents sought for rejection of the said application.·

       7. The Appellate Court considered various aspects and
  issues involved and reached the conclusion that there was no
  sufficient cause for the appellants/applicants to file an
  application with such an inordinate delay and, therefore, the
8
  application for condonation of delay was rejected. The
  Appellate Court further came to the conclusion that in view of
  the fact that there was a joint possession and co-ownership of
  the respondents/plaintiffs and Smt. Parwatu, and as the Trial
  Court had passed a joint decree in their favour, the appeal
C stood abated in toto.

      8. Being aggrieved and dissatisfied, the appellants
  preferred the FAO before the High Court which has been
  dismissed by the impugned Judgment and order dated
D 30.11.2007. Hence, this appeal.

       9. Sh. Rishi Malhotra, learned counsel appearing for the
  appellants, has urged a sole point before us that the facts of
  the case did not warrant abatement of the appeal as a whole.
E Share of Smt. Parwatu stood well defined and was restricted
  only to 5 Bighas, 15 Biswas only, thus, appeal could abate only
  qua her. The courts below erred in observing that the appeal
  stood abated as a whole as the decree passed by the Trial
  Court was severable and separable so far as Smt. Parwatu was
  concerned. Therefore, the appeal deserves to be allowed.
F
       10. On the contrary, Sh. Rajesh Srivastava, learned counsel
  appearing for the respondents, has vehemently opposed the
  appeal, contending that the High Court as well as the 1st
  Appellate Court based their judgments on the correct
G interpretation and application of law. No fault can be found with
  the said. Judgments, as there was no partition between the
  parties. The appeal is liable to be dismissed.

          11. We have considered the rival submissions made by
H
         BUDHRAM & ORS.· v. BANSI & ORS.                        681
             [DR. B.S. CHAUHAN, J.]
the learned counsel for the parties and perused the record.             A

     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 XXll
                                                                        B
Rule 1 CPC deals with the question of abatement on the death
of the plaintiff or of the defendant in a Civil Suit. Order XXll Rule
2 relates to procedure where one of the several plaintiffs or the
defendants die and the right to sue survives. Order XXll Rule 3
CPC deals with procedure in case of death of one of the
several plaintiffs or of the sole plaintiff. Order XXll Rule 4 CPC,     C
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.                                D

       13. Provisions of Order XXll 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             E
submission regarding application of Order XXll Rule 4(4) CPC
on the ground that the said provision requires the presentation
of an application before the Court, before it pronoun_ces 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         F
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 Zahirul Islam Vs.
Mohd. Usman & Ors. (2003) 1 SCC 476; and T. Gnanavel                    G
Vs. T.S. Kanagaraj & Anr. AIR 2009 SC 2367.

     Thus, it has rightly been held by the High Court that the
provisions of Order XXll Rule 4(4) CPC were not attracted in
the facts of this case.
                                                                        H
    682      SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A      14. In State of Punjab Vs. Nathu Ram AIR 1963 SC 89,
  while interpreting the provisions of Order XXll Rule 4(3) CPC
  read with Rule 11 thereof, this Court observed that an appeal
  abates as against the deceased respondents where within the
  time limited by law no application is made to bring his heirs or
B legal representatives on record. However, whether the appeal
  stands abated against the other respondents also, would
  depend upon the facts of a case.

          15. In Sri Chand Vs. Mis Jagdish Pershad Kishan Chand
   AIR 1966 SC 1427, this Court held that in case one of the
C  respondents dies and the application for substitution of his heirs
   or legal representatives is not filed within the limitation
   prescribed by law, the appeal may abate as a whole in certain
   circumstances and one of them could be that when the success
   of the appeal may lead to the courts coming to a decision which
D may be in conflict with the decision between the appellant and
   the deceased respondent and, therefore, it will lead to the court
   passing a decree which may be contradictory and inconsistent
   to the decree which had become final with respect to the same
 · subject matter between the appellant and the deceased
E respondent in the same case.

       16. In Ramagya Prasad 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
F 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
G         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
H         respondent; (b) when the appellant could not have brought
        . BUDH RAM & ORS. v. BANSI & ORS.                     683
               [DR. B.S. CHAUHAN, J.]
    the action for the necessary relief against those                 A
    respondents alone who are still before the court and (c)
    when the decree against the surviving respondents, if the
    appeal s_u_cceeds, be ineffective that is to say it could not
    be successfully executed. These three testes
    ................. are not cumulative tests. Even if one of them   B
    is satisfied, the court may dismiss the appeal". (Emphasis
    added)

=   17. In Sardar Amarjit Singh Katra & Ors. Vs. Pramod
Gupta & Ors. AIR 2003 SC 2588, a Constitution Bench of this
Court, while dealing with the similar issue, has after considering    C
large number of judgments of this Court, reached the following
conclusion:-

     "(a) In case of "Joint and indivisible decree", "Joint and
     inseverable or inseparable decree", the abatement of             D
     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            E
     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        F
     one or the other would depend upon the facts of each case
     anq 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          G
     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          H
    684       SUPREME COURT REPORTS                      [2010] 9 S.C.R.


A         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
B         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
C         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 beQome final. The appeal has to be declared
D abated in toto. It is the duty of the court to preserve and protect
  the rights of the parties.

        18. In Shahazada Bi & Ors. Vs. Halimabi AIR 2004 SC
    3942, this Court considered the same issue and held as under
E
          " .................. 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
F         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
          toto. Otherwise, the abatement takes place only in respect
G         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 sud with respect to the same subject
H         matter. The Court cannot be called upon to make two
        BUDH RAM & ORS. v. BANSI & ORS.                    685
             [DR. 8.S. CHAUHAN, J.]
    inconsistent decrees about the same property, and in           A
    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       s
    dispute between the parties." (Emphasis added)

      19. Therefore, the law on the issue stands crystallised to
the effect that as to whether non-substitution of LRs of the
defendants/respondents would abate the appeal in toto or only C
qua the deceased defendants/respondents, depend upon the
facts and circumstances of an individual case. Where each one
of the parties has an independent and distinct right of his own,
not inter-dependent upon one or the other, nor the parties have
conflicting interests inter se, the appeal may abate only qua the
deceased respondent. However, in case, there is a possibility D
that the Court may pass a decree contradictory to the decree
in favour of the deceased party, the appeal ·would abate in toto
for the simple reason that the appeal is a continuity of suit and
the law does not permit two contradictory decrees on the same
subject matter in the same suit. Thus, whether the judgment/ E
decree passed in the proceedings vis-a-vis remaini;ig parties ·
would suffer the vice of being a contradictory or inconsistent
decree is the relevant test.

     20. The instant case requires to be examined in view of F
the aforesaid settled legal propositions. Every co-owner has a
right to possession and enjoyment of each and every part of
the property equal to that of other co-owners. Therefore, in
theory, every co-owner has an interest in every infinitesimal
portion of the subject matter, each has a right irrespective of G
the quantity of its interest, to be in possession of every part and
parcel of the property jointly with others. A co-owner of a
property owns every part of the composite property along with
others and he cannot be held to be a fractional owner of the
property unless partition takes place. In the instant case a H
    686      SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A   declaratory decree was passed in favour of respondents/
    plaintiffs and Smt. Parwatu to the effect that they were co-
    owners, though, they had specific shares but were held entitled
    to be in "joint possession". The appellants/applicants had
    sought relief against Smt. Parwatu before the 1st Appellate
B   court as there was a decree in her favour, passed by the Trial
    Court where Smt. Parwatu had been impleaded by the
    appellants/applicants as proforma respondent. In such a fact-
    situation, she had a right to contest the appeal. Once a decree
    had been passed in her favour, a right had vested in her favour.
c   On her death on 19.11.2000, the said vested right devolved
    upon her heirs. Thus, appeal against Smt. Parwatu stood
    abated. In the instant case, the 1st Appellate Court rejected the
    application for condonation of delay as well as the substitution
    of LRs of Smt. Parwatu, respondent No. 4 therein. The only
    question remains as to whether the appeal is abated in toto or
0
    only in respect of the share of Smt. Parwatu. The High Court
    has rightly reached the conclusion that t_here was a possibility
    for the Appellate Court to reverse the Judgment of the Trial
     Court and in such an eventuality, there could have been two
    contradictory decrees, one in favour of Smt. Parwatu and the
E   other, in favour of the present appellants. The view taken by the
     High Court is in consonance with the law laid down by this Court
     consistently. The facts of the case do not warrant any further
    examination of the matter.

F       21. In view of the above, the appeal lacks merit and is
    accordingly dismissed. No order as to costs.

    K.K.T.                                      Appeal dismissed.