HEMAREDDI (D) THROUGH LRS.versusRAMACHANDRA YALLAPPA HOSMANI AND ORS.

262                       [2019]
               SUPREME COURT     7 S.C.R. 262
                              REPORTS                         [2019] 7 S.C.R.


A                     HEMAREDDI (D) THROUGH LRs.
                                         v.
            RAMACHANDRA YALLAPPA HOSMANI AND ORS.
                         (Civil Appeal No. 4103 of 2008)
B                                 MAY 07, 2019
              [ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
             Code of Civil Procedure, 1908 – Or.XXII, rr.2, 3 & 4 and
      Or.41 – Plaintiffs’ (appellant and his late brother) case that one ‘G’
      died leaving behind two sons (‘SR’ and ‘B’) and a daughter –
C
      Plaintiffs were the children of ‘SR’ – Plaintiffs filed suit against the
      second defendant, wife of ‘B’ for declaration that she had no right
      in the suit property and that the document of adoption dtd. 27.04.91
      adopting the first defendant was a false document – Trial Court
      dismissed the suit and upheld the adoption – Plaintiffs preferred
D     first appeal before the High Court – During the pendency of the
      appeal, the second plaintiff/second appellant therein died – His
      LRs were not brought on record – High Court held that the appeal
      abated not only qua the second appellant/plaintiff but as a whole –
      Held: Or.XXII, r.3 is applicable also to appeals filed u/Or.41 –
      Or.XXII, r.3 therefore is applicable when either a suit or an appeal
E
      is filed by more than one plaintiffs/appellants and on the death of
      one of the plaintiffs/appellants, the right to sue does not survive to
      the remaining plaintiff/plaintiffs or appellant/appellants alone, then
      the LRs of the deceased party can come on record – On that not
      being done, the proceeding will abate as far as the deceased party
F     is concerned – In the present case, there were legal representatives
      available for the appellant’s deceased brother– Admittedly, steps
      were not taken for their substitution– Appeal, therefore, abated qua
      the deceased brother and the decree of the trial Court became final
      qua him – Effect of the same is that the adoption is found legal –
      Result of the appellant being allowed to proceed further and succeed
G
      in the appeal would be the passing of a decree by the High Court to
      the effect that the adoption is invalid – It would be absolutely contrary
      to the decree which has also attained finality between his late brother
      and the defendants – Both the inconsistent decrees cannot stand
      together – There would be irreconcilable conflict – Defendants are
H
                                        262
    HEMAREDDI (D) THROUGH LRs. v. RAMACHANDRA                            263
                YALLAPPA HOSMANI

common and would be faced with two decrees regarding the same            A
subject matter – Appellant and his late brother sued as plaintiffs
for declaration that the first defendant was not the adopted son
and has no rights – Right set up by them was joint – They were
members of the joint Hindu family consisting of late ‘G’, their father
‘SR’ and ‘B’ – This is not a case where their claims were distinct –
                                                                         B
Mere fact that the appellant was permitted to prosecute the appeal
by an interlocutory order by the High Court would not be sufficient
to tide over the legal obstacle posed by the inconsistent decree
which emerges as a result of the failure to substitute legal
representative of the late brother and the abating of the appeal
filed by his late brother.                                               C
      Practice & Procedure – Procedural requirement vis-a-vis
principle of substantive law – Discussed.
      Dismissing the appeal, the Court
      HELD: 1.1 Procedure is the hand maiden of justice, the             D
technicalities of law should not be allowed to prevail over the
demands of justice and obstacles in the path of the Court
considering a case on merit should not ordinarily become
insuperable. On the other hand, if the so called procedural
requirement is drawn from a wholesome principle of substantive
law to advance the cause of justice, the same may not be                 E
overlooked. There can be no doubt that Order XXII, Rule 3,
CPC is applicable also to appeals filed under Order 41. Order
XXII, Rule 3 declares that where one of two or more plaintiffs
dies and the right to sue does not survive to the surviving plaintiff
or plaintiffs alone inter alia the Court on an application can           F
substitute the legal representatives of the deceased plaintiff and
proceed with the suit. Sub-rule (2) provides that if it is not so
done, the suit shall abate as far as the deceased plaintiff is
concerned. Order XXII, Rule (3) therefore is applicable when
either a suit or an appeal is filed by more than one plaintiffs or
appellants as the case may be. This is apart from it applying when       G
there is a sole plaintiff or sole appellant. In such a situation, on
the death of one of the plaintiffs or appellants and the right to sue
does not survive to the remaining plaintiff/plaintiffs or appellant/
appellants alone, then the LRs of the deceased party can come
on record. Should he not do so, ordinarily, the proceeding will          H
264            SUPREME COURT REPORTS                        [2019] 7 S.C.R.


A     abate as far as the deceased party is concerned. There were legal
      representatives available for the second appellant. This is not a
      case where the estate of the second appellant would pass to the
      appellant herein by survivorship or otherwise. Therefore, the
      first requirement is fulfilled for allowing Order XXII, Rule 3 to
      operate. Admittedly, steps were not taken for substitution in
B
      regard to the second appellant. The appeal, therefore, abated
      qua him as is declared by Order XXII, Rule 3(2). Though this is
      all that the Order XXII, Rule 2 declares, the principle has evolved
      that in certain kinds of litigation, the consequences of abatement
      qua a party is not limited to the deceased party alone but it affects
C     all the other parties and the litigation itself. In other words, a suit
      or an appeal as the case may be, would suffer an untimely demise
      by the proceeding abating as a whole.[Paras 7-9] [270-A-B; F-H;
      271-A-C]
            1.2 The appeal having abated in regard to the late brother,
D     the decree of the trial Court has become final qua the deceased
      brother of the appellant. The effect of the same is that the adoption
      is found legal. The result of the appellant being allowed to proceed
      further and succeed in the appeal would be the passing of a decree
      by the High Court. The said decree would be to the effect that
      the adoption is invalid. The suit which was jointly filed by the
E     appellant and his late brother would have to be decreed whereas
      the suit filed by the appellant and his late brother stands dismissed
      by the trial Court. Both the decrees cannot stand together. There
      would be irreconcilable conflict. The defendants are common.
      They would be faced with two decrees regarding the same subject
F     matter which are irrevocably conflicting. Order XXII, Rule 3
      provides for the converse of Order XXII, Rule 4. That is to say
      Order XXII, Rule 3 deals with a case where one or more plaintiffs
      or appellants or the sole plaintiff or sole appellant dies during
      the pendency of the suit or appeal. Order XXII, Rule 4 on the
      other hand deals with a case where one or more of the defendants
G     in the suits or sole defendant or the respondents or sole
      defendant in the appeal dies. In both these cases it must be
      noticed that it is a condition precedent for the provisions to apply
      that the right to sue does not survive to the remaining plaintiffs/
      appellants (Order XXII, Rule 3) or the remaining one or two
H     appellants and right to sue does not survive against the defendant
    HEMAREDDI (D) THROUGH LRs. v. RAMACHANDRA                          265
                YALLAPPA HOSMANI

or defendants in the suit or respondents in the appeal alone or        A
the sole defendant or surviving defendants dies and the right to
sue survives. Order XXII, Rule 2 deals with a situation where
there are more than one plaintiffs and defendants and any of them
dies and the right to sue survives to the surviving plaintiff or
plaintiffs alone or against the surviving defendant or defendants
                                                                       B
alone, the suit or the appeal shall be proceeded against at the
instance of the surviving plaintiff or plaintiffs/appellant or
appellants or against surviving defendant or defendants in the
suit/respondents in the appeal. [Paras 11, 13] [271-H-;
272-A-B; 276-C-F]
       1.3 The appellant and his late brother sued as plaintiffs for   C
a declaration that the first defendant was not the adopted son and
he has no rights. They also sought a prohibitory injunction. The
suit stood dismissed by trial court. Taking the converse position
and assuming that the suit was decreed by the trial court and
appeal was carried by the defendants, and pending the appeal by        D
the defendants, if the late brother of the appellant had died and if
the defendants had not impleaded the legal representatives of
late brother and the appeal abated as against him, would it then
not open to the appellant as respondent in the appeal to contend
that if the appeal was to be allowed to proceed in the absence of
the legal representatives of his late brother and succeed, there       E
would be an inconsistent decree. On the one hand, there will be
a decree by the trial Court declaring that the first defendant was
not the adopted son and had no interest in the property qua the
late brother of the appellant. On the other hand, the appellate
court could be invited to pass a decree which should be to the         F
effect that the first defendant was found to be the adopted son
and had right and interest over the property and a declaration to
that effect would have to be granted. Would not the appellate
court then have to necessarily hold though the decree in favour
of the deceased brother of the appellant has become final, and
under it, a declaration is granted that the defendant No.1 is not      G
the adopted son and he has no right to claim the property and
there is an injunction against him that he is the adopted son
opposed to the decree which has been passed by the trial court
which has attained finality. The appellate court would indeed have
to refuse to proceed with the appeal on the basis that allowing        H
266            SUPREME COURT REPORTS                      [2019] 7 S.C.R.


A     the appeal by the defendants would lead to an appellate decree
      which is inconsistent with the decree which has become final as
      against the deceased brother of the appellant. The situation cannot
      be any other different, when the converse of the aforesaid scenario
      is contemplated which happens to be the factual matrix obtaining
      in this case. The right which was set up by the appellant alongwith
B
      his late brother was joint. They were members of the joint Hindu
      family consisting of their late father and which consisted of late
      ‘G’, their father ‘SR’ and ‘B’. This is not a case where their claims
      were distinct claims. [Paras 18, 19] [284-D-H; 285-A-C]
            1.4 It may be true that if a separate suit had been filed by
C     the late brother and it had abated on his death, there will be no
      decree on merits and the suit would have abated. No doubt, it
      could be argued that even though the appellant and his late
      brother set up the case of joint right, it would only mean that they
      are co-owners of the property, and therefore, they had independent
D     rights as co-owners which could be canvassed in two different
      proceedings, and therefore, the decree of the trial court
      dismissing the suit be treated as two different decrees - one
      decree against the appellant and the other against his late brother.
      Even then, the decree, which the High court would be invited to
      pass, would be contradictory and inconsistent with the decree as
E     against late brother of the appellant which may not be permissible
      in law. The decree, which the appellant, if successful in the appeal,
      would obtain, would be absolutely contrary to the decree which
      has also attained finality between his late brother and the
      defendants. They are mutually irreconcilable, totally inconsistent.
F     Laying one side by side, the only impression would be that one is
      in the teeth of the other. In one, the suit is dismissed whereas in
      the other, the suit would have been decreed. The argument that
      in view of the order passed on 10/09/2001 by which despite the
      death of late brother of the appellant, permission to prosecute
      the appeal was granted by the court there would arise an estoppel
G     against the order being passed holding that the appeal has abated
      as a whole, cannot be accepted. The impact of death of the late
      brother of the appellant qua the proceeding is one arising out of
      the incompatibility of a decree which has become final with the
      decree which the appellant invites the appellate court to pass. In
H
    HEMAREDDI (D) THROUGH LRs. v. RAMACHANDRA                                267
                YALLAPPA HOSMANI

such circumstances, the mere fact that the appellant was permitted           A
to prosecute the appeal by an interlocutory order would not be
sufficient to tide over the legal obstacle posed by the inconsistent
decree which emerges as a result of the failure to substitute legal
representative of the late brother and the abating of the appeal
filed by his late brother. [Paras 20-22] [285-D-H; 286-A-C]
                                                                             B
      Sardar Amarjit Singh Kalra (Dead) by LRS. and Others
      v. Pramod Gupta (Smt) (D) by LRS. And Others ; 2003
      (3) SCC 272 : [2002] 5 Suppl. SCR 350 ; State of
      Punjab v. Nathu Ram AIR 1962 SC 89 : [1962] SCR
      636 ; Ram Sarup v. Munshi & Ors. [1963] 3 SCR 858 –
      relied on.                                                             C

      Harihar Prasad Singh and Others v. Balmiki Prasad
      Singh and Others 1975 (1) SCC 212 : [1975] 2 SCR
      932 – referred to.
                        Case Law Reference                                   D
[2002] 5 Suppl. SCR 350           relied on                Para 5
[1962] SCR 636                    relied on                Para 12
[1963] 3 SCR 858                  relied on                Para 13
[1975] 2 SCR 932                  referred to              Para 15           E
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4103
of 2008.
      From the Judgment and Order dated 02.09.2006 of the High
Court of Karnataka at Bangalore in R.F.A. No. 717 of 1998.
      V. N. Raghupathy, Chinmay Deshpande, Advs. for the Appellants.         F

     Ashok Kumar Sharma, Mrs. Bandana Singh, Kshitij Mudgal,
Deepak Jyoti Ghildiyal, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      K. M. JOSEPH, J.                                                       G
      1. This appeal by special leave is directed against the order of the
High Court in Regular First appeal No.717 of 1998. By the impugned
judgment, the High Court has taken the view that the appeal filed by the
appellant does not survive for consideration. This is on the following
reasoning:                                                                   H
268            SUPREME COURT REPORTS                            [2019] 7 S.C.R.


A           The appeal was filed by the appellant and his late brother against
            the judgment by the trial court dismissing the suit filed by them.
            The relief in the suit was to declare that defendant No.1 was not
            the adopted son and he has no title or interest over the suit property
            and for prohibitory injunction against the defendant not to disturb
            the joint possession of the suit agricultural land of the plaintiff and
B
            defendant No.2.
             2. It was the appellants case that one Govindareddi, the propositus
      died in 1946. He left behind him two sons and a daughter. The plaintiffs
      were the children of one of the sons. The second defendant was the
      wife of the other son Basavareddi. The suit properties were the properties
C     of the joint family of Govindareddi and his sons it was claimed. The
      plaintiffs have filed another suit as O.S. No.66 of 1990 against the second
      defendant for declaration that she has no right in the property. Injunction
      was also sought. Injunction was ordered against her. On the ill advice
      of some advisors it was their case that she has created a false document
D     of adoption dated 27.04.1991 adopting the first defendant. Defendants
      3 and 4 are alleged to have given to the first defendant on adoption to the
      second defendant. The trial Court dismissed the suit and therefore upheld
      the adoption. Against the said judgment as noted, both the plaintiffs
      preferred first appeal before the High Court. It is while so that during
      the pendency of the appeal the second plaintiff/second appellant died.
E     The LRs of the second appellant were not brought on record. The appeal,
      therefore, abated qua the second appellant. The High Court took the
      view that having regard to the decree which has been passed the appeal
      would abate not only qua the second appellant/ plaintiff but as a whole
      and accordingly it was so ordered.
F           3. We have heard learned counsel for the parties.
              4. Learned counsel for the appellant drew our attention to the
      following orders passed by the High Court in the appeal and referred to
      in the impugned judgment:

G              “8. When the matter was listed on 20th July, 2001, this court
            observed thus:
                It is stated by the learned counsel for the appellant that the
                second appellant (plaintiff No.2) is died and in view of the
                death of second appellant, the matter is adjourned by two weeks
                to enable the appellants’ counsel to take steps.”
H
    HEMAREDDI (D) THROUGH LRs. v. RAMACHANDRA                                  269
        YALLAPPA HOSMANI [K. M. JOSEPH, J.]

         9. The appeal was relisted on 10.09.2001. This court has              A
      observed thus:
          Hence the appeal filed against the appellant No.2 abates.
          Memo filed by appellant No.1 submitting himself and appellant
          No.2 are brothers and co-owners of suit schedule property.
          Since the LRs of appellant No.2 have not evinced interest to         B
          prosecute the appeal, appellant No.1 prays permission to
          prosecute the appeal. Accordingly, permission is granted.”
      5. Learned counsel for the appellant would contend that the
appellant herein could have filed a separate suit seeking the same relief.
       Learned counsel for the appellant relied upon the order passed on       C
10/09/2001 and contended that though the LRs of the appellant No.2 did
not evince interest to prosecute the appeal, the petitioner who is appellant
No.1 prayed for permission to prosecute the appeal. The permission
was granted by the High Court. The respondents did not oppose the
prosecution of the appeal filed by the appellant despite knowing that the      D
second appellant did not choose to get themselves impleaded and the
appeal would have abated qua him also. According to the appellant this
would stand in the way of the court and the respondents from proceeding
on the basis that the appeal has abated as a whole. In other words, he
contended that estoppel will operate against the appeal being dismissed
on the death of the second appellant, and on the basis that the appeal has     E
abated as a whole. He also drew our attention to the judgment of this
Court in Sardar Amarjit Singh Kalra (Dead) BY LRS. and Others v.
Pramod Gupta (Smt) (D) BY LRS. And Others; 2003 (3) SCC 272.
       6. Per contra, learned counsel appearing for the respondents
supported the order of the High Court. He contended that the order             F
passed by the High Court will not operate as estoppel estopping them
from contending that the appeal has abated as a whole. There would be
conflict of decrees, as on the one hand, the trial Court has passed a
decree upholding the adoption, and even if the High Court were to allow
the appeal filed by the appellant and hold that the adoption was invalid,      G
there will be two conflicting decrees, one by the trial Court which as far
as the deceased second appellant is concerned, has become final and
another by the High Court taking a contrary view. This is not
contemplated in law and therefore, the reasoning of the High Court is
only to be supported.
                                                                               H
270             SUPREME COURT REPORTS                             [2019] 7 S.C.R.


A            7. Death of a party during the currency of a litigation indeed has
      given rise to vexed questions. Procedure is the hand maiden of justice,
      the technicalities of law should not be allowed to prevail over the demands
      of justice and obstacles in the path of the Court considering a case on
      merit should not ordinarily become insuperable. On the other hand, if
      the so called procedural requirement is drawn from a wholesome principle
B
      of substantive law to advance the cause of justice, the same may not be
      overlooked.
                      Order XXII Rule 3 C.P.C.
                 “3. Procedure in case of death of one of several plaintiffs or
C            of sole plaintiff
                (1) Where one of two or more plaintiffs dies and the right to
             sue does not survive to the surviving plaintiff or plaintiffs alone, or
             a sole plaintiff or sole surviving plaintiff dies and the right to the
             sue survives, the Court, on an application made in that behalf,
D            shall cause the legal representative of the deceased plaintiff to be
             made a party and shall proceed with the suit.
               (2) Where within the time limited by law no application is made
             under sub-rule (1), the suit shall abate so far as the deceased
             plaintiff is concerned, and, on the application of the defendant, the
E            Court may award to him the costs which he may have incurred in
             defending the suit, to be recovered from the estate of the deceased
             plaintiff.”
             8. There can be no doubt that Order XXII Rule 3 is applicable
      also to appeals filed under Order 41. Order XXII Rule 3 declares that
F     where one of two or more plaintiffs dies and the right to sue does not
      survive to the surviving plaintiff or plaintiffs alone inter alia the Court
      on an application can substitute the legal representatives of the deceased
      plaintiff and proceed with the suit. Sub-rule (2) provides that if it is not
      so done, the suit shall abate as far as the deceased plaintiff is concerned.
      Order XXII Rule (3) therefore is applicable when either a suit or an
G     appeal is filed by more than one plaintiffs or appellants as the case may
      be. This is no doubt apart from it applying when there is a sole plaintiff
      or sole appellant. In such a situation, on the death of one of the plaintiffs
      or appellants and the right to sue does not survive to the remaining plaintiff/
      plaintiffs or appellant/appellants alone, then the LRs of the deceased
      party can come on record. Should he not do so, ordinarily, the proceeding
H
      will abate as far as the deceased party is concerned.
    HEMAREDDI (D) THROUGH LRs. v. RAMACHANDRA                                     271
        YALLAPPA HOSMANI [K. M. JOSEPH, J.]

        9. Let us first of all examine whether the right to sue survived to       A
the appellant alone or the right to sue was available to the LRs of the
deceased appellant as well. It is quite clear that there were legal
representatives available for the second appellant. This is not a case
where the estate of the second appellant would pass to the appellant
herein by survivorship or otherwise. Therefore, the first requirement is
                                                                                  B
fulfilled for allowing Order XXII Rule 3 to operate. Admittedly, steps
were not taken for substitution in regard to the second appellant. The
appeal, therefore, abated qua him as is declared by Order XXII Rule
3(2). Though this is all that the Order XXII Rule 2 declares, the principle
has evolved that in certain kinds of litigation, the consequences of
abatement qua a party is not limited to the deceased party alone but it           C
affects all the other parties and the litigation itself. In other words, a suit
or an appeal as the case may be, would suffer an untimely demise by the
proceeding abating as a whole.
        10. The question which we are called upon to answer is whether
this is such a case? The allegation in the plaint as we have noticed is           D
that the suit properties are joint properties and the second defendant had
no exclusive right to the property. She had created a false document
described as an adoption deed by which she has purported to adopt the
first defendant. The first defendant cannot claim any right to the suit
property as an adopted son. On the alleged date of adoption, the husband
of the second defendant was alive. He had died on 16.04.1987, in                  E
jointness with the plaintiffs. The plaintiffs were the joint owners of the
suit land and also other property. When Basavareddi, the husband of the
second defendant was alive, she has no right to take the first defendant
on adoption. Defendant No.1 cannot claim any title interest or right over
the suit property.                                                                F
       11. In this case having noted pleadings and the relief sought we
can proceed on the basis that it was the appellant’s case that the plaintiff’s
property was the joint family property belonging to the appellant and his
deceased brother. The trial Court dismissed the suit. The result is that
the adoption of the 1st defendant by the 2nd defendant which was                  G
challenged by the appellant and his late brother was upheld. The said
judgment was called in question in a Single Appeal by the appellant and
his late brother. It is while the appeal was so pending that the late
brother passed away. The appeal having abated in regard to the late
brother, the decree of the trial Court has become final qua the deceased
brother of the appellant. The effect of the same is that the adoption is          H
272            SUPREME COURT REPORTS                           [2019] 7 S.C.R.


A     found legal. The result of the appellant being allowed to proceed further
      and succeed in the appeal would be the passing of a decree by the High
      Court. The said decree would be to the effect that the adoption is invalid.
      The suit which was jointly filed by the appellant and his late brother
      would have to be decreed whereas the suit filed by the appellant and his
      late brother stands dismissed by the trial Court. Both the decrees cannot
B
      stand together. There would be irreconcilable conflict. The defendants
      are common. They would be faced with two decrees regarding the
      same subject matter which are irrevocably conflicting.
             12. In State of Punjab vs. Nathu Ram AIR 1962 SC 89, the
      Punjab Government had acquired certain pieces of land belonging to
C     two brothers. Upon their refusal to accept the compensation offered,
      their joint claim was referred to arbitration on the basis that the land
      belong to them jointly. An award was passed in their favour. The
      Government appealed before the High Court. During pendency of the
      appeal, one of the brothers died. No application was filed to bring on
D     record his LRs within the time limit. The High Court dismissed the
      appeal and reasoned that it abated against the person who has died and
      the appeal abated as a whole. It is useful to advert to what this Court
      has laid down in State of Punjab vs. Nathu Ram (Supra) at pages 638-
      640:
E               ………… “The Code does not provide for the abatement of
            the appeal against the other respondents. Courts have held that in
            certain circumstances, the appeals against the co-respondents
            would also abate as a result of the abatement of the appeal against
            the deceased respondent. They have not been always agreed with
            respect to the result of the particular circumstances of a case and
F           there has been, consequently, divergence of opinion in the
            application of the principle. It will serve no useful purpose to
            consider the cases. Suffice it to say that when O. XXII, r. 4 does
            not provide for the abatement of the appeals against the co-
            respondents of the deceased respondent, there can be no question
G           of abatement of the appeals against them. To say that the appeals
            against them abated in certain circumstances, is not a correct
            statement. Of course, the appeals against them cannot proceed in
            certain circumstances and have therefore to be dismissed. Such
            a result depends on the nature of the relief sought in the appeal.

H
HEMAREDDI (D) THROUGH LRs. v. RAMACHANDRA                                 273
    YALLAPPA HOSMANI [K. M. JOSEPH, J.]

     The same conclusion is to be drawn from the provisions of            A
 O.I, r.9, of the Code which provides that no suit shall be defeated
 by reason of the misjoinder or non-joiner of parties and the Court
 may, in every suit, deal with the matter in controversy so far as
 regards the rights and interests of the parties actually before it. It
 follows, therefore, that if the Court can deal with the matter in
                                                                          B
 controversy so far as regards the rights and interests of the
 appellant and the respondents other than the deceased respondent,
 it has to proceed with the appeal and decide it. It is only when it is
 not possible for the Court to deal with such matters, that it will
 have to refuse to proceed further with the appeal and therefore
 dismiss it.                                                              C
      The question whether a Court can deal with such matters or
 not, will depend on the facts of each case and therefore no
 exhaustive statement can be made about the circumstances when
 this is possible or is not possible. It may, however, be stated that
 ordinarily the considerations which weigh with the Court in deciding     D
 upon this question are whether the appeal between the appellants
 and the respondents other than the deceased 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. The test to
 determine this has been described in diverse forms. Courts will
 not proceed with an appeal (a) when the success of the appeal            E
 may lead to the Court’s coming to a decision which be in conflict
 with the decision between the appellant and the deceased
 respondent and therefore which 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             F
 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.                                                                G

    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

                                                                          H
274            SUPREME COURT REPORTS                           [2019] 7 S.C.R.


A           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.
B
                The difficulty arises always when there is a joint decree. Here
            again, the consensus of opinion is 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.
C           Different views exist in the case of joint decrees in favour of
            respondents whose rights in the subject matter of the decree are
            specified. One view is that in such cases, the abatement of the
            appeal against the deceased respondent will have the result of
            making the decree affecting his specific interest to be final and
D           that the decree against the other respondents can be suitably dealt
            with by the appellate Court. We do not consider this view correct.
            The specification of shares or of interest 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 or
            to resist the attempt of the other party to interfere with the joint
E           right decreed in his favour. The abatement of an appeal means
            not only 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. The reason is plain. It is that in the absence of the
F           legal representatives of the deceased respondents, the appellate
            Court cannot determine anything between the appellant and the
            legal representatives which may affect the rights of the legal
            representatives under the decree. It is immaterial that the
            modification which the Court will do is one to which exception
            can or cannot be taken.”
G
                                                           (Emphasis supplied)
            The attempt of the State to contend that the brothers had equal
      share of land in the village records and therefore, the appeal should be
      proceeded with did not appeal to the court. This Court further proceeded
H     to observe that the brother has made a joint claim and had a joint decree
    HEMAREDDI (D) THROUGH LRs. v. RAMACHANDRA                                 275
        YALLAPPA HOSMANI [K. M. JOSEPH, J.]

and the frame of the appeal was with reference to the decree challenged.      A
The appeal failed. It will be immediately noticed that this was a case
which involved Order XXII Rule 4. Order XXII Rule 4 reads as follows:
      “4. Procedure in case of death of one of several defendants or of
      sole defendant -
         (1) Where one of two or more defendants dies and the right to        B
      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.           C
         (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        D
      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       E
      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.”
       13. The next decision we would notice is the decision in Ram           F
Sarup vs. Munshi & Ors. 1963 (3) SCR 858. The case involved the
death of one of the respondents during the pendency of the appeal filed
by the State. The question involved was whether the right of preemption
would continue to be available despite the repeal of the Punjab Alienation
of Land Act, 1900. In one of the civil appeals, the pre-emptors who
                                                                              G
claimed the right of pre-emption who were 4 in number, obtained a decree
against the vendees. The appellant vendees had purchased the property
for Rs. 22,750/-. The appellant Nos.1 and 2 paid one half amounting to
Rs.11,375/-. The other 3 appellants paid the other half. The sale deed
showed that it was not a case of sale of separate items in favour of
deceased-appellant but of one entire set of properties enjoyed by two         H
276             SUPREME COURT REPORTS                            [2019] 7 S.C.R.


A     set of vendees in equal share. Pending the appeal by the appellants
      vendees, the first appellant died and it abated as against him. In this set
      of facts this Court proceeded to hold that the decree being a joint decree
      and a part of the decree has become final by reason of the abatement,
      the entire appeal would abate. The reasoning was there could be no
      partial pre-emption because pre-emption was the substitution of pre-
B
      emptors in place of the vendees and it was found that if the decree in
      favour of the pre-emptors in respect of the share of the deceased vendee
      appellant had become final there would be two conflicting decrees if the
      appeal were to be allowed and the decree of pre-emption insofar as
      appellants 2 to 5 were concerned was interfered with. It must at once
C     be noticed that Order XXII Rule 3 provides for the converse of Order
      XXII Rule 4. That is to say Order XXII Rule 3 deals with a case where
      one or more plaintiffs or appellants or the sole plaintiff or sole appellant
      dies during the pendency of the suit or appeal. Order XXII Rule 4 on
      the other hand deals with a case where one or more of the defendants in
      the suits or sole defendant or the respondents or sole defendant in the
D
      appeal dies. In both these cases it must be noticed that it is a condition
      precedent for the provisions to apply that the right to sue does not survive
      to the remaining plaintiffs/ appellants (Order XXII Rule 3) or the
      remaining one or two appellants and right to sue does not survive against
      the defendant or defendants in the suit or respondents in the appeal
E     alone or the sole defendant or surviving defendants dies and the right to
      sue survives. It must be noted that Order XXII Rule 2 deals with a
      situation where there are more than one plaintiffs and defendants and
      any of them dies and the right to sue survives to the surviving plaintiff or
      plaintiffs alone or against the surviving defendant or defendants alone,
      the suit or the appeal shall be proceeded against at the instance of the
F
      surviving plaintiff or plaintiffs/appellant or appellants or against surviving
      defendant or defendants in the suit/respondents in the appeal.
             14. In Ram Sarup vs. Munshi & Ors. (supra), nine persons
      instituted a suit for ejectment and recovery of rent against two
      defendants. The suit was decreed. In an appeal by the defendants, the
G     decree of the Trial Court was set aside against the second defendant.
      During the pendency of the second appeal filed by all the plaintiffs, one
      of them died. His LRs were not brought on record and the appeal
      abated as far as such appellant was concerned. The objection raised by
      the respondents that the appeal could not be proceeded with as the appeal
H     abated as a whole, was accepted. An attempt was made under Order
    HEMAREDDI (D) THROUGH LRs. v. RAMACHANDRA                                     277
        YALLAPPA HOSMANI [K. M. JOSEPH, J.]

XXII Rule 2 by contending that the nine appellants constituted a Joint            A
Hindu Family and on the death of one of the appellants, the right to sue
survived in favour of the remaining appellants, as at that time the Hindu
Succession Act had not been passed, was repelled on facts by holding
that the appellants did not constitute a Joint Hindu Family. Further attempt
to draw support from Order XLI Rule 4, namely, that the appeal
                                                                                  B
proceeded on a ground common to all the plaintiffs and defendants, and
any one of the plaintiffs /defendants may appeal from the whole decree
and the decree could be reversed or varied in favour of the plaintiffs or
defendants was not accepted as it was found that Order XLI Rule 4
only enabled one of the plaintiffs/defendants to file an appeal and it
would not apply in a case where all the plaintiffs had filed the second           C
appeal. The Court took the view that the appeal abated as a whole as all
the appellants had a common right in getting an ejectment against the
second defendant and such a decree was on a ground common to all of
them. It was further found that the defendants could not be ejected
from the premises when he had a right to remain in occupation on the
                                                                                  D
basis of a decree holding that a deceased-appellant, one of the persons
having joint interest in letting out property could not have ejected him. It
was further held that it was not possible for the defendant to continue as
tenant of one of the landlords and not as a tenant of the others when all
of them had a joint right to eject or to have him as their tenant.
       15. In the judgment of this Court in Harihar Prasad Singh and              E
Others vs. Balmiki Prasad Singh and Others 1975 (1) SCC 212, the
issue involved was the acceptability of a custom set up by the plaintiff
was that they were Bhumidar Brahmins by caste and under which custom
more distant heirs than the shastric heirs also joined the latter in succession
of a separate male member dying without any issue and leaving any                 F
widow. A preliminary objection was also raised that the appeal itself
abated under the following facts:
       Plaintiff No.29 died in 1953. His widow and son were substituted.
       With the coming into force of the Hindu Succession Act, the share
       of the widow in her husband’s estate became a full estate. The             G
       widow, in turn, died in 1967. She left behind her daughter and her
       son. The son had already been impleaded upon the death of his
       father. The decree it was pointed out was one and indivisible and
       the whole appeal had abated, upon the widow dying not having
       impleaded her daughter, the whole appeal abated. This argument
       was repelled after referring to all the authorities. This Court in         H
278            SUPREME COURT REPORTS                           [2019] 7 S.C.R.


A           Harihar Prasad Singh and Others vs. Balmiki Prasad Singh
            and Others (Supra) took the view inter alia as follows:
                   “32. The important point to note about this litigation is that
               each of the reversioners is entitled to his own specific share.
               He could have sued for his own share and got a decree for his
B              share. That is why five title suits Nos.53 and 61 of 1934 and
               20, 29 and 41 of 1935 were filed in respect of the same estate.
               In the present case also the suit in the first instance was filed
               by the first and second plaintiffs for their one-twelfth share.
               Thereafter many of the other reversioners who were originally
               added as defendants were transposed as plaintiffs. Though
C              the decree of the trial Court was one, three appeals Nos.326,
               332 and 333 of 1948 were filed by three sets of parties.
               Therefore, if one of the Plaintiffs dies and his legal
               representatives are not brought on record the suit or the appeal
               might abate as far as he is concerned but not as regards the
D              other plaintiffs or the appellants.”
                                                           (Emphasis Supplied)
             16. The last judgment we would like to refer to is the judgment
      relied on by the appellants and that is the judgment of the Constitution
      Bench in Sardar Amarjit Singh Kalra (Dead) by LRS. & Ors. vs.
E     Pramod Gupta (Smt.)(Dead) by LRS. & Ors. 2003 (3) SCC 272. In
      the said judgment the matter arose under the Land Acquisition Act. The
      facts set out indicate inter alia that a joint appeal was filed by a number
      of proprietors. However, the court found that they had distinct and
      independent claims. The three different categories of claimants before
      the Land Acquisition Collector were noted as follows:
F
                “3. An extent of about 5500 bighas of land described as “gair
            mumkin Pahar” (uncultivable mountainous area) situated at
            Masudpur Village within the Union Territory of Delhi was acquired
            by the Government for planned development of Delhi. Notifications
            were issued: (1) on 24.10.1961 for acquisition of 720 bighas and 4
G           biswas out of 4307 bighas and 18 biswas under Section 4 of the
            Land Acquisition Act, 1894 (hereinafter referred to as “the Act”).
            It may be stated at this stage itself that an extent of 390 bighas of
            land notified on 24.10.1961 and acquired by passing the award in
            Award No.1944 does not form the subject-matter of these
H           proceedings. Declarations under Section 6 of the Act were issued
    HEMAREDDI (D) THROUGH LRs. v. RAMACHANDRA                                 279
        YALLAPPA HOSMANI [K. M. JOSEPH, J.]

      on 6.8.1966. In the course of the award enquiry claims were filed       A
      before the Land Acquisition Collector by three categories of
      claimants as hereunder:
          i) Claims by the Union of India and the Gaon Sabha that the
             lands acquired stood vested with the Gaon Sabha they being
             “wasteland” under Section 7 of the Delhi Land Reforms            B
             Act, 1954. This claim proceeded on the basis that not only
             was it `waste land’ but also the Bhumidari Certificate issued
             in favour of Smt. Gulab Sundari was invalid and non est in
             law.
          ii) The other class of claims were from the Proprietors/co          C
              owners on the basis that the acquired land was not “land”
              as defined under Section 3(13) of the Delhi Land Reforms
              Act, since they were being used for non-agricultural
              purposes and therefore, they neither could be said to be
              “wasteland” nor could be held to have vested in the Gaon
              Sabha, for either of them to claim any title to the lands in    D
              question and, therefore, they continued to be proprietors of
              the soil and as such entitled to the compensation for
              themselves.
          iii) Yet another claim was from Smt. Gulab Sundari and her
               transferees of portions of the rights over the land on the     E
               ground that she was the Bhumidhar of the land measuring
               about 4307 bighas and 18 biswas and those lands were
               part of her bhumidhari-holding out of which she also claimed
               to have transferred rights in an extent of 3500 bighas of
               undivided holding in favour of the other private respondents   F
               claimants.”
       There were three sets of appeals. This Court proceeded to notice
the entire case law. Paragraph 25 and 26 of the said judgment is extracted
hereinbelow:
      “25.       ……….The claim of each one was in respect of his              G
      distinct, definite and separate share and their respective rights
      are not interdependant but independent. Among themselves there
      is no conflicting or overlapping interest and the grant of relief to
      one has no adverse impact on the other(s). The mere fact that
      there was no division by metes and bounds on state of ground is
                                                                              H
280      SUPREME COURT REPORTS                            [2019] 7 S.C.R.


A     no reason to treat it to be a joint right-indivisible in nature to be
      asserted or vindicated only by all of them joining together in the
      same proceedings, in one capacity or the other. As a matter of
      fact, separate claims seem to have been filed by them before the
      Reference Court in respect of their own respective share. Even
      if they have engaged a common counsel or even if they have filed
B
      one claim in respect of their specified separate share, it could not
      have the effect of altering the nature of their claim or the character
      of their right so as to make it an indivisible joint right. Though the
      Reference Court has decided all such claims together, having
      regard to the similarity or identical nature of issues arising for
C     consideration of the claims, in substance and reality the proceedings
      must be considered in law to be of multifarious claims disposed of
      in a consolidated manner resulting in as many number of awards
      of the Reference Court as there were claimants before it. There
      was no community of interest between them and that each one of
      them in vindicating their individual rights was not obliged to implead
D
      the other claimants of their shares in one common action/
      proceeding and the orders/judgment though passed in a consolidated
      manner, in law, amounts to as many orders or judgments as there
      were claimants and, by no reason, can it be branded to be a joint
      and inseverable one. Similarity of the claims cannot be a
E     justification in law to treat them as a single and indivisible claim
      for any or all purposes and such a thing cannot be legitimately
      done without sacrificing the substance to the form. The claim on
      behalf of the respondents that the compensation awarded is of a
      lump sum, though shares are divided, is belied by the scheme
      underlying Sections 11, 18, 30 and 31 of the Act, and cannot be
F
      countenanced as of any merit. Against the Award of the Reference
      Court in this case, it was possible and permissible in law for every
      one of the appellants to file an appeal of his own separately in
      respect of his share without any need or obligation to implead
      every other of the claimants like him, as party-respondent or as
G     co-appellant, because there is no conflicting interest or claims
      amongst them inter se. As such, the alleged and apprehended
      fear about possible inconsistent or conflicting decrees resulting
      therefrom if the appeals are proceeded with and disposed of on
      merits has no basis in law nor is well founded on the facts and
H
HEMAREDDI (D) THROUGH LRs. v. RAMACHANDRA                                281
    YALLAPPA HOSMANI [K. M. JOSEPH, J.]

 circumstances of these cases. Even if the appellants succeed on         A
 merits, dehors the fate of the deceased appellants the decree
 passed cannot either be said to become ineffective or rendered
 incapable of successful execution. To surmise even then a
 contradictory decree coming into existence, is neither logical nor
 reasonable nor acceptable by courts of Law. Otherwise, it would
                                                                         B
 amount to applying the principle of vicarious liability to penalize
 someone for no fault of his and denial of one’s own right for the
 mere default or refusal of the other(s) to join or contest likewise
 before the court. The fact that at a given point of time all of them
 joined in one proceedings because one court in the hierarchy has
 chosen to club or combine all their individual and separate claims      C
 for the purpose of consideration on account of the similarity of
 the nature of their claims or that for the sake of convenience they
 joined together for asserting their respective, distinct and
 independent claims or rights is no ground to destroy their individual
 right to seek remedies in respect of their respective claims. In
                                                                         D
 cases of this nature, there is every possibility of one or the other
 among them subsequently reconciling themselves to their fate and
 settle with their opponents or become averse to pursue the legal
 battle forever so many reasons, as in the case on hand due to
 disinterestedness, indifference or lethargy and, therefore, the
 attitude, approach and resolve of one or the other should not           E
 become a disabling or disqualifying factor for others to vindicate
 their own individual rights without getting eclipsed or marred by
 the action or inaction of the others……….”
 “26. Laws of procedure are meant to regulate effectively, assist
 and aid the object of doing substantial and real justice and not to     F
 foreclose even an adjudication on merits of substantial rights of
 citizen under personal, property and other laws. Procedure has
 always been viewed as the handmaid of justice and not meant to
 hamper the cause of justice or sanctify miscarriage of justice. A
 careful reading of the provisions contained in Order 22 CPC as
 well as the subsequent amendments thereto would lend credit             G
 and support to the view that they were devised to ensure their
 continuation and culmination in an effective adjudication and not
 to retard the further progress of the proceedings and thereby non-
 suit the others similarly placed as long as their distinct and
                                                                         H
282            SUPREME COURT REPORTS                           [2019] 7 S.C.R.


A           independent rights to property or any claim remain intact and not
            lost forever due to the death of one or the other in the proceedings.
            The provisions contained in Order 22 are not to be construed as a
            rigid matter of principle but must ever be viewed as a flexible tool
            of convenience in the administration of justice. The fact that the
            Khata was said to be joint is of no relevance, as long as each one
B
            of them had their own independent, distinct and separate shares
            in the property as found separately indicated in jamabandi itself of
            the shares of each of them distinctly……………”
             Thus, the Court highlighted the need to apply laws of procedure in
      a manner so that substantial justice is facilitated. The Court further held
C     as follows:
                “30. The question, therefore, as to when a proceeding before
            the Court becomes or is rendered impossible or possible to be
            proceeded with, after it had partially abated on account of the
            death of one or the other party on either side has been always
D           considered to depend upon the fact as to whether the decree
            obtained is a joint decree or a severable one and that in case of a
            joint and inseverable decree if the appeal abated against one or
            the other, the same cannot be proceeded with further for or against
            the remaining parties as well. If otherwise, the decree is a joint
E           and several or separable one, being in substance and reality a
            combination of many decrees, there can be no impediment for the
            proceedings being proceeded with among or against those
            remaining parties other than the deceased. As observed in Nathu
            Ram case (supra) itself, the Code does not itself provide for the
            abatement of the appeal against the other respondents even where,
F           as against one such it has abated but it is only the courts which
            have held that in certain circumstances the appeal also would
            abate against a co-respondent as a result of abatement against
            the deceased respondent. The same would be the position of an
            appeal vis-a-vis the appellants, as in the other cases. Order 22
G           Rule 4 also was considered not to provide for abatement of the
            appeal(s) against the co-respondents of the deceased respondent
            and it was specifically observed therein that to say that the appeals
            against them also abated in certain circumstances is not a correct
            statement. It was held that the appeals against such other

H
HEMAREDDI (D) THROUGH LRs. v. RAMACHANDRA                                 283
    YALLAPPA HOSMANI [K. M. JOSEPH, J.]

 respondents cannot be proceeded against and, therefore, had to           A
 be dismissed, in certain circumstances.”
                                               (Emphasis Supplied)
    “34. In the light of the above discussion, we hold: -
     (1) Wherever the plaintiffs or appellants or petitioners are found   B
 to have distinct, separate and independent rights of their own and
 for purpose of convenience or otherwise, joined together in a single
 litigation to vindicate their rights, the decree passed by the court
 thereon is to be viewed in substance as the combination of several
 decrees in favour of one or the other parties and not as a joint and
 inseverable decree. The same would be the position in the case           C
 of defendants or respondents having similar rights contesting the
 claims against them.
     (2) Whenever different and distinct claims of more than one
 are sought to be vindicated in one single proceedings, as the one
 now before us, under the Land Acquisition Act or in similar nature       D
 of proceedings and/or claims in assertion of individual rights of
 parties are clubbed, consolidated and dealt with together by the
 courts concerned and a single judgment or decree has been passed,
 it should be treated as a mere combination of several decrees in
 favour of or against one or more of the parties and not as joint and     E
 inseparable decrees.
     (3) The mere fact that the claims or rights asserted or sought
 to be vindicated by more than one are similar or identical in nature
 or by joining together of more than one of such claimants of a
 particular nature, by itself would not be sufficient in law to treat     F
 them as joint claims, so as to render the judgment or decree passed
 thereon a joint and inseverable one.
     (4) The question as to whether in a given case the decree is
 joint and inseverable or joint and severable or separable has to be
 decided, for the purposes of abatement or dismissal of the entire
                                                                          G
 appeal as not being properly and duly constituted or rendered
 incompetent for being further proceeded with, requires to be
 determined only with reference to the fact as to whether the
 judgment/decree passed in the proceedings vis-a-vis the remaining
 parties would suffer the vice of contradictory or inconsistent
                                                                          H
284             SUPREME COURT REPORTS                            [2019] 7 S.C.R.


A            decrees. For that reason, a decree can be said to be contradictory
             or inconsistent with another decree only when the two decrees
             are incapable of enforcement or would be mutually self-destructive
             and that the enforcement of one would negate or render impossible
             the enforcement of the other.”
B                                                           (Emphasis Supplied)
               17. Is this a case when the appellant and his brother were having
      distinct and independent claims and rights and for the sake of convenience
      they had joined as plaintiffs originally in the suit and as appellants
      subsequently in the appeal? Is this a case where there is joint decree or
C     is it is a case where the decree is severable? Is it therefore a severable
      decree or a combination of two decrees? Whether the decree if passed
      by the appellate court in favour of the appellant would result in a decree
      which is contradictory to the decree passed by the trial Court.
             18. In this case, undoubtedly as we have noted the appellant and
D     his late brother sued as plaintiffs for a declaration that the first defendant
      was not the adopted son and he has no rights. They also sought a
      prohibitory injunction. The suit stood dismissed by trial court. Let us
      take the converse position. Assuming that the suit was decreed by the
      trial court and appeal was carried by the defendants, and pending the
      appeal by the defendants, if the late brother of the appellant had died
E     and if the defendants had not impleaded the legal representatives of late
      brother and the appeal abated as against him, would it then not open to
      the appellant as respondent in the appeal to contend that if the appeal
      was to be allowed to proceed in the absence of the legal representatives
      of his late brother and succeed, there would be an inconsistent decree.
F     On the one hand, there will be a decree by the trial Court declaring that
      the first defendant was not the adopted son and had no interest in the
      property qua the late brother of the appellant. On the other hand, the
      appellate court could be invited to pass a decree which should be to the
      effect that the first defendant was found to be the adopted son and had
      right and interest over the property and a declaration to that effect would
G     have to be granted. Would not the appellate court then have to necessarily
      hold though the decree in favour of the deceased brother of the appellant
      has become final, and under it, a declaration is granted that the defendant
      No.1 is not the adopted son and he has no right to claim the property and
      there is an injunction against him that he is the adopted son opposed to
H     the decree which has been passed by the trial court which has attained
    HEMAREDDI (D) THROUGH LRs. v. RAMACHANDRA                                  285
        YALLAPPA HOSMANI [K. M. JOSEPH, J.]

finality. We would think that the appellate court would indeed have to         A
refuse to proceed with the appeal on the basis that allowing the appeal
by the defendants would lead to an appellate decree which is inconsistent
with the decree which has become final as against the deceased brother
of the appellant.
       19. We would think that the situation cannot be any other different,    B
when we contemplate the converse of the aforesaid scenario which
happens to be the factual matrix obtaining in this case. The right which
was set up by the appellant alongwith his late brother was joint. They
were members of the joint Hindu family consisting of their late father
and which consisted of late Govindareddi, their father Shriram Reddy
and Basavareddi, who was none other than the husband of the second             C
defendant. This is not a case where their claims were distinct claims.
This is not the situation which was present in the case dealt with by the
Constitution Bench under the land acquisition case. Therein, several
persons came together and sought relief in one proceeding. We would
think that this is not the position in this case.                              D
      20. It may be true that if a separate suit had been filed by the late
brother and it had abated on his death, there will be no decree on merits
and the suit would have abated. No doubt, it could be argued that even
though the appellant and his late brother set up the case of joint right, it
would only mean that they are co-owners of the property, and therefore,        E
they had independent rights as co-owners which could be canvassed in
two different proceedings, and therefore, the decree of the trial court
dismissing the suit be treated as two different decrees - one decree
against the appellant and the other against his late brother. Even then,
the decree, which the High court would be invited to pass, would be
contradictory and inconsistent with the decree as against late brother of      F
the appellant which may not be permissible in law.
        21. The decree, which the appellant, if successful in the appeal,
would obtain, would be absolutely contrary to the decree which has also
attained finality between his late brother and the defendants. They are
mutually irreconcilable, totally inconsistent. Laying one side by side, the    G
only impression would be that one is in the teeth of the other. In one, the
suit is dismissed whereas in the other, the suit would have been decreed.
      22. The argument that in view of the order passed on 10/09/2001
by which despite the death of late brother of the appellant, permission to
                                                                               H
286             SUPREME COURT REPORTS                            [2019] 7 S.C.R.


A     prosecute the appeal was granted by the court there would arise an
      estoppel against the order being passed holding that the appeal has abated
      as a whole, cannot be accepted. The impact of death of the late brother
      of the appellant qua the proceeding is one arising out of the incompatibility
      of a decree which has become final with the decree which the appellant
      invites the appellate court to pass. In such circumstances, the mere fact
B
      that the appellant was permitted to prosecute the appeal by an
      interlocutory order would not be sufficient to tide over the legal obstacle
      posed by the inconsistent decree which emerges as a result of the failure
      to substitute legal representative of the late brother and the abating of
      the appeal filed by his late brother. Consequently, we see no merit in the
C     appeal. It is accordingly dismissed.


      Divya Pandey                                                 Appeal dismissed.



D




E




F




G




H