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Hemareddi And Another v. Ramachandra Yallappa Hosmani And Others
Factual and Procedural Background
Plaintiffs 1 and 2 filed suit O.S No. 113/1992 before the Civil Judge, Dharwad, seeking (i) a declaration that defendant No. 1 is not the adopted son and holds no right or interest in the suit property; (ii) a permanent injunction restraining defendants from disturbing joint possession of the agricultural land shared by plaintiff and defendant No. 2; and (iii) an award of costs. The suit property originally belonged to a Hindu joint family headed by Govindareddi, who died in 1946 leaving two sons and a daughter. Plaintiffs 1 and 2 are descendants of one son, Ramareddi, while defendant No. 1 is the adopted son of defendant No. 2, the wife of the other son, Basavareddi.
The plaintiffs alleged that defendant No. 2 fabricated an adoption deed dated 27 April 1991, falsely adopting defendant No. 1 in 1983 without any valid ceremonies or incidents of adoption. They denied the validity of the adoption. The defendants contested, asserting the adoption was valid and ceremonies took place. The trial court dismissed the suit, holding plaintiffs failed to prove the adoption formalities were not complied with. Plaintiffs appealed.
During the appeal, the second plaintiff died, raising a preliminary issue whether the appeal could continue. The court noted the appeal of the deceased plaintiff had abated due to non-joinder of legal representatives, but permitted the first plaintiff to continue the appeal. The court considered whether the appeal could survive given the joint interest of the plaintiffs and the indivisibility of the decree.
Legal Issues Presented
- Whether the appeal abates upon the death of one of the plaintiffs who jointly claimed interest and relief in the suit property.
- Whether the first plaintiff can continue the appeal alone as a co-owner after the death of the second plaintiff.
- Whether the adoption of defendant No. 1 by defendant No. 2 is valid and binding on the joint family.
Arguments of the Parties
Defendants' Arguments
- The suit is not maintainable.
- All necessary ceremonies for adoption were duly performed.
- Defendant No. 1 is the valid adopted son of defendant No. 2.
- Upon death of plaintiff No. 2, the appeal abates entirely as the decree is one and indivisible.
Plaintiffs' Arguments
- The adoption deed is false and fabricated.
- No valid ceremonies or incidents of adoption took place.
- The death of plaintiff No. 2 does not cause the appeal to abate.
- Plaintiff No. 1, as brother and co-owner, can continue the appeal and succeed to the interest of plaintiff No. 2.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State Of Punjab v. Nathu Ram, AIR 1962 SC 89 | Principles governing whether an appeal can continue after death of a party; tests for appeal abatement. | The Court applied the test that if the appeal involves parties whose interests are indivisible, the appeal abates upon death of one party without legal representatives joining. |
| Srichand v. Jagdish Pershad Kishan Chand, AIR 1966 SC 1427 | Appellate Court cannot proceed if appeal abates for one party when the decree is common to all plaintiffs or defendants. | The Court held that since the decree proceeds on a common ground for both plaintiffs, the appeal abates upon death of one plaintiff. |
| Ramappa Mallappa Karunnavar v. Vinayak Shripatharo Patwardhan, 1973 1 Mys. LJ 294 | Appeal abatement when joint claims are made and no separate claim exists against defendants; Order XXII Rule 4 CPC. | The Court relied on this to conclude the appeal abated as the claims and decree were joint and indivisible. |
| Babu Sukhram Singh v. Ram Dular Singh, AIR 1973 SC 204 | Authority on appeal abatement principles and joint claims. | Quoted to reinforce that joint claims by parties whose interests are inseparable lead to abatement of appeal if one party dies. |
| Dattatraya Prahlad Mutalik Desai v. Basawanappa Chanabasappa Mulgund, 1960 Mys. LJ 1028 | Distinguished case where appeal did not abate because deceased party was superfluous and LRs were not brought on record. | Distinguished from present case as all parties here had joint interest. |
| Shivangouda Lingangouda v. Gangawwa Basappa, 1966 2 Mys. LJ 148 | One co-owner can sue a trespasser without all co-owners being parties. | Distinguished from present case where joint family interest was involved and all parties were necessary. |
Court's Reasoning and Analysis
The Court began by examining the preliminary objection that the appeal abates due to the death of plaintiff No. 2. It noted that the decree below was joint and indivisible, based on a common ground affecting both plaintiffs equally. The Court referred to established Supreme Court and High Court precedents setting out the tests for appeal abatement, emphasizing that if the appeal involves parties whose interests are inseparable, the death of one party without legal representatives joining results in abatement of the entire appeal.
The Court rejected the plaintiffs' contention that plaintiff No. 1 could continue alone as a co-owner, explaining that under Section 6 of the Hindu Succession Act, the interest of the deceased plaintiff does not devolve on plaintiff No. 1 as a co-owner when other Class-I heirs survive. Thus, the appeal cannot proceed in the absence of the deceased plaintiff's legal representatives.
Given that the appeal of plaintiff No. 2 has abated and the decree is indivisible, the Court reasoned it cannot pass conflicting decrees regarding the validity of the adoption. Therefore, the trial court's finding that the adoption was valid stands confirmed. The Court distinguished cited authorities relied upon by plaintiffs as factually inapposite.
Holding and Implications
The entire appeal stands abated.
The Court held that due to the death of plaintiff No. 2 and the absence of legal representatives to continue the appeal, and because the decree was joint and indivisible, the appeal cannot be maintained by plaintiff No. 1 alone. Consequently, the trial court's judgment dismissing the plaintiffs' suit and validating the adoption stands confirmed. This decision directly affects the parties by affirming the validity of the adoption and dismissing the plaintiffs' challenge. No new legal precedent was established beyond the application of existing principles on appeal abatement and joint interest.
Ajit J. Gunjal, J.:—
Plaintiffs 1 and 2 have filed a suit in O.S No. 113/1992 on the file of Civil Judge, Dharwad for the relief of (i) declaration that the defendant No. 1 is not the adopted son and has no title, interest or right over the suit property; (ii) defendants be restrained by permanent injunction from disturbing the joint possession of the suit agricultural land of the plaintiff and defendant No. 2 and (iii) plaintiff be awarded cost of the suit.
2. The fact leading to the filing of the suit can be summarized as follows:
One Govindareddi, the propositus died in 1946 leaving behind two sons and one daughter Ramareddi, Tulasawwa and Basavareddi. Plaintiffs 1 and 2 are the children of Ramareddi, defendant No. 1 is the adopted son of defendant No. 2. Defendant No. 2 is the wife of Basavareddi. The plaintiffs' case is that Govindareddi died in 1946 as the head and manager of the Hindu joint family consisting of himself, Ramareddi, and Basavareddi. The suit properties are the joint family properties of Govindareddi and his sons. It appears the plaintiffs have filed another suit in O.S No. 66/1991 against defendant No. 2 for a declaration that she has no right, title or interest in the suit properties and that the plaintiffs are in occupation and enjoyment of the suit properties and consequently for relief of permanent injunction. The said suit, it appears is still pending. It is the further case of the plaintiffs that notwithstanding the filing of the said suit, temporary injunction is operating against defendant No. 2, she at the instigation of some of the illadvisors has created a false document of an adoption deed dated 27th April 1991 adopting defendant No. 1. The defendants have collusively created the said baseless, false adoption deed taking defendant No. 1 in adoption by defendant No. 2 on 16.05.1983 According to the plaintiffs, no ceremonies have taken place and there was no incident of giving defendant No. 1 by defendants 3 and 4 to defendant No. 2. The story is imaginary etc. The sum and substance is the total denial of adoption of defendant No. 1 by defendant No. 2.
3. The defendants have entered appearance and have contested the suit inter alia contending that the suit is not maintainable and the necessary ceremonies for adoption have taken place and defendant No. 1 is the adopted son of defendant No. 2.
4. The learned trial Judge, having considered the oral and documentary evidence, has dismissed the suit holding that the plaintiffs have failed to prove that all necessary formalities regarding adoption having not taken place. The said judgment and decree is questioned in this appeal.
5. Before embarking upon the merits and demerits and the contentions of the learned counsel appearing for the plaintiffs and the defendants, it is necessary to consider the preliminary objection raised by Mr. Padubidri Raghavendra Rao, learned counsel appearing for the defendants. He submits that the second plaintiff having died during the pendency of the appeal and the appeal having abated insofar as the plaintiff No. 2 is concerned, the proceedings as a whole would abate and does not survive for consideration inasmuch as the decree which is passed by the Courts below is one and indivisible.
6. Mr. V. Tarakaram, learned senior counsel appearing for the plaintiffs would submit that the fact that one of the plaintiffs having died, the proceedings do not abate. He would also submit that the first plaintiff being the brother of deceased second plaintiff, would succeed to his interest and would be a coowner and consequently the question of the entire appeal abating does not arise. He would submit that the first plaintiff can still continue with the proceedings.
7. Before adverting to the submission made by the learned counsel appearing for the parties, it is necessary to refer to certain events which have transpired in this appeal.
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 dead and in view of the death of second appellant, the matter is adjourned by two weeks to enable the appellants' counsel to take steps.”
9. The appeal was relisted on 10-09-2001. This Court has observed thus:
“It is submitted that appellant No. 2 died about 5 to 6 months ago. No steps are taken to bring the LRs of appellant No. 2 on record. 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 coowners of suit schedule property. Since the LRs of appellant No. 2 have not evinced interest to prosecute the appeal, appellant No. 1 prays permission to prosecute the appeal. Accordingly permission is granted.”
10. It is to be noticed that the appeal of appellant No. 2 (plaintiff No. 2) as of now has abated which would necessarily mean that the judgment and decree passed by the learned trial Judge insofar as rejection of the contention of the plaintiffs regarding the said adoption is invalid stands. The said finding stands confirmed. It is to be noticed that the law as to the divisibility or indivisibility of the judgment and decree and whether the proceedings would continue, fell for consideration in several decisions.
11. In the case of State Of Punjab v. Nathu Ram . AIR 1962 SC 89. it is observed thus:
“The question whether a Court can deal with such matters or not, will certainly depend on facts of each case and therefore, no exhaustive statement can be made about the circumstances when this possible or is not possible. It may, however, be stand that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than, the deceased can said to be properly constituted or can be said to have all the necessary parties for the said decision of the controversy before the Court. The test to determine this has been discussed in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Courts coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Courts passing the decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent (b) when the appellant could not have brought the action for the necessary reliefs against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents. If the appeal succeeds, will be ineffective, that is to say, it could not be successfully executed.”
12. Apparently, the test is that not all the three ingredients as stated in the above said decision are to be cumulatively shown. Even if one of them is satisfied, the Court having regard to the circumstances can hold that the appeal has abated in its entirety. In the case of Srichand v. Jagdish Pershad Kishan Chand . AIR 1966 SC 1427. the Apex Court has observed thus:
“The appellate Court has no power to proceed with an appeal and to reverse and vary the decree in favour of application the plaintiffs or defendants under Order 41, Rule 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned.”
13. In the case of Ramappa Mallappa Karunnavar v. Vinayak Shripatharo Patwardhan . 1973 1 Mys. LJ 294. this Court has observed:
“Now the question is whether the appeal has abated or not, I have seen earlier in the plaint a joint claim is made against all the defendant No. 2. The first appellate Court, as mentioned earlier decreed the suit in part against all the defendants. The High Court has dismissed the suit again all the defendants. In this Court relief asked for was again by the defendants. No separate claim was made against any of the defendants. Under these circumstances, quite clearly, the appeal has abated as a whole under order XXII Rule 4 of CPC. The appeal is accordingly dismissed. No costs.”
14. This passage is quoted by this Court from a decision of the Apex Court in the case of Babu Sukhram Singh v. Ram Dular Singh . AIR 1973 SC 204..
15. Apparently, in the case on hand, it is to be noticed that the plaintiffs 1 and 2 claimed that they are the members of the joint family and they have joint interest. Both of them in tandem, have questioned the adoption of the defendant No. 1 by defendant No. 2. The case of both, the plaintiff No. 1 and plaintiff No. 2 is one and the same. There cannot be any difference. The suit filed by the plaintiffs is dismissed. Now when this Court has already passed an order holding that the proceedings and the appeal insofar as appellant No. 2 is concerned has abated, which would necessarily mean that the judgment and decree passed by the learned trial Judge holding that there is a valid adoption stands confirmed. This Court certainly cannot vary the judgment and decree and take a different view which would lead to anomalous situation. Insofar as one of the coparceners is concerned, the adoption is deemed to have been valid and insofar as the other coparcener is concerned, the adoption would be invalid. A reading of the plaint averments and the prayer would be a conclusive proof to show that the interest of plaintiffs 1 and 2 are one and the same. It cannot be said that the interest of plaintiff No. 2 has devolved upon plaintiff No. 1 and he can continue the proceedings as a coowner. Apparently, this would attract Section 6 of the Hindu Succession Act. This is not a case where the plaintiff No. 1 would become a coowner by survivorship. Proviso to Section 6 would clearly indicate that if the deceased has left the other legal heirs who are classified as Class-I, the survivor will not take the property of the deceased as a coowner. That is the case on hand. Apparently, a statement was made on an earlier occasion that the legal representatives of the plaintiff No. 2 have not evinced any keen interest to proceed with the matter. When that is the case, I am of the view that the decree which is passed by the learned trial Judge is one and indivisible and there cannot be two conflicting decrees in respect of the same relief which is sought for by the plaintiffs. Insofar as the decisions which are cited by Mr. Tarakaram learned senior counsel is concerned, it is to be noticed that those decisions are not applicable to the case on hand. In the case of Dattatraya Prahlad Mutalik Desai v. Basawanappa Chanabasappa Mulgund . 1960 Mys. LJ 1028. is concerned it is to be noticed that was a case where one of the parties had died and this Court was of the opinion that since one of the superfluous parties had died pendente lite and since his LRs were not brought on record, the appeal does not abate. That is not the case here. In the case of Shivangouda Lingangouda,… v. Gangawwa Basappa,…. . 1966 2 Mys. LJ 148. that was also a case where a coowner had sued against a trespasser. This Court was of the opinion that in a suit for ejectment a treapasser of the very property owned by him and others jointly or as coowners it is always open for one of the coowners to sue for recovery of the possession and other coowners are not necessary parties in a suit of this nature. The facts once again are altogether different.
16. As stated earlier, a suit was filed on the basis that they are the members of the joint family and the adoption of defendant No. 1 is not binding on the family. Obviously, there cannot be two separate set of decisions in respect of the said adoption. Having regard to the factual aspect, I am of the view that the appeal of plaintiff No. 1 does not survive for consideration. Consequently, the entire appeal stands abated.
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