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Citation Codes
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citation codes
Case Number
Advocates
  • S.L.Nandkeolyar
  • R.P.Jamwal
  • Lalnarayan Sinha
  • L.M.Sharma
  • B.C.De
Judges
  • Imam, C.J
  • Narayan, J.
Acts
  • Hindu Women's Rights to Property Act
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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • S.L.Nandkeolyar
  • R.P.Jamwal
  • Lalnarayan Sinha
  • L.M.Sharma
  • B.C.De
Judges
  • Imam, C.J
  • Narayan, J.
Acts
  • Hindu Women's Rights to Property Act
See more information ...
Smart Summary

Judgment Summary — Narayan, J.

Factual and Procedural Background

This litigation arises from an irrigation dispute in the village of Pokhwan. The plaintiffs sought a declaration entitling them to an unobstructed flow of water to Ahar No. 800 and alleged that the principal defendants (Nos. 1–46, including Ramanugrah Singh who was defendant No. 41) had unlawfully obstructed that flow by constructing "Bandhs" and "Genras", by making cuts and continuous "Pinds", and by draining water in specified plots. The plaintiffs prayed for removal of the obstructions, closure of certain cuts and openings in specified Pinds (including Pinds Nos. 944 and 788), and a permanent injunction against future obstructions.

The Subordinate Judge decreed the suit and gave specific positive directions to the principal defendants to remove and close the Pinds and cuts within 60 days, subject to execution by the plaintiffs if the defendants failed to comply. An appeal from that decree was filed on 19-12-1949. The appellant No. 39 in the appeal was Ramanugrah Singh (defendant No. 41) who died during the pendency of the proceedings. A petition for substitution of his heirs was rejected, and the competency of the appeal was contested on that basis.

A late petition was filed by Musammat Adhikari Debi, the widow of Ramanugrah Singh, asserting that she had surrendered her rights in the property to her son Ramkripal Singh (appellant No. 41) and asking that he be treated as the sole heir; that petition was considered by the Court but held to be ineffective to revive an appeal already deemed to have abated.

Legal Issues Presented

  1. Whether the appeal has abated because the heirs of the deceased appellant (Ramanugrah Singh) — specifically his widow — were not brought on the record and substituted after his death.
  2. Whether substitution was unnecessary because one heir (the son, Ramkripal Singh) was already a party to the litigation.
  3. Which procedural rule governs the situation where an appellant dies during an appeal — whether Order 41 Rule 4 should apply or whether Order 22 Rule 11 (and related provisions) govern substitution and abatement.
  4. Whether a late petition by the widow surrendering her rights (without a deed of surrender) could prevent abatement or revive the appeal.

Arguments of the Parties

Respondents' Arguments

  • The respondents contended that because the heirs of the deceased appellant Ramanugrah Singh (notably his widow) were not brought on the record and substituted, the entire appeal had abated.

Appellants' Arguments

  • The appellants argued that the entire appeal had not abated despite the failure to bring the widow on the record; they relied on authorities (including Balgajan v. Sukhu) to contend that substitution was not necessary when heirs or representatives did not seek to be placed on record.
  • The appellants' counsel specifically contended that because the son of the deceased appellant was already on the record (appellant No. 41), substitution of the widow was not material.

Additional Filings

  • The widow, Musammat Adhikari Debi, filed a petition during the hearing asserting that she had surrendered all her rights in favour of her son Ramkripal Singh and asking that he be treated as the sole heir. The widow's counsel admitted there was no deed of surrender.
  • The learned Government Advocate for the respondents conceded that the cross-objection had also abated for want of substitution of the widow.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Balgajan v. Sukhu, AIR 1948 Pat 288 Holds that a party cannot conceal the death of a party and later assert abatement; equitable principle against allowing concealment to produce abatement. The Court treated Balgajan as factually distinguishable: in Balgajan the respondents prosecuted the appeal as representatives and the legal heirs did not seek to be placed on record; therefore it could not be cited as authority for the appellants' position here.
Awadh Bihari Prasad v. Jhaman Mahton, AIR 1953 Pat 324 Discusses and distinguishes the decision in Balgajan v. Sukhu. The Court noted that Balgajan had been discussed in this later decision, reinforcing that Balgajan's facts differed from the present case.
Bhanukha Singh v. Saudagar Singh, 32 Pat 1003 Explains the position of a widow under the Hindu Women's Rights to Property Act: widow possesses a special limited statutory interest which cannot be represented by the husband's sons. The Court relied on this view to conclude that the widow's interest could not be represented by the son already on record and that she therefore had to be substituted to avoid inconsistent decrees.
Apurba Kirshna v. Ram Bahadur, AIR 1936 Pat 191 Illustrates that although in a suit a plaintiff may proceed against remaining defendants after the death of one where liability is joint and several, different considerations may apply on appeal and an appeal may abate even where a suit does not. The Court invoked this precedent to support the proposition that an appeal can abate (and that the whole appeal may abate) where inconsistency would follow if prosecution continued without substitution.
Ramphal Sahu v. Satdeo Jha, AIR 1940 Pat 346 (Full Bench) Holds that Order 41 Rule 3 (or similar provisions) cannot override Order 22 Rules 3 and 11; where appellants die, the matter must be governed by Order 22 Rule 11 regarding substitution and abatement. The Court followed this Full Bench authority, held that Order 41 Rule 4 should not be applied to circumvent Order 22 Rule 11, and treated Order 22 Rule 11 as governing the present situation.
Shanti Devi v. Khodai Prasad Singh, AIR 1942 Pat 340 Involves the question of abatement at the final stage and discusses consequences of writs/petitions by widows in relation to abatement; the judgment also referred to Lachmi Narain v. Balmakund. The Court found this decision inapplicable to the present facts (noting procedural distinctions between suit-stage petitions and appeals) and therefore did not treat it as a basis to prevent abatement here.
Lachmi Narain v. Balmakund, AIR 1924 PC 198 Privy Council principle that once a decree has been made in a suit, the suit cannot be dismissed unless the decree is reversed in appeal. This authority was cited (through Shanti Devi) to show the difference between consequences in the suit proper and consequences on appeal; the Court relied on the distinction to reject the widow's petition as ineffective to revive an already abated appeal.

Court's Reasoning and Analysis

The Court's analysis proceeds from the nature of the underlying claim, through the transmission of rights on death, to the procedural rules governing substitution and abatement.

  1. Nature of the dispute and decree: The suit concerned alleged wrongs to property (an irrigation dispute) and the Subordinate Judge's decree imposed positive obligations on each of the principal defendants (Nos. 1–46) to remove obstructions and close certain cuts and openings. The decree was executable against heirs because it enforces rights and liabilities connected with property.
  2. Transmission of rights and liabilities: Because the action is for a wrong done to property, both the right to sue and the liability to be sued are transmissible to personal representatives/heirs on death. Thus the obligations in the decree are enforceable against the heirs of a deceased defendant.
  3. Risk of inconsistent decrees: The Court applied the familiar test — whether allowing the appeal to proceed without substituting the deceased appellant's widow would produce two contradictory decrees concerning the same subject-matter. Given that the decree required positive acts by each principal defendant and was enforceable against heirs, the Court concluded it was "absolutely manifest" that two inconsistent decrees would result if the appeal proceeded without substitution.
  4. Status of the widow under statute: The Court emphasized the "peculiar position" of a widow under the Hindu Women's Rights to Property Act, noting (by reference to the Court's earlier treatment) that a widow has a special limited statutory interest which cannot be represented by her husband's sons. Consequently, the presence of the son on record did not excuse the failure to substitute the widow.
  5. Procedural rule governing substitution: The Court held that Order 22 Rule 11 (and related provisions) govern matters where appellants die during appeal; Order 41 Rule 4 should not be used to circumvent Order 22. The Full Bench decision in Ramphal Sahu v. Satdeo Jha was followed to reject application of Order 41 Rule 4 in this situation.
  6. Treatment of authorities relied on by appellants: The Court distinguished Balgajan v. Sukhu (and considered its discussion in Awadh Bihari Prasad) as factually inapposite. It also found Shanti Devi inapplicable to the present posture because of procedural differences between petitions filed in suits and the consequences of non-substitution in appeals.
  7. Late petition by the widow: A petition filed by the widow during the hearing, asserting surrender of rights in favour of her son (without a deed of surrender), could not revive an appeal that the Court had concluded had abated; the Court therefore rejected that petition as ineffective to prevent abatement.

Holding and Implications

Holding: The appeal has abated and is dismissed. The Court dismissed the appeal for want of substitution of the widow of the deceased appellant and ordered dismissal with costs. The cross-objection was also held to have abated and was dismissed; however, no order for costs was made in respect of the cross-objection.

Implications:

  • The direct effect is that the appeal terminated on the ground of abatement due to non-substitution of the widow; the appeal cannot be revived by the late petition filed by the widow in these proceedings.
  • The Court applied existing precedents and procedural rules (notably the Full Bench authority regarding Order 22 Rule 11) rather than announcing a new legal principle; thus the decision follows established authorities and does not purport to set a new precedent beyond applying those authorities to the facts before it.

Disposition: Appeal dismissed as abated; cross-objection dismissed as abated (no costs awarded as to the cross-objection).

Show full summary ...

    Sarju Singh And Others v. Ramsaroop Singh And Others

    Narayan, J.:— A question as to the competency of this appeal has arisen on account of the rejection of the petition for substitution in place of the deceased appellant No. 39, Ramanugrah Singh. The contention on behalf of the respondents is that as the heirs of the said Ramanugrah Singh have not been brought on the record, the entire appeal has abated. Besides a son who has been a party to this litigation from the very beginning and who is appellant no. 41 in this appeal, the said Ramanugrah has left a widow who had not been made a party and who has not been substituted in his place after his death. The contention on behalf of the appellants is that the entire appeal has not abated on account of the failure of the appellants to bring on the record the widow of Ramanugrah.

    2. In order to appreciate the contentions of the parties it is necessary to state a few facts. The dispute giving rise to this litigation is a dispute relating to irrigation, and the plaintiffs sought a declaration that they were entitled to have an unobstructed flow of water to Ahar no. 800 from certain Karhas and from there through certain plots and through certain cuts and Sotas for irrigation of their fields and that the defendants nos. 1 to 44 (the deceased Ramanugrah being defendant no. 41) were not entitled to put any ‘Genra’ to stop the flow of the water to cause any obstruction to the flow of the water. They made a prayer that the ‘Bandhs’ and ‘Genras’ constructed by the principal defendants be removed and that the defendants be ordered to close the new cuts in ‘Pinds’ nos. 944 and 788. A permanent injunction was also sought for restraining the defendants from putting any obstruction to the flow of water in future. The suit was decreed by the learned Subordinate Judge, and certain specific directions were given to the principal defendants nos. 1 to 46. The nature of the decree passed by the learned Subordinate Judge will appear from the following extract taken from the operative part of the judgment:

    “The principal defendants 1 to 46 are hereby directed to close the cuts of new openings in ‘Pinds’ nos. 944 and 788. They are also directed to remove the ‘Pinds’ from the southern corner of plot no. 788 up to the northern limit of Pind No. 931 and again from the southern corner of Pind No. 930 up to the northern limit of Pind No. 916. Instead of Pinds at these places the defendants, if they so choose, may retain ridges up to the height of two feet and with width up to limit of six links. The principal defendants must close the openings in Pinds Nos. 944 and 788 and remove the Pinds as directed above within 60 days from the date of the decree failing which the plaintiffs shall be entitled to get these done by taking out execution of the decree and the defendants shall be liable for costs. The principal defendants are also permanently restrained from draining out water of their fields by cuts or openings in Pinds Nos. 944 and 788 and they are also permanently restrained from constructing continuous Pind in portions mentioned above.”

    3. The appeal was filed on 19-12-1949, and the appellant No. 39 in the appeal was the defendant No. 41, Ramanugrah Singh, of the original suit. Prom the order portion of the judgment which has been quoted above it appears that all the principal defendants were directed to close the cuts and remove the Pinds. They were also directed to close the openings in certain Pinds, and the decree says that if the defendants fail to carry out the directions, the plaintiffs shall be entitled to get all these done by taking out execution. The principal defendants were further permanently restrained from draining out water of their fields by making cuts or openings in certain Pinds and from constructing continuous Pinds at certain places.

    4. The question which arises is whether, according to the nature of the claim and according to the nature of the decree, on account of the failure of the appellants to substitute the heirs of Ramanugrah, the entire appeal would be deemed to have abated. The test which has often been adopted in such cases is whether in the event of the appeal being allowed at the instance of the appellants on the record, there would or would not be two contradictory decrees in the same litigation with respect to the same subject-matter, There can be no doubt that the action giving rise to the appeal is an action for a wrong done to the property of the plaintiffs-respondents. Pokhwan is the village where the lands of the plaintiffs and the defendants as to the irrigation of which there is a dispute in the case lie, and the plaintiffs had even claimed Rs. 4000 as damages on account of injuries done to their crops of the year 1354, the injuries having been attributed to the illegal acts of the defendants.

    5. An irrigation dispute is generally a complicated matter, and the facts indicated in the judgment of the learned Subordinate Judge do go to show that the plaintiffs had propounded a case to the effect that on account of the wrongful acts of the defendants concerning the sources of irrigation considerable damage had been caused to the plaintiffs' fields and that if the obstructions placed by the defendants were not removed, the plaintiffs would continue to suffer damage in future. As a matter of fact the plaintiff-respondents have also filed a cross-objection in this appeal which is directed against that part of their claim which has been refused by the learned Subordinate Judge. Both parties have got their own plots of lands, and so far as the merits of the case are concerned the question for determination will be as to how their respective lands had been irrigated in the past and what is the nature of the irrigation right which the plaintiffs and the defendants have acquired.

    6. There is no reason for supposing that any personal right is in question in this case — a personal right unconnected with property, and therefore some of the rulings cited by the learned Counsel for the appellants have no bearing upon the question which has arisen before us. The dispute having arisen on account of an alleged wrong done to property, the right to sue upon the death of any of the plaintiffs would be transmitted to his personal representative, and the liability to be sued upon the death of a particular defendant would also be transmitted to his personal representative. These being the circumstances the question before us is whether there will be two inconsistent decrees in case the appellants, other than the heirs of the deceased appellant Ramanugrah, are allowed to prosecute the appeal against the respondents. In my opinion, it is absolutely manifest that there will be two inconsistent decrees in case the other appellants are allowed to prosecute the appeal.

    7. The learned Counsel for the appellants was not right when he submitted before us that the son of the deceased appellant being already on the record it was not necessary to substitute his widow. The decision of this Court in — ‘Balgajan v. Sukhu*’, AIR 1948 Pat 288 (A) which has been referred to by the learned Counsel for the appellants has been discussed in a later decision of this Court in — ‘Awadh Bihari Prasad v. Jhaman Mahton’, AIR 1953 Pat 324 (B). The facts of Balgajan's case (A) were entirely of a different nature. During the pendency of the appeal, one of the respondents had died leaving behind him a widow and sons and no steps were taken to bring them on the record. The appeal was disposed of in the presence of the respondents who were allowed to prosecute the suit as the representatives of the deceased, and the legal heirs did not intimate to the Court that they should have been brought on the record.

    8. Shearer J. who delivered the judgment of the Court held that it would amount to putting a premium on fraud to hold that they would be entitled to conceal certain facts from the Court and then on the basis of those facts to assert that there had been an abatement of the appeal. The position in that case was, therefore, entirely different, and it cannot be cited as a precedent in this particular case before us. The position of a widow under the Hindu Women's Rights to Property Act has been explained by me in a very recent decision (— ‘Bhanukha Singh v. Saudagar Singh’, 32 Pat 1003 (C)), and according to the view which I have taken after a review of some of the relevant authorities the widow has got a special limited statutory right and her interest cannot at all be represented by her husband's sons. We cannot, therefore, accede to the contention that because the son is on the record it is not material if the widow has not been substituted if the widow has got an interest in the property left by her husband, which she undoubtedly has, and if the decree against her and the property held by her is enforceable at the instance of the plaintiffs-respondents in the same manner in which it is enforceable against the other defendants then in the event of this appeal being allowed, there are bound to be two inconsistent decrees.

    9. I have quoted from the order portion of the judgment with a view to show that all the principal defendants have been directed to do certain positive things. The decree is a decree as against all the principal defendants Nos. 1 to 46, and each one of them is liable to do what has been directed by the decree to be done. The case of — ‘Apurba Kirshna v. Ram Bahadur’, AIR 1936 Pat 191 (D) was a case in which the plaintiff had obtained a decree on the basis of a handnote executed by all the four defendants to the suit, and what their Lordships held in that case was that though the proposition that where the liability of the defendants is joint and several, it is open to the plaintiff on the death of one of them to proceed against the remaining defendants alone is true so far as the suit is concerned, different considerations arise in an appeal arising out of a suit, and there may be cases in which a suit might not have abated but an appeal will abate.

    10. Their Lordships took the view that because against some of the defendants there was a decree for principal and interest only up to the date of suit and not for interest pendente lite against the others, there will be another decree for the aforesaid amount as well as for the additional sum of Rs. 567 if the appeal of the plaintiff was allowed, and because of this inconsistency their Lordships held that the whole appeal had abated.

    11. This is certainly a much stronger case than that because here each of the principal defendants has been directed to close the cuts of new openings, to remove the Pinds and to do certain other acts. The allegation in the plaint was that all the principal defendants in collusion with one another wanted to close the cut in Pind No. 547 and thus prevent the water from flowing from Ahar Khesar No. 800 and that by simultaneous actions they wanted “to cut off the plaintiffs' Takhta from supply of water from Karha No. 1017.” Each one of the defendants was thus made liable for the wrongful acts, and the decree lays down that all these defendants having committed the wrong, they must make the necessary alternations for restoring the original state of things. In the event of the appeal being allowed, therefore, there are bound to be two inconsistent decrees.

    12. Even though the deceased Ramanugrah has left a son and a widow if the son's appeal succeeds, there is the widow who is not the appellant and against whom the decree is enforceable. I need not repeat that the action being for a wrong done to property the decree is executable as against the heirs, and if it is executable as against the heirs, it is executable both against the widow and the son of Ramanugrah. If this is the position, then the widow is as good a principal defendant as the son or any other defendant, and, as such, if this appeal succeeds, there will be two inconsistent decrees on account of the failure of the appellants to bring on the record the widow.

    13. So far as this Court is concerned, the settled view is that in a case of this nature the Court cannot act according to the provisions of R. 4 of lo. 41. Even if the decree appealed from proceeds on a ground common to all the plaintiffs or all the defendants, in the case of one or more appellants dying the matter has to be governed by O. 22, R. 11. The Full Bench decision of this Court in — ‘Ramphal Sahu v. Satdeo Jha’, AIR 1940 Pat 346 (FB) (E) lays down that R. 3 of O. 41 cannot override, or create an exception to, O. 22, Rr. 3 and 11, and that in the case of one or more appellants dying, even where the decree proceeds on a ground common to all, the matter must be governed solely by the provisions of those latter rules. In some cases, no doubt, an observation has been made that this Full Bench decision now requires reconsideration by a larger Bench, but when there has been no reconsideration up till now, it has to be followed & respected and it would be improper to circumvent it. The question of applying O. 41, R. 4, should not therefore arise in this case.

    14. My conclusion, therefore, is that in this case there is no escape from the position that there will be two inconsistent decrees in case this appeal is allowed. Because of the peculiar position given to a widow under the Hindu Women's Rights to Property Act, she in this litigation is in the same category as any of the defendants against whom a decree has been passed. If it was open to some of the defendants to prosecute the appeal in the event of the death of others and without any substitution having been made in their place, it would also be open to the present appellants to prosecute the appeal though the widow has not been substituted. But if some of the defendants could not prosecute the appeal after the death of others and without any substitution having been made in their place, then the appeal cannot be prosecuted by the present appellants without the widow having been brought on the record. In other words, the position does not alter in the least on account of the person to be substituted being a mere widow, and that is due to the peculiar position which has been given to the widow under the Hindu Women's Rights to Property Act. The appeal, therefore, must abate.

    15. The learned Government Advocate who appeared for the respondents conceded that the I cross-objection had also abated on account of the failure to substitute the widow.

    16. Just when we were about to deliver this judgment a petition was moved on behalf of the lady. Musammat Adhikari Debi widow of the deceased appellant Ramanugrah Singh, in which it is stated that after the death of the said Ramanugrah Singh his son Ramkripal Singh came in possession of all the properties as ‘Karta’ and that the petitioner does not desire to get any share in the properties left by her husband as she is being satisfactorily maintained by her son Ramkripal Singh, appellant No. 41. It is further stated in this petition that she has surrendered all her rights, title and interest in the property left by her deceased husband in favour of her only son Ramkripal Singh. The prayer, therefore, is that Ramkripal Singh, appellant No. 41, be treated as the sole heir of the deceased Ramanugrah Singh.

    17. The filing of this petition today can be of no consequence because if the appeal has abated it has come to an end and cannot be revived on the application. Though in paragraph 4 of the petition a statement is made regarding surrender, the learned Counsel for the lady admits that there is no deed of surrender executed. Reliance has been placed on a decision of this Court in — ‘Shanti Devi v. Khodai Prasad Singh’, AIR 1942 Pat 340 (F), but this decision can have no application to the facts of the present case. The question of abatement arose in that litigation at the final stage, and if I may say so with respect it was rightly pointed out, on the basis of the well known Privy Council decision in — ‘Lachmi Narain v. Balmakund’, AIR 1924 PC 198 (G), that after a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed in appeal.

    18. The learned Counsel for the lady called our attention to a paragraph in that judgment wherein the observation has been made that the absence of the widow is a purely technical objection, the widow herself having filed a petition stating that she was not in possession of the property of the deceased plaintiff and that she gets maintenance only from the sons of the original plaintiff No. 1. From the facts as they appear from the judgment of Rowland, J. it seems manifest that this petition had been filed in the suit itself. As I have pointed out in this judgment, different considerations arise in an appeal and there may be cases in which a suit might not have abated but an appeal may abate. This, in my opinion, is exactly a case of this nature and the petition that has been filed does not alter or affect the position already created. This application, therefore, must be rejected. In the result, therefore, I would hold that this appeal has abated, and I would accordingly dismiss it with costs. The cross-objection is also dismissed because it has abated, but there will be no order for costs so far as the cross-objection is concerned.

    Imam, C.J:— I agree.

    D.H.Z

    19. Order accordingly.

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    Comments

    Sarju Singh And Others v. Ramsaroop Singh And Others
    (Apr 13, 1954)