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Case Number

Second Appeal No. 319 of 1922

Attorney(S)

H.V Divatia, for the appellants.
M.H Metha, for the respondents.

Judges

Sir Lallubhai Shah
Kt.
A.C.J
Fawcett, J.

Acts

Rule. 4, Sub-rule (3) read with section 107(2) of the Code,
section 368 of the Civil Procedure Code of 1882,
Order XLI, Rule 33, Civil Procedure Code.
section 368 of the Code, 1882.The
section 368 of the Code of 1882
Rule 9(2) of Order XXII
Rule 9 of Order XXII
Sub-rule (3) of Rule
Rule 9, Sub-rule (2),
Sub-rule (3)

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Smart Summary

Structured Summary of the Opinion (Sir Lallubhai Shah, A.C.J. and Fawcett, J.)

Factual and Procedural Background

The plaintiffs (an uncle and his nephew) sued to recover possession of a house-site, claiming as tenants-in-common. During the pendency of the suit the nephew (plaintiff No. 2) died; his widow (Bai Chanchal) was joined as his legal representative. The trial Court entered a decree in favour of the plaintiffs on 8 April 1919. The defendants appealed to the District Court.

While the appeal was pending, Bai Chanchal (respondent No. 2) died in November 1919. No steps were taken to place her legal representative on the record until March 1921, when the appellants applied to the lower appellate Court to treat the surviving respondent (respondent No. 1) as the heir of respondent No. 2 so that the appeal could proceed without adding any other person. This application was opposed on the ground that the proper heir was Bai Jekore (the sister of Bai Chanchal's husband) and that, because she had not been brought on the record, the appeal had abated as to respondent No. 2.

The Assistant Judge (lower appellate Court) held that the appeal had abated as to respondent No. 2 and, further, that the appeal thereby abated as to respondent No. 1 as well. The Assistant Judge considered that a decree on appeal against respondent No. 1 alone would be infructuous because the shares of the co-owners had not been ascertained and a decree against one sharer but not the other would be anomalous.

The appellants did not make an application in the lower appellate Court under Order XXII, Rule 9(2) to set aside the abatement and bring Bai Jekore on record. The defendants appealed to this Court and joined Bai Jekore as a party respondent to the appeal.

Legal Issues Presented

Whether, when a co-owner/respondent in a suit dies during an appeal and no legal representative is placed on the record in time, the appeal abates only as to the deceased respondent or abates as to all co-owners/respondents.
Whether the lower appellate Court was correct in holding that the appeal abated as to the surviving respondent (respondent No. 1) because it had abated as to respondent No. 2.
Whether the appellants could proceed to have the appeal heard on the merits as regards the surviving respondent alone despite the abatement as to the other respondent, and what relief an appellate Court can grant in such circumstances.

Arguments of the Parties

Appellants' Position

The appellants applied in the lower appellate Court to treat the surviving respondent (respondent No. 1) as the heir of the deceased respondent (respondent No. 2) so that the appeal could proceed without adding any other person to the record.
The appellants did not make an application under Order XXII, Rule 9(2) in the lower appellate Court to set aside the abatement by adding Bai Jekore as legal representative.

Respondents' / Opposing Position

The opposition asserted that the proper heir and legal representative to be placed on the record was Bai Jekore (the sister of Bai Chanchal's husband), not respondent No. 1, and that because Bai Jekore had not been brought on the record the appeal had abated as to respondent No. 2.
The Assistant Judge (lower appellate Court) relied on the view that, because the shares of the co-owners were not ascertained, allowing the appeal to proceed as to one co-owner only would produce an anomalous and possibly infructuous result; hence the appeal should abate as a whole in the particular circumstances of a co-ownership suit.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chandarsang v. Khimabhai	Interpreting the earlier Code (section 368, CPC 1882): the Court should either declare the appeal abated as to the deceased respondent or direct the legal representative to be placed on the record.	The Court relied on this decision to support the position that under the present Code the appeal may abate only as to the deceased respondent and that it is open to proceed against the other respondents or to set aside abatement under Order XXII, Rule 9.
Raj Chunder Sen v. Ganga Das Srai (Privy Council)	Discussed with reference to section 368 (CPC 1882); observations relate to the nature of the suit (partnership suit) and to the terms of section 368.	The Court noted that the Assistant Judge relied on this decision, but distinguished it as relating to a partnership suit and to the earlier Code; it therefore did not control the present case under the Code of 1908.
Lakhmichand Rawachand v. Kachubhai Gulabchand	Illustrates the Court's inherent powers to act in the interests of justice.	The opinion observed that the Court could in principle exercise inherent powers in such circumstances, but declined to do so here because the appellants had omitted to apply in the lower appellate Court and had accepted the abatement as regards respondent No. 2 before this Court.
Kali Dayal Bhattacherjee v. Nagendra Nath Pakrashi (Calcutta High Court view cited)	Represents the Calcutta High Court view that in suits by co-owners the whole appeal practically abates if it abates with reference to one respondent.	The Court noted that this view conflicts with Chandarsang v. Khimabhai and does not appear consistent with the wording of Sub-rule (3) of Rule 4; the present Court did not adopt the Calcutta High Court's approach in this case.
Sakharam Mahoder Dange v. Hari Krishna Dange	Examples cited to show scope of Order XLI, Rule 33 (power to pass decrees "such as the case may require", including variance of decree on appeal).	Used as part of a group of authorities to support that an appellate Court can pass varied decrees to meet circumstances which have come into existence since the decree was passed.
Rustomji v. Sheth Purshotamdas	Illustrative authority on the appellate power under Order XLI, Rule 33.	Grouped with other authorities to indicate the appellate Court's power to modify decrees for practical justice on appeal.
Kanakayya v. Janardhaua Padhi	Another authority cited in relation to the power under Order XLI, Rule 33.	Cited as supporting precedent for the proposition that an appellate Court may vary decrees on grounds which have arisen since the decree was passed.
Muthuswami Ayyar v. Kalyani Animal	Authority cited in the same context as the above cases (Order XLI, Rule 33).	Placed among authorities demonstrating the appellate Court's remedial powers to fashion appropriate relief.
Parashram v. Miraji	Illustrates that a trial Court could decree joint possession for one co-owner in appropriate circumstances.	Used to show that had the trial Court succeeded only as to one co-owner's share it could have awarded joint possession accordingly; supports the view that inconsistent or multiple decrees need not make an appeal futile.
Naranbhai v. Ranchod	Similar illustration regarding decrees for joint possession where plaintiffs succeed only as to one co-owner.	Used to support the proposition that separate reliefs (including joint possession) could be fashioned without necessitating abatement of the whole appeal.

Court's Reasoning and Analysis

The Court analyzed the matter principally with reference to the procedural rules and prior decisions and proceeded as follows:

The Court held that the lower appellate Court's order which treated the appeal as having abated as to respondent No. 1 (the surviving co-owner) was incorrect. The Court relied on the wording of the relevant provision (Rule 4, Sub-rule (3) read with section 107(2) of the Code) which, as interpreted by the Court, causes the appeal to abate only "as against the deceased respondent."
The Court referred to Chandarsang v. Khimabhai as establishing that the correct course where a respondent dies is either to declare the appeal abated as to that deceased respondent and proceed against the others, or to direct that the legal representative be placed on the record. The Code of 1908 made the position clearer by adding the phrase “as against the deceased defendant,” reinforcing that abatement is primarily limited to the deceased respondent.
The Court distinguished Raj Chunder Sen v. Ganga Das Srai (Privy Council) on the ground that it related to the nature of a partnership suit and to the prior Code (1882); thus the Privy Council observations did not control the present case under the Code of 1908.
The Court acknowledged a potential practical difficulty: when abatement is not set aside as to the deceased respondent, relief granted against the remaining respondents may not be fully effective depending on the nature of the suit and the relief available on appeal. That is a factual and procedural difficulty which can vary by case.
The Court rejected the view (attributed to a Calcutta High Court decision) that in suits by co-owners the whole appeal must necessarily abate if it abates in reference to one respondent; it found that approach inconsistent with the language of Sub-rule (3) of Rule 4 and with Chandarsang v. Khimabhai.
Concretely as to this case: Bai Jekore (the person asserted to be the proper legal representative of the deceased respondent No. 2) had been joined before this Court, but the appellants had not applied below under Rule 9(2) to set aside the abatement and had accepted the abatement as regards respondent No. 2 before the Court. Because of that omission and acceptance, the Court declined to exercise its inherent powers to set aside the abatement in the interests of justice.
Nevertheless, the Court concluded that the appeal should be heard on the merits as regards respondent No. 1. If the appellants (defendants) succeed on those merits, the lower appellate Court may dismiss the suit as regards plaintiff No. 1 (respondent No. 1), thereby improving the defendants' position by limiting satisfaction of the decree to plaintiff No. 2's share only. The Court observed it was unnecessary at that stage to precise the exact effect on the trial decree or the exact nature of the decree the lower appellate Court might pass after hearing the appeal on the merits.
The Court therefore allowed the appeal as regards respondent No. 1, reversed the lower appellate Court's order relating to him, and remanded the appeal to the lower appellate Court for disposal according to law. The Court allocated costs (appellants to recover costs of the appeal here from respondent No. 1 and to pay the costs of respondent No. 2).

Holding and Implications

Core Ruling: The Court allowed the appeal in respect of respondent No. 1, held that the lower appellate Court erred in treating the appeal as abated as to respondent No. 1, reversed the lower appellate Court's order relating to respondent No. 1, and remanded the appeal to that Court for disposal according to law.

Immediate Consequences for the Parties

The abatement as regards respondent No. 2 (the deceased respondent) stands because the appellants did not apply under Order XXII, Rule 9(2) in the lower appellate Court to set it aside and accepted the abatement before this Court.
The appeal will proceed on the merits as to respondent No. 1 (the surviving co-owner). If the defendants succeed on that hearing, the lower appellate Court may dismiss the suit as regards plaintiff No. 1, leaving the decree of the trial Court to stand as regards plaintiff No. 2.
Costs were ordered: appellants to recover their costs of the appeal here from respondent No. 1 and to pay the costs of respondent No. 2.

Broader Legal Implications

The opinion interprets procedural provisions (Order XXII, Rules 4 and 9; Order XLI, Rule 33; and relevant Code provisions) to mean that abatement upon the death of a party generally affects the deceased respondent only, rather than automatically abating the whole appeal in co-ownership suits. The Court recognized practical difficulties that can arise but did not adopt a rule that the whole appeal must abate; it relied on prior decisions to support that view. The Court did not make any broad new rule of law beyond these applications to the facts; the remand required the lower appellate Court to decide the detailed questions after hearing argument.

Disposition in the original text: "Decree reversed." (Order concurred in by both judges; appeal remanded.)

Show full summary ...

Shankerbhai Manorbhai Patel v. Motilal Ramdas Shah

Sir Lallubhai Shah, A.C.J:— In this case the plaintiffs sued to recover possession of a certain house-site from the defendants. The plaintiffs were uncle and nephew and claimed the land as tenants-in-common. The nephew (plaintiff No. 2) died daring the pendency of the suit and his widow was joined as his legal representative. The trial Court passed a decree in their favour on April 8, 1919.

The defendants appealed to the District Court. During the pendency of the appeal, the respondent No. 2, Bai Chanchal, the widow of the nephew, died in November 1919. No steps were taken to bring the legal representative of the deceased respondent on the record upto March 1921, when an application was made by the appellants to the effect that the surviving respondent No. 1 was the heir and that the appeal could go on against him without any other person being brought on the record in place of the respondent No. 2. This application was opposed on the ground that the proper heir would be Bid Jekore, the sister of Bai Chanchal's husband: and that as she was not brought on the record the appeal abated as regards respondent No. 2. The learned Assistant Judge held that the appeal abated as regards respondent No. 2, and further held that in consequence thereof the appeal abated as regards respondent No. 1 also. He was of Opinion that the shares of the co-owners not being ascertained any decree that may be passed against respondent No. 1 on hearing the appeal would be infructuous as the decree of the trial Court in favour of respondent No. 2 would stand in any case.

The appellants apparently did not apply to the lower appellate Court to set aside the abatement and to bring Bai Jekore on the record as the legal representative of respondent No. 2 under order XXII, Rule 9, Sub-rule (2), as they could have and should have done when their application to treat the respondent No. 1 as the heir of respondent No. 2 was disallowed.

The defendants have appealed to this Court. They have joined Bai Jekore as a party respondent to the appeal.

It is clear that the order treating the appeal as having abated as to respondent No. I is wrong. Under Rule. 4, Sub-rule (3) read with section 107(2) of the Code, the appeal would abate as against the deceased respondent only. The words “as against the deceased defendant” have been added in the Code of 1908 and give effect to the view which was taken by this Court under the Code of 1882. In Chandarsang v. Khimabhai(1) it was held by this Court with reference to section 368 of the Code of 1882 that as regards the deceased respondent the Court ought to have proceeded under section 368 and declared that the appeal had abated as to him and proceeded against the other respondents or else to have directed that the legal representative of the deceased respondent should be placed on the record. In that case the suit was of the same nature as the present suit. Under the present Code the position is made clear and it is open to the Court either to hear the appeal as regards respondent No. 1 only or to set aside the abatement under Rule 9 of Order XXII and then to hear it as regards both the respondents. No doubt a difficulty may arise, when the abatement is not set aside under Rule 9, and the relief which the Court can grant as against the other respondents in appeal is not likely to be effective. That difficulty must depend largely upon the nature of the suit, and the possible relief that can be granted in appeal under the circumstances of the particular case. The decision in Raj Chunder Sen v. Ganga Das Srai. upon which the learned Assistant Judge has relied, has reference to a decree that was passed in a partnership suit and the observations of their Lordships of the Privy Council have relation to the nature of the suit and to the terms of section 368 of the Code, 1882.

The view taken by the Calcutta High Court that in such suits by co-owners practically the appeal abates as a whole if it abates with reference to one of the respondents conflicts with the view taken by this Court in Chandarsang v. Khimahhai(2) and does not appear to me to be consistent with the words used in Sub-rule (3) of Rule 4.

Speaking with reference to the nature of the suit here, I am not at all satisfied that it may not, he a matter of real advantage to the appellant to get rid of the decree against them at least as regards respondeat No. 1. Their right to have the appeal heard on the merits as regards this respondent is clear: and I am unable to accept the view that because the appeal has abated as regards respondent No. 2 it must be taken to abate as regards respondent No. 1 or that it could not be heard on the merits as regards him.

In this case Bai Jekore has been joined as respondent No. 2: but for the appellants it is conceded that the abatement as regards that respondent stands, as no application for setting it aside has been made.

As regards respondent No. 1, it seems to me that the appeal must be heard on the merits; and if the Court is satisfied that the plaintiffs' case is not proved it will be open to the Court to dismiss it as regards plaintiff No. 1. It is not necessary at this stage to consider exactly what the effect of such an order would be on the decree, which as now passed by the trial Court would stand as regards plaintiff No. 2; nor is it necessary to consider what decree the lower appellate Court will pass under its powers after hearing the appeal on the merits. It is enough for our present purposes to point out that if the defendants succeed, it would place them in a more advantageous position in so far as they would have then to satisfy the plaintiff No. 2 only with reference to the decree and not the plaintiff No. 1. That is an advantage which there is no valid reason in law to deprive them of simply because the appeal has abated as to one of the respondents.

It is possible for the Court to exercise its inherent powers in the interests of justice under such circumstances, as pointed out in Lakhmichand Rawachand v. Kachubhai Gulabchand. In the preseat case, though the legal representative of respondent No. 2 in the lower appellate Court is now before us, we do not consider it proper to make any order in the exercise of such powers. The appellants made no application in the lower appellate Court under Rule 9(2) of Order XXII and before us they have accepted the abatement of the appeal as regards respondent No. 2 as an indisputable fact in the case.

I would, therefore, allow the appeal against respondent No. 1, reverse the order of the lower appellate Court relating to him, and remand the appeal to that Court for disposal according to law.

Appellants to get their costs of the appeal here from respondent No. 1 and to pay the costs of respondent No. 2.

Fawcett, J.:— As the plaintiffs were tenants-in-common, I think that under Order XXII, Rules 4 and 11, the legal representative of the deceased respondent should have been added as a party by an application made within proper time under Sub-rule (i) of Rule 4. But under Sub-rule (3) the omission to do so only has the effect of making the appeal abate as against the deceased respondent. This is, I think, a clear indication of the intention of the Legislature that the appeal should not in such a case necessarily, or even ordinarily, abate as a whole. The Privy Council decision in Raj Chunder Sen v. Ganya Das Seal was based on section 368 of the Civil Procedure Code of 1882, which said that the suit should abate, without the addition of the words “as against the deceased defendant”, which is made in the Code of 1908.

Inasmuch as the appeal primarily abates only against the deceased respondent, there is still an appeal pending against the remaining respondeat, and under Order XLI, Rales 13 and 16, the appellant (unless the appeal is dismissed under Rule 11) is entitled to a normal hearing and decision.

The remaining respondent can of course raise a preliminary objection that the appeal is not maintainable against him alone; and this was successfully done in the present case. The main reasons for the Assistant Judge's view are given in paragraph 4 of his judgment, which says:—

“In the present case, the shares of respondent No. 1 and of the deceased Chauchal in the plaint property were not ascertained. They were held joint sharers so that, if the present appeal were allowed, that order would not be binding against the representatives of Chanchal. So, there would be the anomalous position that the decree would bind one sharer and not the other. This, coupled with the fact that the shares of these sharers were not ascertained, would make the order of this Court iufrnctuous.”

This follows the view taken by the Calcutta High Court that, in a case like the present, where the plaintiffs are joint owners, the necessary result is that the whole appeal abates, because the Court should not be called upon to make two contradictory decrees in the fame litigation, which would be the result of allowing the appeal as against the remaining respondent, and not disturbing the decree of the lower Court as against the deceased respondent (cf. Kali Dayal Bhattaeharjee v. Nagendra Nath Pakrashi.

But this view has not apparently been endorsed by this Court, and the decision in Chandarsang v. Khimabhai is against it, though the point is not discussed.

I agree with my learned brother that it is not a necessary consequence in every such case that the whole appeal abates. In the present case, for instance, supposing the defendants succeed in their appeal on the merits, I do not think (though I speak with some diffidence, as the point has not been argued, and is not really before us at the present stage) that the result will be so anomalous or inconvenient that the Court should merely on that account refuse to pass a decree in favour of the defendants as against the respondent No. 1. The result will be that defendants fail as regards plaintiff No. 2's share but succeed as to plaintiff No. 1's. The lower Court's order could in the circumstances be modified by (1) directing that defendants do put plaintiff Mo. 2 in joint possession of the property; (2) dismissing the suit as regards plaintiff No. 1's share; and (3) passing an equitable order as to costs. The appellate Court has, I think, power to pass such a decree as being one “such as the case may require” under Order XLI, Rule 33, Civil Procedure Code. This covers a variance of a decree under appeal, not only for error, but also on grounds which have come into existence since it was passed: see Sakharam Mahoder Dange v. Hari Krishna Dange; Rustomji v. Sheth Purshotamdas; Kanakayya v. Janardhaua Padhi(3); and Muthuswami Ayyar v. Kalyani Animal(4).

If plaintiffs in the trial Court had succeeded only regarding plaintiff No. 2's share, the Court could have passed a decree for joint possession in favour of plaintiff No. 2; (cf. Parashram v. Miraji(5) and Naranbhai v. Ranchod(6)). There was no necessity for a distinct issue regarding joint possession in the circumstances of this case.

The above remarks, however, will not in any way bind the lower-Court which will have to decide all the questions arising after hearing arguments on them.

I concur in the order proposed by my learned brother.

Decree reversed.

J.G.R

Shankerbhai Manorbhai Patel v. Motilal Ramdas Shah

Structured Summary of the Opinion (Sir Lallubhai Shah, A.C.J. and Fawcett, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Position

Respondents' / Opposing Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Immediate Consequences for the Parties

Broader Legal Implications

Shankerbhai Manorbhai Patel v. Motilal Ramdas Shah

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