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Midnapore Zemindary Co., Ltd. v. Amulya Nath Roy Chowdhury And Ors.
Factual and Procedural Background
Three plaintiffs sued the Midnapore Zemindari Company seeking a declaration of their lakheraj title and recovery of possession of certain lands. The plaintiffs alleged the lands formed part of a Nishkar Mehal they held (lakheraj) and that the Company had included some of those plots in the rent lands held under the Company and had dispossessed them; the Company had also sued the plaintiffs for rent. The Company denied the plaintiffs' lakheraj title, relied on the Record of Rights in its favour and pleaded limitation.
The Trial Court decided all issues against the plaintiffs and held the suits barred by limitation. On appeal the Subordinate Judge reversed the Trial Court, decreed the plaintiffs' lakheraj rights, confirmed their possession and awarded costs against the defendants. The Company appealed to this Court. During the pendency of Appeal No. 250 one of the respondents (one of the plaintiffs) died; the appellants' application to set aside the abatement was rejected. A preliminary objection was raised that the appeal had abated as to the deceased respondent and, because the suit sought joint possession by co-owners whose shares were not defined, the appeal was incompetent in the absence of the deceased respondent's heirs or legal representatives.
Legal Issues Presented
- Whether an appeal can proceed in the absence of a deceased respondent (one of several co-owners) without substitution of his heirs or legal representatives.
- Whether, where co-owners sued for joint possession and the shares were not defined, an appeal abates only as against the deceased respondent or whether the appeal is rendered incompetent as a whole in the deceased respondent's absence.
- Whether the Court should, in the circumstances, add the legal representatives of the deceased respondent under Order XLI, Rule 20 when substitution had previously been refused for delay.
Arguments of the Parties
Respondents' Arguments
- The learned Advocate for the respondents contended that because one respondent died during the pendency of Appeal No. 250 the appeal abated as to him and, given that the suit sought joint possession by co-owners, the appeal was incompetent in the absence of that respondent (i.e., his heirs or representatives were necessary parties).
- He relied on the decision in Manindra Chandra Nandi v. Bhagabati Devi Chowadhurani as practically indistinguishable and supportive of his contention.
Appellants' Arguments
- The learned Counsel for the appellants contended that abatement had occurred only as against the deceased respondent and that the appeal could proceed as to the other respondents who remained on the record.
- The appellants applied to set aside the abatement (an application which this Court rejected).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Manindra Chandra Nandi v. Bhagabati Devi Chowadhurani, 90 Ind. Cas. 986; 30 C. W. N. 45; A.I.R. 1926 Cal. 335 | Illustrative authority on abatement/competency where a party dies during appeal in matters of joint interest. | Referred to by respondents' counsel as practically indistinguishable; the Court relied on its reasoning to support the conclusion that the appeal could not proceed in the absence of the deceased respondent's representatives. |
| Raj Chunder Sen v. Gangadas Seal, 31 I.A. 71; 31 Order 487; 8 Order W. N. 442; 14 M. L. J. 147; 1 A. L. J. 145; 8 Sar. P. C. J. 623 (P. C.) | State the test: whether an appeal can proceed in the absence of a deceased party depends on the particular circumstances; ask whether, in the absence of the deceased party, the appeal can proceed. | Adopted by the Court as the correct test to determine competency of the appeal in the absence of the deceased respondent. |
| Kali Dayal Bhattacharjee v. Nagendra Nath Pakrashi, 54 Ind. Cas. 822; 30 C. L. J. 217; 24 C. W. N. 44 | Authority discussing abatement/substitution, the application of Order XXII rules and related procedural principles (including observations on substitution and extension of time). | Quoted by the Court (and its judges) to support the view that, given the circumstances and prior refusal to allow substitution for delay, the appeal could not properly proceed and substitution under Order XLI, Rule 20 ought not be exercised to permit the appellants to continue the appeal. |
Court's Reasoning and Analysis
The Court examined whether the appeal could proceed in the absence of the deceased respondent without substitution. It observed that while Order XXII, Rule 4 C.P.C. indicates a suit abates as against a deceased defendant where no application for substitution is made in time, the determinative question is not the literal wording of the rule but whether, given the circumstances, the appeal can proceed in the absence of the deceased party.
The Court emphasized that the plaintiffs were several co-sharers who sued for joint possession and that their shares were not defined in the plaint. The lower Appellate Court had decreed joint possession in favour of the plaintiffs. The Court reasoned that if this Court were to allow the appellants to succeed as against the respondents on the record while the decree in favour of the heirs of the deceased respondent remained undisturbed, execution would be impossible and two conflicting decrees would exist (one in favour of the heirs of the deceased respondent under the lower court's decree and another under a decree the High Court might make). That potential for conflicting, irreconcilable decrees meant the appeal could not competently proceed in the absence of substitution.
The concurring judge reiterated the applicable test from Raj Chunder Sen — whether, in the absence of the deceased respondent, the appeal can proceed — and concluded it could not because of the anomalous and conflicting position that would result. He also considered whether the Court should add the deceased plaintiff's representative under Order XLI, Rule 20. Although the Court has discretion to add parties under that rule, the judge held that exercising that discretion in favour of the appellants would be wholly inconsistent with the Court's earlier refusal to allow substitution (the appellants had neglected to apply within the prescribed time and had not shown sufficient grounds for an extension). For these reasons the judge concluded the appeal could not proceed without the deceased respondent's representatives.
Holding and Implications
HOLDING: Both appeals were dismissed. Specifically, Appeal No. 250 was dismissed with costs; for related reasons the other appeal was also dismissed (as stated by the concurring judge).
Implications: The direct effect is that the decree of the lower Appellate Court stands as to the deceased respondent (because the appeal as against him abated and substitution was not allowed), and the High Court will not proceed to enter a decree affecting the rights of the deceased respondent's heirs in his absence. The Court declined to exercise its discretion under Order XLI, Rule 20 to add the deceased respondent's representatives where substitution had been previously refused for delay. The opinion does not purport to establish a new general rule beyond applying established authorities and the test of whether an appeal can fairly and effectively proceed in the absence of a deceased party.
1. In the suits out of which these two Appeals Nos. 249 and 250 have arisen the plaintiffs who were some three in number sued the defendants, the Midna-pore Zemindari Co., for a declaration of their lakheraj title and for recovery of possession of the disputed lands on the ground that these lands in suit appertain to a certain Nishkar Mehal which they held and that they had been dispossessed by the defendants Company who have included some plots of their lakheraj lands in the rent lands which the plaintiffs held under the defendants. The defendants had sued them for rent both of the rent land and the lakheraj land and so dispossessed them; they, therefore, sue for declaration of their title and recovery of possession.
2. The defendants Company contested the suit and their case was that the Record of Rights was in their favour, the plaintiffs had no lakheraj title to the lands in suit and the case was barred by limitation.
3. The Trial Court decided all the issues against the plaintiffs and found among other findings that the suits were barred by limitation. On appeal the judgment of the Trial Court was reversed and the learned Subordinate Judge ordered that the suit be decreed, the plaintiffs' lakheraj right to the lands in suit be declared, that they be confirmed in and do get possession of the same and that they do get their costs from the defendants.
4. The defendant Company preferred appeals to this Court and on appeals being called on a preliminary objection was raised by the learned Advocate for the respondents so far as concerns the Appeal No. 250. The contention of the leaned Advocate is that as one of the respondents in this appeal died during the pendency of the appeal, the appeal so far as he was concerned abated. The appellants applied to set aside the abatement and this application was rejected by this Court. He then contends that the suit was one for joint possession by the plaintiffs and that the present appeal is incompetent in the absence of one of the respondents. In support of his contention he refers to the case of Manindra Chandra Nandi v. Bhagabati Devi Chowadhurani 90 Ind. Cas. 986 : 30 C. W. N. 45 : A. I. R. 1926 Cal. 335 The facts of that case are practically indistinguishable from the facts of the present case.
5. The learned Counsel who has appeared. for the appellants contends that the suit has abated only against one of the respondents and that it can proceed against the other respondents and has not abated against them also.
6. No doubt in view of Order XXII, Rule 4, C. P. C., it cannot be said that the case has abated as against the remaining respondents. But that is not the point. The point is whether the appeal can proceed in the absence of the dead respondents without the substitution of his heirs. The suit is, by a number of co-sharers and their shares were not defined in the plaint. They sued for joint possession and have obtained a decree for joint possession from the lower Appellate Court. Supposing for the sake of argument that the appeal succeeds and we make a decree in favour of the appellants setting aside the decree of the lower Appellate Court, so far as concerns the respondents on the record, such a decree would be incapable' of execution, because the decree in favour of the heirs of the dead respondent has not been set aside and under that decree he should be entitled to possession. If, therefore, in such a case we make a decree in favour of the appellants as against the respondents who are en the record there will be two conflicting decrees in existence. Therefore, clearly the appeal cannot proceed in the absence of the heirs of the dead respondent and is, therefore, incompetent.
7. The Appeal No. 250 is, therefore, dismissed with costs.
Page, J.
8. I agree that each of these appeals should be dismissed. I desire, however, to add a few observations with regard to Appeal No. 250. In that case the lower Appellate Court has found that the plaintiffs are three co-owners of certain lakheraj lands. The defendants-appellants contend that the lands are held by the plaintiffs as tenants under them. One of the plaintiffs-respondents has died pending the appeal to this Court and inasmuch as his legal representative were not substituted in due time, and an application for leave to substitute his representatives was rejected the appeal as against that plaintiff has abated. The result is that in respect of one of the three co-owners of this lakheraj land the decree of the lower Court stands. The defendants contend, notwithstanding the abatement of the appeal as against the deceased co-plaintiff, that they are entitled to proceed with the appeal as against the other two co-plaintiffs who have duly been made respondents. The learned Advocate on behalf of the appellants based his contention upon the terms of Order XXII, Rule 4 54 Ind. Cas. 822; 30 C. L. J. 217; 24 Order W. N. 44. which provides that "where within the time limited by law no application is made under Rule 1 the suit shall abate as against the deceased defendant." This rule applies alike to a defendant and to a respondent, (Order XXII, Rule 11). The learned Advocate contends that on a true construction of sub-Rule 54 Ind. Cas. 822; 30 C. L. J. 217; 24 Order W. N. 44. in circumstances such as those obtaining in these proceedings the appeal abates only as against the deceased respondent. He pointed out that the words "as against the deceased defendant" were not contained in the corresponding Section 368 of the Code of 1882. In my opinion, that is not the meaning and effect of this sub-rule. Whether or not the appeal abates as against the deceased respondent only or as a whole must depend upon the particular circumstances of each case the test to be applied being whether in the absence of the respondent against whom the appeal has abated, the appeal can proceed: Raj Chunder Sen v. Gangadas Seal 31 I. A. 71 : 31 Order 487 : 8 Order W. N. 442 : 14 M. L. J. 147 : 1 A. L. J, 145 : 8 Sar. P. C. J. 623 (P. C.). Now, if the appellants were to succeed in this appeal as against the two respondents on the record the result would be that whereas the lands in suit must be taken under the decree of the lower Subordinate Court to be lakheraj lands belonging to the co-owners in so far as the deceased plaintiff was concerned, under the decree of the High Court the lands would be held not to be lakheraj lands as against the other two co-owners who failed in the appeal. The creation of a situation so strange and anomalous ought not to be permitted, and in circumstances such as those which prevail in this case, I am of opinion that the appeal cannot proceed in the absence of the representatives of the deceased plaintiff-respondent: see Kali Dayal Bhattacharjee v. Nagendra Nath Pakrashi 54 Ind. Cas. 822 : 30 C. L. J. 217 : 24 C. W. N. 44.; Manindra Chandra Nandi v. Bhagabait Debi Chowdhurani 90 Ind. Cas. 986 : 30 C. W. N. 45 : A. I. R. 1926 Cal. 335 The learned Advocate for the appellants further contended that if the appeal was not competent unless the legal representatives of the deceased plaintiff were on the record, the Court was entitled and in the circumstances ought to add the legal representative of the deceased plaintiff as a respondent under Order XLI, Rule 20. Whether in any particular case the Court will add or refuse to add a party to an appeal under Order XLI, Rule 20, is a matter which is left to the direction of the Court. In this case I am of opinion that the Court would not be justified in exercising its discretion under Order XLI, Rule 20 in favour of the appellants for this among other sufficient reasons that if the Court were to allow the appellant to add the representative of the deceased plaintiff as a party to the appeal the Court would be acting in a manner wholly inconsistent with its own previous order by which the application of the appellants for the substitution of the representative of the deceased plaintiff as a respondent was rejected upon the ground that the appellants had neglected to apply for substitution within the time provided in, that behalf, and had not been able to satisfy the Court that there was any sufficient ground for an extention of time being granted, [see the observations of Mookerjee and Panton, JJ. in Kali Dayal's case 54 Ind. Cas. 822; 30 C. L. J. 217; 24 C. W. N. 44. at page 49 Page of C. W. N.---[Ed.] In these circumstances, in my opinion, both the appeals must be-dismissed.
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