- Bookmark
- Share
- CaseIQ
Badni (Dead) By Lrs. And Others v. Siri Chand (Dead) By Lrs. And Others
Factual and Procedural Background
The first respondent (since deceased), the second respondent, and the husband of the third respondent instituted eight suits for possession of agricultural land by way of redemption before the Sub-Judge, 1st Class, Palwal, District Gurgaon. They claimed title as successors-in-interest of Durga Devi through the adoption of their father, Charan Singh, by Rattan Singh. The defendants (now appellants) denied the adoption.
The trial court upheld the adoption, decreeing two of the eight suits and dismissing six. On appeal, the District Judge allowed the six dismissed suits. The defendants then filed six Regular Second Appeals (RSAs) in the High Court of Punjab and Haryana.
During the pendency of the RSAs, one appellant, Shiv Lal, died. As his legal representatives were not substituted, the High Court held that his appeal abated under Order 22 of the Code of Civil Procedure. Because the question of adoption was common and indivisible across all six RSAs, the High Court dismissed the remaining appeals as abated to avoid the possibility of conflicting decrees. The present civil appeals challenge that order.
Legal Issues Presented
- Whether the High Court erred in holding that the death of one appellant in a group of connected Regular Second Appeals caused abatement of all the appeals.
- Whether Order 22 Rule 4 CPC permits the surviving appellants to pursue the appeals independently when the decree is based on a common, indivisible issue.
Arguments of the Parties
Appellants' Arguments
- The High Court incorrectly dismissed all RSAs merely because the legal representatives of one deceased appellant were not brought on record.
- Order 22 Rule 4 CPC does not mandate abatement of the entire set of appeals; only the appeal of the deceased party should abate.
- Reliance placed on Balwant Singh v. Daulat Singh (1997) 7 SCC 137, where the Supreme Court allowed the appeal to proceed on the ground that the decree was divisible.
Respondents' Arguments
- The High Court correctly applied the principle that where a common and indivisible issue underlies all appeals, failure to substitute legal representatives of one appellant leads to abatement of all appeals.
- Relied on State of Punjab v. Nathu Ram, AIR 1962 SC 89, and Sri Chand v. Jagdish Pershad Kishan Chand, AIR 1966 SC 1427, which hold that an appeal involving a common ground cannot proceed piecemeal after partial abatement.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Punjab v. Nathu Ram AIR 1962 SC 89; (1962) 2 SCR 636 |
Test for when an appeal wholly abates upon death of a party where the decree is common and indivisible. | Followed. The Court applied the Nathu Ram test to uphold complete abatement. |
| Sri Chand v. Jagdish Pershad Kishan Chand AIR 1966 SC 1427; (1966) 3 SCR 451 |
Reaffirmation that an appeal cannot proceed for surviving parties when a deceased party’s share is inseparable. | Followed as parallel authority supporting abatement of all RSAs. |
| Rameshwar Prasad v. Shambehari Lal Jagannath AIR 1963 SC 1901; (1964) 3 SCR 549 |
Limits the power of an appellate court under Order 41 Rule 4 CPC when part of the appeal has abated. | Cited to refute appellants’ reliance on Order 41 Rule 4; reinforced that the appeals could not continue. |
| Balwant Singh v. Daulat Singh (1997) 7 SCC 137; JT 1997 (5) SC 703 |
Permits continuation of appeal where the decree is divisible despite death of a party. | Distinguished. The Court held the present decrees were not divisible, so Balwant Singh was inapplicable. |
Court's Reasoning and Analysis
The Supreme Court observed that the central issue in all six RSAs was the validity of Charan Singh’s adoption, an issue common and decisive for every appellant. Applying the tests articulated in Nathu Ram, the Court reasoned that:
- Proceeding with the remaining appeals could create conflicting decrees—one final against Shiv Lal (owing to abatement) and others potentially in favour of surviving appellants.
- The appellants could not have sought effective relief against the respondents without Shiv Lal’s participation, making the decree against surviving appellants ineffective if the appeal succeeded.
- Order 41 Rule 4 CPC could not be invoked because, per Rameshwar Prasad, an appellate court lacks power to grant relief to all defendants when the appeal abates as to one.
The Court further held that Balwant Singh was distinguishable because that case involved a divisible decree, whereas the present decree was based on an indivisible, common issue. Consequently, the High Court rightly dismissed all RSAs as abated.
Holding and Implications
The appeals are dismissed; the High Court’s order dismissing all RSAs as abated is affirmed.
Direct Impact: The appellants obtain no relief, and the decrees in favour of the plaintiff-respondents stand. The interlocutory applications are disposed of with no order as to costs.
Broader Implication: The judgment reasserts that where a decree rests on a common, indivisible issue, failure to substitute the legal representatives of a deceased party results in abatement of the entire appeal set, preventing contradictory outcomes. No new legal doctrine is created, but existing precedent is reinforced.
1. In all these appeals, the common question that arises for consideration is whether the High Court of Punjab and Haryana was right in dismissing the regular second appeals as abated on account of the death of one of the appellants.
2. Brief facts leading to the filing of these appeals are as under:
The first respondent herein (since deceased), the second respondent and the husband of the third respondent (hereinafter referred to as “the plaintiff-respondents” for convenience) filed eight suits for possession of the suit land by way of redemption in the Court of the Sub-Judge, 1st Class, Palwal, District Gurgaon. The appellants contested the suits contending, inter alia, that the plaintiff-respondents were not the successors-in-interest of the deceased Durga Devi, to whom the suit land originally belonged. It was claimed by the plaintiff-respondents that their father, Charan Singh, was adopted by one Rattan Singh, who was, admittedly, entitled to succeed along with the appellants on the death of Durga Devi. The adoption was disputed by the contesting defendants (the appellants herein) in the suits. However, the trial court as well as the appellate court held that the adoption was true and binding on the defendants. As a matter of fact, the trial court decreed two suits out of eight suits and dismissed the other six suits. The reasons for dismissal need not detain us. Against the dismissal of six suits, the plaintiff-respondents preferred six appeals before the District Judge, Gurgaon, and the learned District Judge allowed their appeals. Against the judgment of the learned District Judge, the aforesaid RSAs were preferred.
3. As pointed out earlier, the High Court dismissed the appeals on the ground that the legal representatives of one Shiv Lal, one of the appellants before it, was not brought on record and, therefore, the appeal filed by Shiv Lal stood abated. As a result of abatement of Shiv Lal's appeal, according to the High Court, the other appeals also stood abated. Because of the common issue regarding the adoption of the plaintiff's predecessor-in-interest, there cannot be two conflicting decrees. In other words, the adoption issue was common and decisive in all the appeals pending before the High Court and dismissing one appeal alone on the ground of abatement and allowing the other appeals to proceed on merits might end in conflicting decrees in case the other appeals are accepted on merits.
4. Mr Nambiar, learned Senior Counsel for the appellants submitted that the High Court was not right in dismissing the connected appeals on the ground that the legal representatives of one of the deceased appellants in one RSA were not brought on record. According to the learned counsel, the decision of the High Court was against the provision of Order 22 Rule 4 of the Code of Civil Procedure. In support thereof, he placed reliance on a judgment of this Court in Balwant Singh v. Daulat Singh (1997) 7 SCC 137, JT (1997) 5 SC 703.
5. On the other hand, learned counsel appearing for the respondents submitted that the High Court was right in holding that on account of a common issue in all the appeals, the death of one of the appellants in one RSA resulting in abatement of that appeal, will also result in abatement of other appeals. In support of his contention, he placed reliance on two judgments of this Court in State of Punjab v. Nathu Ram AIR 1962 SC 89, (1962) 2 SCR 636 and Sri Chand v. Jagdish Pershad Kishan Chand AIR 1966 SC 1427, (1966) 3 SCR 451.
6. We have considered the rival submissions and we are of the view that the High Court was right in coming to the conclusion that the decree was based on a common issue against the appellants in all the six RSAs and the failure to bring the legal representatives of one of the deceased appellants in one RSA will result in abatement of other appeals. Otherwise, there will be conflicting decrees in the event of other RSAs being allowed on merits, which cannot be allowed.
7. We have noticed earlier that the common issue for consideration in all the appeals before the High Court was whether the claim of the plaintiff-respondents for possession of the suit land on the basis of adoption was sustainable. The courts below having found the adoption in favour of the plaintiffs, the consequence will be that the issue of adoption in respect of Shiv Lal's appeal would become final in that RSA, resulting in the abatement of that RSA as well as other RS appeals to avoid conflicting decrees.
8. This Court in Nathu Ram case AIR 1962 SC 89, (1962) 2 SCR 636 laid down the following test:
“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 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 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.”
9. In Sri Chand case AIR 1966 SC 1427, (1966) 3 SCR 451 this Court again reiterated the same view by observing as follows:
“Counsel for the first respondent contended that the appeal had abated in its entirety because the heirs of Basant Lal had not been brought on record, and the ground on which the judgment of the High Court proceeded was common to all the sureties. In our view, this objection must be upheld. The appeal of Basant Lal has abated since the legal representatives to his estate have not been impleaded, and the record of the appeal is defective. That is not denied by the appellants. But it is urged that this Court is competent to set aside an order of the High Court in its entirety on the ground that it is not sustainable in law and in any event to set aside the order insofar as it affects the claim of Appellants 1 and 3 and the third respondent. Support was sought to be derived for the first contention from Order 41 Rule 4 of the Code of Civil Procedure and it was urged that even if the decree be assumed to have proceeded on a ground common to all the sureties, it is open to any one or more of the sureties to appeal from the order and the appellate court may reverse or vary the decree in favour of all the sureties. This plea stands refuted by the judgment of this Court in Rameshwar Prasad v. Shambehari Lal Jagannath AIR 1963 SC 1901, (1964) 3 SCR 549. It was held by this Court in Rameshwar Prasad case AIR 1963 SC 1901, (1964) 3 SCR 549 that an appellate court has no power to proceed with an appeal and to reverse and vary the decree in favour of all 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.”
10. In the light of the decisions of this Court and in view of the facts of these cases, there cannot be any doubt that the High Court was perfectly right in dismissing all the appeals as abated.
11. The decision cited by the learned counsel for the appellants is distinguishable on facts. In that case, the Court has given a finding of fact that the decree was divisible. Therefore, that judgment will have no application to the facts of the present cases.
12. In the circumstances, the appeals fail and are accordingly dismissed with no order as to costs.
13. In view of the above, all the IAs will stand disposed of accordingly.
Alert