Appeal against an order holding the entire title appeal abated for non-substitution of the legal heirs of deceased co-sharers in a partition suit. The High Court held every co-sharer a necessary party, the partition decree joint and indivisible, and that Order XXII Rule 4(4) CPC was unavailable without an exemption order. Appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 19 of 2005
Versus
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24.(a) Muzzaffar Khan (b) Munouvar Khan (c) Ajmun Nisa (d) Mehrunisa (e) Tehrun Nisa (f) Sahiban Bibi 25.(a) Shaida Bibi 26.Md. Samim Khan 27.Naziba Bibi 28.Raju 29.Bhughi 30.Md. Sashim Khan 31. Salika Bibi 32.(a) Isteyaq Ahmad Khan (b) Iftekhar Khan (c) Johan Ara Ahmad (d) Gul Nigar Ara (e) Anjum Ara Khatoon (f) Gulshan Ara (g) Shabnam Ara 33.Kimerbani Bibi 34.Jarif Khan 35.Rauf Khan 36.Nagina Bibi 37.Mangri Bibi 38.Wazida Bibi 39.Asmulukhtara Bibi 40.Sahida Bibi 41.Noor Alam 42.Hasima Bibi 43.Baitul Khatoon 44.(i) Mr. Sauquat Khan (deleted v/o dated 22.06.2009) (ii) Mr. Tauhid Khan (iii) Mr. Tanuj Khan (iv) Miss Buna 45.Kabil Khan 46.Hasina Bibi 47.Bacho Bibi … … Respondents --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --For the Appellants : Mr. Rajiv Ranjan Tiwary, Advocate For the Resp. Nos. 2, 3, 4 & 39 : Mr. Ayush Aditya, Advocate
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
--- 25 /22.01.2019 Heard Mr. Rajiv Ranjan Tiwary, counsel appearing for the appellants.
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2. Heard Mr. Ayush Aditya, counsel appearing for the respondent nos. 2, 3, 4 & 39.
3. This appeal has been filed against the order dated 27.01.2005 passed in Title Appeal No. 15 of 2003 by the learned Additional District Judge, Fast Track Court-II, Garhwa, whereby, on one hand, the appellants’ petition for substitution of the legal heirs of respondent nos. 21(Abbas Khan), 5(Asgar Khan) and one of the substituted heirs of original respondent no. 8 (Nasim Khan) and setting aside abatement, if any, has been dismissed and on the other hand, the learned court below has held that the appeal stands abated in its entirety.
ARGUMENTS OF THE APPELLANTS
4. Counsel for the appellants submits as under:-
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mentioned in the petition for substitution were wholly incorrect. However, during the course of argument, he submits that the learned lower appellate court has erred in law by holding that the entire appeal has abated.
d. While further arguing, counsel for the appellants submits that the said persons, whose petition for substitution was filed, never appeared in the partition suit and they never filed any written statement. Accordingly, he refers to Order XXII Rule 4(4) of Code of Civil Procedure, 1908, and submits that as per this provision, whenever the court thinks fit, it may exempt the plaintiff from necessity of substituting the legal representatives of any defendant who has failed to file written statement or who, having filed it, has failed to appear and contest the suit at the hearing and the judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have same force and effect as if it has been pronounced before the death took place. The counsel for the appellants submit that in view of this specific provision, non-substitution of the deceased persons before the lower appellate court was not fatal to the litigation and the court still should have proceeded for taking up the appeal on merits.
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consideration and accordingly, the impugned order is perverse and is fit to be set-aside.
ARGUMENTS OF THE RESPONDENTS
5. Counsel for the respondents, on the other hand, submits as under:-
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Further, applying the same principle, the entire appeal before this Court has also abated on account of nonsubstitution of respondent no. 43.
V. Counsel further submits that in another judgment passed by Hon’ble Jammu and Kashmir High Court (Mst. Jani and Ors. Vs. Hassan Sofi and Ors.) reported in MANV/JK/0038/1972 in the matter of partition suit, the aforesaid judgment passed by Hon’ble Supreme Court reported in AIR 1962 SC 89 has been followed. Further following the judgment passed by Hon’ble Patna High Court reported in AIR 1935 PATNA 241 (Chinaman Mahto Vs. Bhatu Mahto) and other judgments of other High Courts, the Hon’ble Jammu and Kashmir High Court has held that in partition suit of a joint holding every co-sharer has a joint and individual interest in every inch of it and each of the co-sharer is a necessary party to the suit. In the absence of anyone of the co-sharer and in case of his death, of his legal representatives, it is not possible to determine effectively the rights and interests of the remaining co-sharers who are before the court and grant necessary relief to the plaintiff because the representation becomes incomplete. He submits that in the said judgment, it has been held that in such case, the suit abates as a whole.
VI. He submits that as the instant case arises out of a partition suit and the respondent nos. 21(Abbas Khan), 5(Asgar Khan) and one of the substituted heirs of original respondent no. 8 (Nasim Khan), were not substituted before the lower appellate court and respondent no. 43 has not been substituted before this Court, therefore, not only the appeal before the lower appellate court had abated, but the instant miscellaneous appeal has also abated and no relief can be granted to the appellants.
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6. After hearing the counsel for the parties and after considering the materials on record, this Court finds as follows:-
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appeal, respondent nos. 21(Abbas Khan), 5(Asgar Khan) and one of the substituted heirs of original respondent no. 8 (Nasim Khan) had expired. A petition for substitution was filed on 31.03.2003 giving the dates of death as 15.01.2003, 27.01.2003 and 18.02.2003 respectively. In the rejoinder, the year of death of said respondents were mentioned as 1992, 1999, 1995 respectively. Thereafter, the appellants filed petition for condonation of delay and for setting-aside abatement which were rejected in the impugned order and entire appeal was treated as abated. During the course of proceedings before this Court, the counsel for the appellants has submitted that so far as the rejection of substitution is concerned, they are not aggrieved, but the learned lower appellate court has further, by the impugned order, wrongly treated the entire appeal as abated.
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to be determined and hence the appeal could not have been treated as abated.
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abatement of the entire proceedings has been considered in para 4 to 8 which is quoted as follows:-
“4. It is not disputed that in view of Order 22 Rule 4 Civil Procedure Code, hereinafter called the Code, the appeal abated against Labhu Ram, deceased, when no application for bringing on record his legal representatives had been made within the time limited by law. The Code does not provide for the abatement of the appeal against the other respondents. Courts have held that in certain circumstances, the appeals against the corespondents would also abate as a result of the abatement of the appeal against the deceased respondent. They have not been always agreed with respect to the result of the particular circumstances of a case and there has been, consequently, divergence of opinion in the application of the principle. It will serve no useful purpose to consider the cases. Suffice it to say that when Order 22 Rule 4 does not provide for the abatement of the appeals against the co-respondents of the deceased respondent there can be no question of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances, is not a correct statement. Of course, the appeals against them cannot proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal.
5. The same conclusion is to be drawn from the provisions of Order 1 Rule 9 of the Code which provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. It follows, therefore, that if the court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. It is only when it is not possible for the court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it.
6. The question whether a court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated 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 be said to be properly constituted or can be said to have all the necessary parties for the decision of the
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controversy before the court. 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.
7. There has been no divergence between the courts about the court’s proceeding with the appeal between the respondents other than the deceased respondent, when the decree in appeal was not a joint decree in favour of all the respondents. The abatement of the appeal against the deceased respondent, in such a case, would make the decree in his favour alone final, and this can, in no circumstances, have a repercussion on the decision of the controversy between the appellant and the other decreeholders or on the execution of the ultimate decree between them.
8. The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent. Different views exist in the case of joint decrees in favour of respondents whose rights in the subject-matter of the decree are specified. One view is that in such cases, the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents can be suitably dealt with by the appellate court. We do not consider this view correct. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree-holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased
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respondent, the appellate court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the court will do is one to which exception can or cannot be taken.”
“12. In State of Punjab v. Nathu Ram while interpreting the provisions of Order 22 Rule 4(3) CPC read with Rule 11 thereof, this Court observed that an appeal abates as against the deceased respondents where within the time limited by law no application is made to bring his heirs or legal representatives on record. However, whether the appeal stands abated against the other respondents also, would depend upon the facts of a case.
13. In Sri Chand v. Jagdish Pershad Kishan Chand this Court held that in case one of the respondents dies and the application for substitution of his heirs or legal representatives is not filed within the limitation prescribed by law, the appeal may abate as a whole in certain circumstances and one of them could be that when the success of the appeal may lead to the courts coming to a decision which may be in conflict with the decision between the appellant and the deceased respondent and, therefore, it will lead to the court passing a decree which may be contradictory and inconsistent to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent in the same case.
14 . In Ramagya Prasad Gupta v. Murli Prasad this Court examined the same issue in a case of dissolution of a partnership firm and accounts and placed reliance upon two judgments referred to immediately hereinabove and held as under:
“16. … The 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 may be in conflict with the decision between the appellant and the deceased respondent and, therefore, it 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 subjectmatter 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)
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when the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed. These three tests … are not cumulative tests. Even if one of them is satisfied, the court may dismiss the appeal.” (emphasis added) 15. In Sardar Amarjit Singh Kalra v. Pramod Gupta a Constitution Bench of this Court, while dealing with the similar issue, has after considering a large number of judgments of this Court, reached the following conclusion:
“21. … (a) In case of ‘joint and indivisible decree’, ‘joint and unseverable or inseparable decree’, the abatement of proceedings in relation to one or more of the appellant(s) or respondent(s) on account of omission or lapse and failure to bring on record his or their legal representatives in time would prove fatal to the entire appeal and require to be dismissed in toto as otherwise inconsistent or contradictory decrees would result and proper reliefs could not be granted, conflicting with the one which had already become final with respect to the same subject-matter vis-à-vis the others; (b) the question as to whether the court can deal with an appeal after it abates against one or the other would depend upon the facts of each case and no exhaustive statement or analysis could be made about all such circumstances wherein it would or would not be possible to proceed with the appeal, despite abatement, partially; (c) existence of a joint right as distinguished from tenancy-in-common alone is not the criterion but the joint character of the decree, dehors the relationship of the parties inter se and the frame of the appeal, will take colour from the nature of the decree challenged; (d) where the dispute between two groups of parties centred around claims or was based on grounds common relating to the respective groups litigating as distinct groups or bodies—the issue involved for consideration in such class of cases would be one and indivisible; and (e) when the issues involved in more than one appeal dealt with as a group or batch of appeals, are common and identical in all such cases, abatement of one or the other of the connected appeals due to the death of one or more of the parties and failure to bring on record the legal representatives of the deceased parties, would result in the abatement of all appeals.”
The Court further observed that any relief granted and the decree ultimately passed, would become totally unenforceable and mutually self-destructive and unworkable vis-à-vis the other part, which had become final. The appeal has to be declared abated in toto. It is the duty of the court to preserve and protect the rights of the parties.
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16. In Shahazada Bi v. Halimabi this Court considered the same issue and held as under:
“9. … That, so far as the statute is concerned, the appeal abates only qua the deceased respondent, but the question whether the partial abatement leads to an abatement of the appeal in its entirety depends upon general principles. If the case is of such a nature that the absence of the legal representative of the deceased respondent prevents the court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject-matter. The court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the court has no alternative but to dismiss the appeal as a whole. If, on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the court should not hear the appeal and adjudicate upon the dispute between the parties.”
17. Therefore, the law on the issue stands crystallised to the effect that as to whether non-substitution of LRs of the respondent-defendants would abate the appeal in toto or only qua the deceased respondent-defendants, depends upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not interdependent upon one or the other, nor the parties have conflicting interests inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject-matter in the same suit. Thus, whether the judgment/decree passed in the proceedings vis-à-vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test.
18. The instant case requires to be examined in view of the aforesaid settled legal propositions. Every co-owner has a right to possession and enjoyment of each and every part of the property equal to that of other co-owners. Therefore, in theory, every co-owner has an interest in every infinitesimal portion of the subject-matter, each has a right irrespective of the quantity of its interest, to be in possession of every part and parcel of the property jointly
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with others. A co-owner of a property owns every part of the composite property along with others and he cannot be held to be a fractional owner of the property unless partition takes place.”
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any written statement. Para 11 of the said judgement is quoted for ready reference:-
“ 11. The provisions of Order 22 Rule 4(4) CPC provide that in case, the deceased defendant did not contest the suit and did not file a counter-affidavit, the substitution may not be warranted. In the instant case, the High Court repelled the submission regarding application of Order 22 Rule 4(4) CPC on the ground that the said provision requires the presentation of an application before the Court, before it pronounces its judgment for seeking such a relief and once such an application is allowed, in that case, it can only be taken against the said defendant notwithstanding the death of such defendant and such a decree shall have the same force and effect as if it was pronounced before the death had taken place. This view stands fortified by the judgments of this Court in Zahirul Islam v. Mohd. Usman and T. Gnanavel v. T.S. Kanagaraj. Thus, it has rightly been held by the High Court that the provisions of Order 22 Rule 4(4) CPC were not attracted in the facts of this case.”
Similar view has been taken in the judgement passed by Hon’ble Supreme court, reported in (2003) 1 SCC 476 ( Zahirul Islam versus Mohd. Usman and others) para 6 and 7 to submit that in order to avail benefits of the provisions of Order XXII Rule 4(4) C.P.C., an order has to be obtained from the Court exempting the plaintiff from bringing on record the legal representatives of such person.
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7. As a cumulative effect of the aforesaid findings, this appeal is hereby dismissed.
(Anubha Rawat Choudhary, J.)
Pankaj
3 issues framed by the court
Whether the lower appellate court was justified in treating the entire title appeal as abated for non-substitution of some deceased respondents.
Whether this appeal is also abated as a whole on account of non-substitution of respondent no. 43.
Whether the appellants were entitled to the benefit of Order XXII Rule 4(4) CPC absent an order exempting them from substituting legal representatives.
Colour shows how this judgement treated each authority
State of Punjab Vs. Nathu RamApplied¶6
AIR 1962 SC 89 · Who else cites this
Churaman Mahto versus Bhatu MahtoApplied¶6
AIR 1935 PATNA 241 · Who else cites this
Mst. Jani and Ors. Vs. Hassan Sofi and Ors.Referred¶6
MANU/JK/0038/1972
Budh Ram and Ors. Vs. Bansi and Ors.Applied¶6
(2010) 11 SCC 476 · Who else cites this
Zahirul Islam versus Mohd. Usman and othersRelied on¶6
(2003) 1 SCC 476 · Who else cites this
2 provisions across 1 enactments
Kalam Uddin Khan
Kalimuddin Khan
Noorasha Bibi
Salda Bibi
Sallauddin Khan
Nasimuddin Khan
Anubha Rawat Choudhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
