Court should dismiss appeal in entirety if there is death of some of defendants?
SUPREME COURT OF INDIA
SUNKARA LAKSHMINARASAMMA (D) BY LRs. ..APPELLANTS
SAGI SUBBA RAJU & OTHERS ETC. ..RESPONDENTS
J U D G M E N T MOHAN M. SHANTANAGOUDAR, J.
These appeals are directed against the common judgment in
Letters Patent Appeal No. 323 of 1992 and Appeal Nos. 2959 and
2960 of 2001 dated 11 September, 2003
passed by the High Court of
Judicature of Andhra Pradesh at Hyderabad.
appellants herein were the plaintiffs in O.S. No. 98 of 1984 on the
file of the Subordinate Judge, Bhimavaram
No.124/1980), and O.S. No. 97 of 1984 on the file of the Subordinate Judge, Bhimavaram (formerly O.P. No.10/1982). They were the defendants in O.S. No. 72 of 1983 on the file of the Subordinate Judge, Bhimavaram (formerly O.P. No.32/1978 on the file of the Subordinate Judge, Narsapur).
2. O.S. No. 98 of 1984 was filed for partition of Schedule A property against Defendant Nos. 5 to 25. In this suit, only one alienation made by Veeraswamy (the plaintiff Lakshminarasamma’s son) was assailed, though Veeraswamy had alienated various other properties through different sale deeds falling under Schedule A. O.S. No. 97 of 1984 was filed for partition of Schedule A and B properties as well as for eviction of Defendant Nos. 26 to 125 and 127 from the said properties. O.S. No. 72 of 1983 was filed by one Sagi Subba Raju (one of the respondents in these appeals) for specific performance of an agreement of sale dated 19.09.1974 executed by the late Veeraswamy covering an extent of 3 acres 56 cents in Revenue Survey Nos. 347 and 347/3 of Bhimavaram village.
O.S. Nos. 97 of 1984 and
98 of 1984 (for partition of
Schedule A and B properties) were dismissed by the trial Court
and confirmed by the first appellate Court. O.S. No. 72 of 1983
(suit for specific performance) was decreed partly, directing sale of 1/3rd of the property in favour of the plaintiff Sagi Subba Raju, and such decree was confirmed by the first appellate Court. Feeling aggrieved by these judgments and decrees, the unsuccessful appellants filed appeals before the High Court. So also, Sagi Subba Raju, who was to get 1/3rd of the property in the suit for specific performance filed L.P.A. No. 323 of 1992 before the High Court. All these appeals were heard together by the High Court and decided against the appellants herein, which means that the judgments and decrees of dismissal passed in O.S. Nos. 97 & 98 of 1984 were confirmed by the Division Bench of the High Court also. Thus, there are concurrent findings of three Courts in respect of those two suits filed by appellants for partition against the appellants herein. In respect of O.S. No. 72 of 1983 also, the Division Bench proceeded to grant a decree, as prayed for, in favour of Sagi Subba Raju and against the appellants herein. In other words, the suit for specific performance also was decreed fully against the appellants herein. Hence, the appellants are before this Court.
Shri A. Subba Rao, learned advocate appearing on behalf of
the appellants, taking us through the
material on record,
submits that the Courts below were not justified in concluding that the bequests (Wills) relied upon by the defendants, i.e. Will dated 14.08.1932 (Exhibit B4/Ex.P1) in respect of Schedule A property and the Will dated 05.10.1968 (Exhibit B106/Ex. P2) in respect of Schedule B property executed for the benefit of Veeraswamy, were proved; that the plaintiffs have got 2/3 rd share in the suit properties and therefore the bequests (Exhibits B4 and B106) will not confer any right to the beneficiary in excess of remaining 1/3rd of the properties. Lastly, he submitted that the Defendant Nos. 5 to 125 & 127, being the purchasers of the properties from Veeraswamy (in whose favour the Wills were executed), are liable to be evicted inasmuch as Veeraswamy did not have any right, title or interest over the suit properties to the full extent, on the other hand, Veeraswamy had only 1/3 rd share in the suit properties.
4. Per contra, learned counsel
appearing on behalf of the
respondents contends that the judgment of the Division Bench of
the High Court is just and proper and needs no interference. The
trial Court, the first appellate Court and the Division Bench of
the High Court have held that Exhibit B4 and Exhibit B106 are
proved in accordance with law and
became the owner of the property from the said Wills. He further submitted that the defendants/purchasers have been in peaceful possession of the suit properties for more than 40 to 50 years and some of the defendants have even alienated the properties to third parties. Lastly, he submitted that the appeals are not maintainable since a number of defendants (purchasers from Veeraswamy) were deleted from the array of parties by the appellants herein, and some of the defendants have died during the pendency of the suits as well as the first appeals and second appeals and their legal representatives were not brought on record by the appellants herein. Even before this Court, some of the defendants/respondents have expired. The appellants have not bothered to bring on record the legal representatives of such deceased defendants. As a result, the decree passed in favour of the deceased and deleted defendants holding that Veeraswamy had the right to sell the property has attained finality, and consequently the sales made in favour of such defendants have attained finality too. In other words, the validity of the Wills as well as that of the sale deeds stands confirmed in respect of the deceased/deleted defendants and therefore these appeals, which are pending consideration in respect of other defendants before
this Court, are liable to be dismissed in view of the fact that in case any order is passed adverse to the interest of the respondents herein/remaining defendants, the same would be conflicting with the judgments and decrees which are already confirmed as against the deceased/deleted defendants.
Exhibit B4, the Will dated 14.08.1932, pertains to Schedule
A property. The said Will was
executed by Sunkara Padmanabhudu, who was admittedly the owner of the Schedule A
properties. He had no issue. His wife also expired shortly after
his death. The beneficiary under the said Will was Veeraswamy,
who is none other than the grandson
of Sunkara Venkataramaiah (the brother of
Exhibit B106, the Will dated 05.10.1968 pertains to Schedule B
property. The said Will was executed by Laxmipathi (the father of
Veeraswamy) in favour of his son
Padmanabhudu expired on 20.08.1932 and Laxmipathi died on
21.01.1969. Thus, Veeraswamy became the owner of Schedule A
and B properties, after the demise of
Sunkara Padmanabhudu and Laxmipathi. There
is nothing on record to show
properties in Schedule B were the joint properties of Laxmipathi
and his son.
So also, it is not established by the plaintiffs that
Schedule B properties were available for partition. There are concurrent findings of three Courts on the said point against the appellants/plaintiffs in partition suits. The plaintiff Laxminarasamma is the second wife of Laxmipathi, who has not specifically questioned the alienations made by her son Veeraswamy in favour of Defendant Nos. 5 to 125 by filing O.S. Nos. 97 & 98 of 1984. There is no prayer by her for getting the sale deeds cancelled. All the three Courts concurrently on facts have concluded that both the Wills are proved. Even before us, the findings of the validity of the Wills etc. have not been seriously disputed by the appellants. Even otherwise, on going through the judgments of the three Courts, we find that the reasons assigned and the conclusions arrived at in respect of proof of both the Wills are just and proper. Hence, no interference is called for.
Since Veeraswamy was the sole owner of the properties by
virtue of Exhibits B4 and B106 Wills, naturally he had the right
to alienate the properties. Defendant Nos. 5 to 125 and 127 had
purchased the properties for valuable
Veeraswamy. As mentioned supra, the alienations made in favour
of these defendants/purchasers were not
questioned by the
appellants in the aforementioned two suits for partition. Be that as it may, since we find that the Courts below are justified in concluding that the sales made in favour of Defendant Nos. 5 to 125 and 127 are just and proper and as they are bona fide purchasers for valuable consideration, no interference is called for.
Shri A. Subba Rao, learned counsel for the appellants was
however forceful in his arguments, insofar as the suit for specific
performance is concerned. According to
him, the appellants
herein (defendants in the suit for specific performance) would be
put to hardship if the decree for
specific performance is
confirmed, inasmuch as there has been a huge escalation in the
price of the properties since the agreement of sale. Such plea of
escalation in price cannot be accepted in view of the fact that the
appellants in the first instance do not have the right to question
the agreement of sale.
As mentioned supra, since Veeraswamy
was the absolute owner of the properties including the property
involved in the suit for specific performance, he had the right to
enter into an agreement of sale also.
This property was bequeathed to
Veeraswamy under Exhibit B4 Will by
Hence, Veeraswamy was the sole owner of the
property. Consequently, he had entered into an agreement of sale with Sagi Subba Raju, as far back as on 19.09.1974. The suit was filed in the year 1978, which was later transferred to another Court and the same was renumbered as O.S. No. 72 of 1983. Since 1978, this litigation is being fought by the prospective vendee. The property of about three and half acres was agreed to be sold by Veeraswamy in favour of the prospective vendee in the year 1974 for a sum of Rs.51,000/. Such price was agreed to between the vendor as well as the prospective vendee. This Court cannot imagine the value of the property as it stood in the year 1974 in the said area, i.e. at Bhimavaram village in Andhra Pradesh. Be that as it may, we find that hardship was neither pleaded nor proved by the appellants herein before the trial Court. No issue was raised relating to hardship before the trial Court. A plea which was not urged before the trial Court cannot be allowed to be raised for the first time before the appellate Courts. Moreover, mere escalation of price is no ground for interference at this stage (see the judgment of this Court in the case of Narinderjit Singh vs. North Star Estate Promoters Limited, (2012) 5 SCC 712). Added to it, as mentioned supra, the appellants do not have the locus standi to question the judgment
of the Division Bench since they are not the owners of the property. As a matter of fact, Veeraswamy, the vendor of the properties, had entered the witness box before the trial Court and supported all his alienations in favour of the defendants. Therefore, in our considered opinion, the Division Bench has rightly concluded in favour of Sagi Subba Raju and against the appellants and granted the decree for specific performance.
8. In any event, Shri Thomas P.
Joseph, learned senior advocate appearing on
behalf of the respondents is justified in
contending that these appeals are not
maintainable since a number of defendants against whom the relief is sought/claimed
have either been deleted from the array of parties, or are dead.
The legal representatives of such deceased defendants have not
been brought on record. Even before
this Court, Respondent No.7 (D8), Respondent
No.8 (D9), Respondent No.9 (D10) and
Respondent No.11 (D13) in Civil Appeal No. 4382/2016 @ SLP(C)
No. 20376/2004 have died. Their legal representatives have also
not been brought on record. It is relevant to note here itself that
Defendant Nos. 4, 6, 36, 50, 54, 58, 67, 69, 73, 77, 82, 92, 93,
113, 120 and 127 expired during the
pendency of the matter
before the trial Court in O.S. No. 97 of 1984. So also, Defendant
Nos. 20, 53, 64 and 118 have also died and their legal representatives have also not been brought on record.
Order 22 Rule 4, CPC lays down that where within the time
limited by law, no application is
made to implead the legal representatives of a deceased defendant, the suit shall abate as
against a deceased defendant. This rule does not provide that by
the omission to implead the legal representative of a defendant,
the suit will abate as a whole.
If the interests of the co
defendants are separate, as in the case of coowners, the suit will
abate only as regards the particular
interest of the deceased
party. In such a situation, the question of the abatement of the
appeal in its entirety that has arisen in this case depends upon
general principles. If the case is
of such a nature that the
absence of the legal representatives 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. In the matter on hand, the absence of certain defendants who have been deleted from the array of parties along with the absence of legal representatives of a number of deceased defendants will prevent the court from hearing the appeals as against the other defendants. We say so because in the event of these appeals being allowed as against the remaining defendants, there would be two contradictory decrees in the same suit in respect of the same subject matter. One decree would be in favour of the defendants who are deleted or dead and whose legal representatives have not been brought on record; while the other decree would be against the defendants who are still on record in respect of the same subject matter. The subject matter in the suit is the validity of the two Wills. The Courts including the Division Bench of the High Court have consistently held that the
two Wills are proved, and thus Veeraswamy being the beneficiary under the two Wills had become the absolute owner of the suit properties in question. Such decree has attained finality in favour of the defendants who are either deleted or dead and whose legal representatives have not been brought on record. In case these appeals are allowed in respect of the other defendants, the decree to be passed by this Court in these appeals would definitely conflict with the decree already passed in favour of the other defendants. As mentioned supra, the Court cannot be called upon to make two inconsistent decrees about the same subject matter. In order to avoid conflicting decrees, the Court has no alternative but to dismiss the appeals in their entirety (see the judgment of this Court in the case of Shahazada Bi vs. Halimabi, (2004) 7 SCC 354).
10. In view of the above, the appeals fail not only on the ground of nonmaintainability, but also on merits, and are dismissed.