Bombay High Court
Vitthal Ashruba Davkar And Others vs Vasant Ashruba Davkar And Others on 7 December, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.7538 OF 2021
IN SA/451/2017
VITTHAL S/O ASHRUBA DAVKAR AND OTHERS
VERSUS
VASANT S/O ASHRUBA DAVKAR AND OTHERS
.....
Advocate for Applicants : Mr. V. D. Salunke
Advocate for Respondents No.1, 3A, 3B and 3D. : Mr. H. V. Tungar
Advocate for Respondent No.3C : Mr. S. V. Natu,
.....
WITH
SECOND APPEAL NO.451 OF 2017
WITH
CIVIL APPLICATION NO.3208 OF 2021 IN SA/451/2017
WITH
CIVIL APPLICATION NO.8447 OF 2017 IN SA/451/2017
.....
CORAM : SMT.VIBHA KANKANWADI, J.
Date of Reserving the Order :
07-10-2021
Date of Pronouncing the Order :
07-12-2021
ORDER :
1. Present application has been filed for bringing the legal
representatives of deceased respondent No.3 on record and for setting
aside the abatement and to condone the delay of 3657 in filing this
application.
2. Present applicants are the original appellants. They contend that
2 CAs 7538-2021, 3208-2021, 8447-2017, SA 451-2017
respondent No.3/original plaintiff No.3 expired on 26-04-2011. He
used to reside at Ashti whereas the appellants used to reside at
Jalna. Original plaintiffs No.1 to 4 and defendant No.1 i.e. present
applicant No.1 are the real brothers. It was the case of the plaintiffs
that there was no partition in respect of the suit properties and,
therefore, they had filed suit for partition. Death of plaintiff
No.3/respondent No.3 was not intimated to the defendants as
mandatorily prescribed under Order 22 Rule 10-A of the Code of Civil
Procedure and no notice was given by the Court to the
defendants/appellants. The said respondent No.3 had expired when
the matter was before the First Appellate court itself. It is stated
that the applicants had not stated that they had no knowledge of
death of plaintiff No.3. Original defendant No.3 i.e. present
appellant No.3 had given the said knowledge to the Advocate
representing them before the First Appellate court, however, it was
told to them that since all the real brothers are on record, who are
also the legal representatives of plaintiff No.3, the Advocate told that
the appeal will not abate. Under this circumstance, the name of
plaintiff No.3's widow and sons could not be brought on record, and
the appeal continued in the name of rest of the persons. It was then
contended that for the first time in the second appeal, the point was
3 CAs 7538-2021, 3208-2021, 8447-2017, SA 451-2017
raised as on 06-04-2021 that the appeal has abated against
respondent No.3 and, therefore, the entire appeal should be
disposed of in toto as abates against all. Thereafter, the application
has been filed to remove the technicalities. It is then stated that
due to pandemic, it was difficult to get death certificate and some
delay has been caused. The delay is unintentional, substantial
questions of law are arising in the second appeal and, therefore, the
application deserves to be allowed.
3. The application has been resisted by the respondents by filing
affidavit-in-reply on behalf of respondent No.3A to 3D and it has
been specifically stated that the applicants/appellants had every
knowledge about death of respondent No.3. The applicants/
appellants cannot take shelter that notice under Order 22 Rule 10-A
of the Code of Civil Procedure has not been given. The real brother
had the knowledge about death of plaintiff No.3. In fact the appeal
before the District Court itself had resulted in abatement.
4. Heard learned Advocate Mr. V. D. Salunke for
applicants/appellants, learned Advocate Mr. S. V. Natu for
respondent No.3C, and learned Advocate Mr. H. V. Tungar for
Respondents No.1, 3A, 3B and 3D.
4 CAs 7538-2021, 3208-2021, 8447-2017, SA 451-2017
5. It has been vehemently submitted on behalf of the applicants
that since there was no compliance under Order 22 Rule 10-A of the
Code of Civil Procedure, the action was not taken by the applicants
before the First Appellate court. In fact, meaning of legal
representatives as defined in Section 2 (11) of the Code of Civil
Procedure is as under :-
"Legal representative means a person who in law
represents the estate of a deceased person, and
includes any person who intermeddles with the estate
of the deceased and where a party sues or is sued in
a representative character the person on whom the
estate devolves on the death of the party so suing or
sued."
The other brothers are on record who can represent the assets of
the deceased.
6. Per contra, it has been submitted on behalf of the respondents
that Civil Application No.3208 of 2021 has been filed under Order 41
Rule 27 of the Code of Civil Procedure for allowing the
applicants/appellants to produce documents by way of additional
evidence and thereby the applicants intend to bring certain
properties in to the hotch-pot. That application was filed on 01-03-
5 CAs 7538-2021, 3208-2021, 8447-2017, SA 451-2017
2021 wherein it was disclosed that the applicants came to know
about death of respondent No.3/plaintiff No.3 in February 2021
when wife of respondent No.3/plaintiff No.3 gave an application for
recording her name in the revenue record. In spite of the said fact,
the present application came to be filed on 29-07-2021. There is
absolutely no explanation as to why no action was taken from 01-
03-2021 to 29-07-2021. It is hard to believe that the brother would
not have come to know death of his real brother. In the application
itself, the applicants have stated that original defendant No.3, who is
the son of original defendant No.1, had given instructions to the
Advocate that one of the respondents has expired, but then the
Advocate expressed that since other brothers are on record, the
appeal will not abate. Applicants cannot take advantage of any such
wrong advice when they had the knowledge that the plaintiff No.3/
respondent No.3 was survived by wife and sons. In fact, the
applicants cannot take shelter of Order 22 Rule 10-A of the Code of
Civil Procedure in view of the fact that that provision has been made
to safeguard the interest of such appellants who will not be able to
know the fact of death of the respondent. Under that circumstance,
the duty is cast on the Advocate of the respondent to intimate it to
the Court about the said fact, thereupon the Court would issue
6 CAs 7538-2021, 3208-2021, 8447-2017, SA 451-2017
notice to the appellant. In fact, the appeal itself was filed almost a
dead person and, therefore, it should be dismissed as a whole.
7. The learned Advocate appearing for respondents No.3A to 3D
as well as respondent No.1 relied on the decision in, Budh Ram and
Others vs. Bansi and Others, reported in (2010) 11 Supreme Court
Cases 476, wherein it has been held that :-
"This depends upon the facts and circumstances of an
individual case. Where each one of the parties has
an independent and distinct right of his won, not
interdependent upon one or the other, nor the parties
have conflicting interest 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-a-vis remaining parties would suffer
the vice of being a contradictory or inconsistent
decree is the relevant test."
In this case, it has been held that the abatement takes place
automatically by application of law without any order of the Court.
7 CAs 7538-2021, 3208-2021, 8447-2017, SA 451-2017
Setting aside of abatement can be sought once the suit stands
abated. The abatement results in denial to hearing of the case on
merits and, therefore, it was further submitted that the First
Appellate Court ought not to have gone ahead with the hearing of
the appeal itself. As regards co-owners/joint ownership is
concerned, it has been observed that :-
"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. In theory, every co-
owner has an interest in every infnitesimal 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 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."
Further reliance has been placed on the decision in, Equbalbegum
w/o Sk. Ahmed and others vs. Abdul Rahim Fateh Mohammad and
others, reported in 2009 (2) Mh.L.J., 547, wherein it has been held
that :-
"In a partition decree when there is appeal and there
is death of one of the respondents, and in absence of
bringing the legal representatives on record of that
8 CAs 7538-2021, 3208-2021, 8447-2017, SA 451-2017
respondent, the entire appeal would abate. Passing
of the decree in favour of the appellants will be
contradictory to the decree, which has become fnal
with respect to the same subject matter between
them and deceased."
Further reliance has been placed on the decision in, Shanti Devi and
others vs. Kaushaliya Devi, reported in (2016) 16 Supreme Court
Cases 565, wherein it has been held that :-
"When there is delay of more than 11 years in filing
of application for condonation of delay, subsequent to
death of plaintiff, it was held that delay cannot be
condoned on insufficient grounds and by abusing
process of law."
8. At the outset, it is to be noted that the relationship
between the parties is not denied. Original plaintiffs No.1 to 4
and defendant No.1 were the real brothers. Special Civil Suit
No.81 of 2007 was filed by the plaintiffs before Civil Judge,
Senior Division, Beed for partition and separate possession, and
it came to be decreed on 24-03-2009. The said decree was
challenged by the present appellants/applicants i.e. original
defendants who are the father and sons inter se by filing Regular
Civil Appeal No.86 of 2009. Learned District Judge-5, Beed
9 CAs 7538-2021, 3208-2021, 8447-2017, SA 451-2017
dismissed the appeal on 14-10-2016 and, therefore, the original
defendants filed the second appeal challenging the said
concurrent Judgment and decree. It is to be noted that though
the second appeal was filed in the year 2017, it was not taken up
for circulation till 17-02-2021.
9. Respondent No.3/plaintiff No.3 expired on 26-04-2011, that
means when the matter was before the First Appellate court. The
applicants are contending that since there was no compliance
under Order 22 Rule 10-A of the Code of Civil Procedure, they
had not filed any application for bringing the legal
representatives of respondent No.3 on record. However, at the
same time we cannot forget the contents of this application
wherein the applicants themselves are contending that original
defendant No.3 i.e. present applicant No.3 had intimated the said
fact to his Advocate, but then it was said that all other real
brothers of plaintiff No.3 are on record, and it is then stated that,
they are also the legal representatives of plaintiff No.3.
Thereupon, the learned Advocate representing them stated that
the appeal will not abate. It can be seen that it appears that
there was half hearted information that appears to have been
10 CAs 7538-2021, 3208-2021, 8447-2017, SA 451-2017
given by applicant No.3 or with some such knowledge, the
statement has been made that the learned Advocate had advised
that the appeal will not abate. In fact, the present application is
not supported by the affidavit of the Advocate who had given
such kind of advise, if at all the said statement in the application
is to be believed. The fact remains that the applicants are not
claiming ignorance of the fact that respondent No.3/plaintiff No.3
was married and he had children. It cannot be stated that other
brothers would be the legal representatives in respect of the
share of plaintiff No.3 in the suit property. The definition given in
Section 2 (11) of the code of Civil Procedure cannot be
interpreted in such a way. When plaintiff No.2 has his own right
in the suit properties, as stated in Budh Ram and Others (Supra)
and Equbalbegum w/o Sk. Ahmed and others (Supra), the
brothers cannot represent the estate of another brother. Here, it
is to be noted that the applicants are very much harping upon
compliance of Order 22 Rule 10-A of the Code of Civil procedure.
But as aforesaid, it can be seen that the said amendment came
to be inserted by Act of 01-04-1976 with effect from 01-02-77
with an obligation on the pleaders of the parties to communicate
to the Court the death of party represented by him. It has a
11 CAs 7538-2021, 3208-2021, 8447-2017, SA 451-2017
limited scope and it does not give an excuse to the party to have
the compliance of bringing the legal representatives on record
when the party itself has knowledge of death of the rival party.
Again at the cost of repetition it can be said that it is hard to
believe that the real brother would not have come to know about
death of his real brother, and as aforesaid, the applicants
themselves are coming with a case that they had the knowledge
about death of plaintiff No.3, still they had not taken any step
when the matter was before the First Appellate Court. Further,
when they filed First Appeal in 2017, they had every knowledge
that respondent No.3 has expired, yet they filed the appeal
against a dead person. They did not take the matter for
circulation for about three years, and further it is to be noted that
they filed Civil Application No.3208 of 2021 on 01-03-2021 for
permitting them to adduce additional evidence with specific
statements regarding death of respondent No.3/plaintiff No.3, yet
for about four months, they had not taken steps to file this
application. This shows sheer Negligence on the part of the
applicants to take up the appropriate legal proceedings. By any
stretch of imagination it cannot be said that there is reasonable
much less sufficient ground to condone the delay of 3657 days.
12 CAs 7538-2021, 3208-2021, 8447-2017, SA 451-2017
Present case is not that of showing leniency for the aforesaid
reasons and, therefore, definitely the observations in Shanti Devi
and Others (Supra) that the delay cannot be condoned on
insufficient grounds and by abusing process of law, will have to
be applied to this case.
10. When sufficient ground has not been shown for condoning
the delay and for setting aside the abatement, then definitely the
ratio in Budh Ram and Others (Supra) as well as Equbalbegum
w/o Sk. Ahmed and Others (Supra), will have to be made
applicable. So also the ratio in State of Punjab vs. Nathu Ram,
reported in AIR 1962 SC 89 and Bibijan and Others vs.
Murlidhar and Others, reported in 1995 (1) SCC 187, are also
required to be considered in view of the fact that what decree
was passed against the appellants/applicants by the Trial Court
was joint and indivisible, and in view of death of one of the
plaintiffs and failure on the part of the applicants to bring his
legal representatives on record within the period of limitation,
this Court cannot proceed the decree had become final as against
the respondent No.3/plaintiff No.3 when no steps were taken
before the First Appellate court. In view of the same, the entire
13 CAs 7538-2021, 3208-2021, 8447-2017, SA 451-2017
second appeal stands abated in toto. Hence, following order is
passed.
ORDER
1) Civil Application No.7538 of 2021 stands
rejected, in consequence the Second Appeal No.451
of 2017 stands abated as whole.
2) Civil Applications No.3208 of 2021 and 8447 of
2017 stand disposed of.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-
