Bombay High Court
Shri Fathubahai Vithalbhai ... vs Smt. Dhanuben Kamubhai Umedsinh ... on 24 March, 2021
Bench: S. K. Shinde
Rane 1/7 SA-660-2012 (sr.9)
24.3.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 660 OF 2012
ALONGWITH
CIVIL APPLICATION NO. 1589 OF 2015
ALONGWITH
CIVIL APPLICATION NO. 1273 OF 2012
Shri. Fathubai Vithalbhai Chauhan
and Ors. .....Appellants
V/s.
Smt. Dhanuben Rathod and Ors. ....Respondents
****
Mr. Harshad Inamdar, Advocate for the appellants.
Ms. Jaya Joil Bagwe, Advocate for respondent no.1.
CORAM : SANDEEP K. SHINDE, J.
Wednesday, 24th March, 2021.
ORAL JUDGMENT :
1. Admit. Counsel for the respondent waives
notice. With consent of the Counsel, appeal is heard finally
at the admission stage.
Rane 2/7 SA-660-2012 (sr.9)
24.3.2021
FACTS OF THE CASE :
2. Respondent no.1-plaintiff, instituted Regular
Civil Suit No.23/1999 for partition and separate possession
of the suit property against brothers and sisters. The Suit
was decreed by the Civil Judge, Dadra and Nagar Haveli,
Silvassa on 30th August, 2006. This decree, was assailed in
Regular Civil Appeal No. 4/2006 before the District Judge,
Dadra & Nagar Haveli at Silvassa. Pending Appeal, one of
the appellants, Savitaben Vithalbhai Chauhan, (original
defendant no.3) died on 20th February, 2011. May be for
reasons, not known, legal representatives of Savitaben
Vithalbhai Chauhan were not brought on record. Neither
this fact was not brought to the notice of the learned
District Judge. Appeal was heard and partly allowed by
judgment and order dated 20th March, 2012. Feeling
aggrieved, defendants no.1, 2 and 4 have preferred this
Second Appeal.
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24.3.2021
3. Mr. Inamdar, learned Counsel for the appellants,
submits that, considering the nature of the controversy
wherein the suit was for partition, the death of one of the
appellants, and his legal representatives not being brought
on record, may result in conflicting and/or contradictory
decrees. In support of his submission, he has relied on the
judgment of this Court in the case of Ramrao Joti Godase
and Others Vs. Kisan Joti Godase and Ors1. Learned
Counsel has relied on paragraphs-10 and 11 of the cited
judgment and would submit that in the circumstances, the
entire appeal stood abated. Paragraphs-10 and 11 read as
under :
10. The Supreme Court of India in the case of
Jaladi Suguna v/s. Satya Sai Central Trust & ors.
2008 (7 ) SCR 734 has held thus :
"14. When a respondent in an appeal
dies, and the right to sue survives, the
legal representatives of the deceased
respondent have to be brought on record
before the court can proceed further in the
appeal. Where the respondent-plaintiff
who has succeeded in a suit, dies during
1 2012(2)Mh.L.J.741
Rane 4/7 SA-660-2012 (sr.9)
24.3.2021
the pendency of the appeal, any judgment
rendered on hearing the appeal filed by
the defendant, without bringing the legal
representatives of the deceased
respondent - plaintiff on record, will be a
nullity. In the appeal before the High
Court, the first respondent therein
(Suguna) was the contesting respondent
and the second respondent (tenant) was
only a proforma respondent. When first
respondent in the appeal died, the right to
prosecute the appeal survived against her
estate. Therefore it was necessary to
bring the legal representative/s of the
deceased Suguna on record to proceed
with the appeal."
The Supreme Court has clearly held that if the
entire Appeal abates, then Judgment delivered in
such an Appeal is a nullity. This principle of law is
also restated in the Judgment of Ambalal v/s.
Gopal & ors AIR 2001 SCW 1996.
11. Present case is obviously one which falls within
the category of 3 cases laid down by the Supreme
court. The suit is for partition and separate
possession. Different shares had been allotted to the
Plaintiff and Defendants. The Defendant Nos. 3
and 6 were aggrieved by the shares allotted and
hence filed an Appeal alongwith the other
Defendants. The Defendant No. 3 died during the
pendency of the Appeal and it is an admitted
position that the heirs are not brought on record.
Obviously the Appeal abates as against the
Defendant No. 3. However, considering the nature
of the controversy where the Suit was for partition,
success of such an Appeal would have led to the
Courts coming to a decision which may be in
conflict with the decision between the deceased
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24.3.2021
Appellant and the Respondent and that would have
resulted in the Court passing a Decree which will be
contradictory to the Decree which has become final
with respect to the same subject matter between the
deceased Appellants and the Respondents.
Remaining Appellants could not have
independently filed an Appeal when the deceased
Defendant Nos. 3 and 6 were not being represented
before the Court. The District Court in the present
case was not well informed about the dates of death
of Bhagirathibai and Gangubai and ignorant of
such fact, the Appeal was dismissed but the cross-
objection filed by the original Plaintiffs were
allowed. Even the original Plaintiffs have not taken
any steps for bringing heirs of Appellant Nos. 3 and
6 on record in their cross-objections. Consequently
not only the entire Appeal but the entire cross-
objections abate."
4. In consideration of the facts of the case and the
ratio laid down in the Ramrao Joti (supra), the Second
Appeal is allowed. The impugned judgment and decree
dated 20th March, 2012 passed in Regular Civil Appeal
No.4/2006 passed by District Judge, Dadra and Nagar
Haveli at Silvassa, is quashed and set aside. Resultantly,
the decree of the trial Court stands restored. Hence, I pass
the following order :
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24.3.2021
ORDER
(i) Second Appeal is allowed.
(ii) The impugned judgment and decree dated
20th March, 2012 passed by the Principal
District Judge, Dadra and Nagar Haveli at
Silvassa in Regular Civil Appeal No.4/2006 is
quashed and set aside. It is held that the said
Appeal had abated in its entirety.
(iii) Consequently the judgment and decree
dated 30th August, 2006 passed by the Civil
Judge, Dadra and Nagar Haveli, Silvassa in
Regular Civil Suit No.23/1999 is restored.
5. Appeal is allowed and disposed off accordingly.
6. In view of the disposal of the Appeal, Civil
Applications No. 1589/2015 and 1273/2012 become
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24.3.2021
infructous and do not survive. The same are accordingly
disposed of.
Digitally
signed by
Neeta
S.
Neeta S.
Sawant (SANDEEP K. SHINDE, J.)
Date:
Sawant 2021.03.25
11:28:08
+0530
