Gujarat High Court
Popatbhai Kachrabhai Patel vs Chetnaben W/O Jagdishkumar Popatbhai on 18 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 204 of 2017
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POPATBHAI KACHRABHAI PATEL & ORS.
Versus
CHETNABEN W/O JAGDISHKUMAR POPATBHAI & ANR.
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Appearance:
DELETED for the Appellant(s) No. 2
MR YOGESH G KANADE(3114) for the Appellant(s) No. 1,2,3,4
MR VISHAL B MEHTA(5319) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 18/11/2025
ORAL ORDER
1. The present Second Appeal, instituted under Section 100 of
the Code of Civil Procedure, 1908 (for short, "the Code"), assails the
judgment and decree rendered by the learned Lower Appellate Court
in Regular Civil Appeal No. 38 of 2013. The said appeal came to be
dismissed by judgment and order dated 09.02.2017, thereby
affirming the judgment and decree passed in Regular Civil Suit No.
62 of 2008, whereunder the suit of the plaintiff was partly decreed.
A. LITIGATION HISTORY:-
2. Shorn of non-essential details, the relevant factual matrix of
the lis in hand is adumbrated, thus:-
2.1. The plaintiffs are the widow (Plaintiff No.1) and minor
children (Plaintiff Nos.2 and 3) of Late Jagdishkumar Popatbhai
Kachrabhai, who claim rights in the ancestral properties of the
Kachrabhai family situated at Village Pethapur, District
Gandhinagar. The defendants are the close relatives of the deceased
--Defendant No.1 being his father, Defendant No.2 his uncle,
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Defendant No.3 his mother, and Defendant No.4 his brother.
2.2. The ancestral properties in question comprise agricultural
lands bearing Survey No.370 admeasuring 1-10-29 hectares, Block
No.1837 admeasuring 1-47-71 hectares, Block C/117, Block
No.2477 admeasuring 0-53-62 hectares, and a residential house
bearing No.2297 located in Sutharvas, Pethapur.
2.3. After the demise of Jagdishkumar Popatbhai Kachrabhai, the
plaintiffs allege that the defendants neither maintained them nor
acknowledged their lawful share in the ancestral properties by
entering their names in the revenue record. The plaintiffs further
assert that the defendants have issued threats and are likely to
alienate the ancestral properties to third parties, thereby
extinguishing the lawful rights of the plaintiffs and depriving the
minor children of their inheritance.
2.4. Aggrieved by the apprehended threat to their proprietary
rights, the plaintiffs instituted a civil suit seeking declaration of their
status as co-owners and protection of their share in the ancestral
properties. The learned Trial Court decreed the suit in favour of the
plaintiffs. Challenging the said judgment and decree, the defendants
preferred a first appeal, which came to be dismissed by the learned
Additional District Judge, Gandhinagar, by judgment dated
09.02.2017.
2.5. Still crestfallen, the defendants have now preferred the present
second appeal assailing the concurrent findings of both the courts
below and raising various substantial questions of law:-
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"1. Whether impugned judgment is violative of Hindu
Succession Act, 1956?
2. Whether impugned Judgment is violative of Courts Fees
Stamp Act, 2004 section 6(4) or not?
3. Whether Ld. Ad. Dist.Judge, Gandhinagar exceeds its
Jurisdiction by granting reliefs or not?
4. Whether Impugned order is violative of principal of
Natural Justice or not?
5. Whether impugned order passed by. Ad. Dist.Judge,
Gandhinagar is violative of civil rights or not?
6. Whether impugned judgment passed by Ld. Ad.
Dist.Judge, Gandhinagar is contrary to judgement of Hon'ble
Supreme Court and High Court?"
B. SUBMISSION OF THE APPELLANTS:-
3. Learned advocate for the appellant submitted that the learned
courts below have erred in law and fact by misinterpreting the
provisions of Section 6 of the Hindu Succession Act, 1956. The
statute clearly envisages distribution of shares in the ratio of 1/4,
whereas the courts below erroneously concluded and applied 1/3,
thereby causing substantial injustice and illegality in the
determination of shares.
3.1. It is further submitted that impugned orders passed by the
learned Additional District Judge and the learned Additional Civil
Judge, Gandhinagar are contrary to the settled principles of law, and
inconsistent with the material evidence on record. The findings
suffer from legal infirmity and perversity warranting interference in
Second Appeal.
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3.2. It is further submitted that the courts below have acted beyond
their jurisdiction by granting declaratory reliefs regarding partition
and title of the suit property, though such reliefs were neither sought
in the plaint nor prayed for in the stay application. Such action is
against the settled principles of equity and law laid down by the
Hon'ble Supreme Court.
3.3. Upon above submissions, learned advocate for the appellants
submitted to admit the present Second Appeal.
C. SUBMISSION OF THE RESPONDENTS:-
4. Learned advocate for the defendant would submit, contra the
appellant, that the courts below have, in fact, applied Section 6 of the
Hindu Succession Act, 1956, in its correct perspective. The statute
prescribes the scheme of devolution among Class-I heirs, and the
distribution undertaken by the courts below is strictly in consonance
with the legislative mandate. The appellant's assertion of a 1/4 ratio
is premised upon a misconceived reading of the provision, and the
computation adopted by the courts below is neither perverse nor
contrary to law. Ergo, the allegation of misinterpretation pales into
insignificance.
4.1. It is further submitted that the impugned findings are grounded
upon proper appreciation of the oral and documentary evidence, and
cannot, by any stretch of rumination, be termed perverse. The
appellant has failed to demonstrate that the conclusions are either
sub silentio or such as to amount to a legal infirmity. In absence
whereof, the very foundation of the appellant's plea of substantial
question of law crumbles. It is a trite posit of law that the High
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Court, in Second Appeal, does not reappreciate evidence, and no
seminal legal issue is made out warranting interference.
4.2. The learned advocate for the defendant would further submit
that the courts below have not travelled beyond their jurisdiction.
The reliefs granted are consequential to the issues framed and the
factual milieu elaborated in the pleadings. It is axiomatic that once
issues pertaining to partition, title, or share are in seisin of the court,
consequential declarations may be granted to sub-serve the ends of
justice. The contention that the courts granted reliefs "not prayed
for" is thus fallacious and bereft of any legal substratum. Thus, it is
submitted to dismiss the present Second Appeal.
5. Heard learned advocate for both the sides and perused the
relevant documents on record.
D. DISCUSSION AND FINDINGS:-
6. At the very threshold, it would be most apposite to advert to
the authoritative and seminal pronouncement of the Hon'ble
Supreme Court in Nazir Mohamed v. J. Kamala and Others, Civil
Appeal Nos. 2843-2844 of 2010, wherein, in Para 37, the Apex
Court has lucidly and categorically enunciated the legal position in
the following terms:-
"37. The principles relating to Section 100 CPC relevant for
this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a
document is a question of fact, but the legal effect of the
terms of a document is a question of law. Construction of a
document, involving the application of any principle of law,
is also a question of law. Therefore, when there is
misconstruction of a document or wrong application of a
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principle of law in construing a document, it gives rise to a
question of law.
(ii) The High Court should be satisfied that the case involves
a substantial question of law, and not a mere question of law.
A question of law having a material bearing on the decision
of the case (that is, a question, answer to which affects the
rights of parties to the suit) will be a substantial question of
law, if it is not covered by any specific provisions of law or
settled legal principle emerging from binding precedents,
and, involves a debatable legal issue.
(iii) A substantial question of law will also arise in a
contrary situation, where the legal position is clear, either on
account of express provisions of law or binding precedents,
but the Court below has decided the mat-ter, either ignoring
or acting contrary to such legal principle. In the second type
of cases, the substantial question of law arises not because
the law is still debatable, but because the decision rendered
on a material question, violates the settled position of law.
(iv) The general rule is, that High Court will not interfere
with the concurrent findings of the Courts below. But it is
not an absolute rule. Some of the well-recognised exceptions
are where i) the courts below have ignored material evidence
or acted on no evidence; ii) the courts have drawn wrong
inferences from proved facts by applying the law
erroneously; or (iii) the courts have wrongly cast the burden
of proof. A decision based on no evidence, does not refer
only to cases where there is a total dearth of evidence, but
also refers to case, where the evidence, taken as a whole, is
not reasonably capable of supporting the finding."
6.1. It is pertinent, ex abundanti cautela, to advert to the oft-
repeated error committed in the indiscriminate admission of Second
Appeals, despite the absence of a substantial question of law. The
Hon'ble Apex Court, in State Bank of India v. S.N. Goyal, (2008) 8
SCC 92, sounded a clear note of caution and held as under:-
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"It is a matter of concern that the scope of second appeals
and as also the procedural aspects of second appeals are
often ignored by the High Courts. Some of the oft-repeated
errors are :
(a) Admitting a second appeal when it does not give rise to a
substantial question of law.
(b) Admitting second appeals without formulating
substantial question of law.
(c) Admitting second appeals by formulating a standard or
mechanical question such as "whether on the facts and
circumstances the judgment of the first appellate court calls
for interference" as the substantial question of law.
(d) Failing to consider and formulate relevant and
appropriate substantial question/s of law involved in the
second appeal.
(e) Rejecting second appeals on the ground that the case
does not involve any substantial question of law, when the
case in fact involves substantial questions of law.
(f) Reformulating the substantial question of law after the
conclusion of the hearing, while preparing the judgment,
thereby denying an opportunity to the parties to make
submissions on the reformulated substantial question of law.
(g) Deciding second appeals by re-appreciating evidence and
interfering with findings of fact, ignoring the questions of
law.
These lapses or technical errors lead to injustice and also
give rise to avoidable further appeals to this court and
remands by this court, thereby prolonging the period of
litigation. Care should be taken to ensure that the cases not
involving substantial questions of law are not entertained,
and at the same time ensure that cases involving substantial
questions of law are not rejected, as not involving substantial
questions of law."
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6.2. Recently, in the case of Suresh Lataruji Ramteke v/s. Sau.
Sumanbai Pandurang Petkar [2023 Live Law (SC) 821], the
Hon'ble Apex Court in para 27 observed following:-
"27. The questions of law raised in the instant appeal are
answered as under:
27.1 A Court sitting in second appellate jurisdiction is to
frame substantial question of law at the time of admission,
save and except in exceptional circumstances. Post such
framing of questions the Court shall proceed to hear the
parties on such questions, i.e., after giving them adequate
time to meet and address them. It is only after such hearing
subsequent to the fraining that a second appeal shall come to
be decided.
27.2 In ordinary course, the High Court in such jurisdiction
does not interfere with finding of fact, however, if it does
find any compelling reason to do so as regard in law, it can
do but only after perusing the records of the Trial Court, on
analysis of which the conclusion arrived at by such a Court
is sought to be upturned. In other words, when overturning
findings of fact, the Court will be required to call for the
records of the Trial Court or if placed on record, peruse the
same and only then question the veracity of the conclusions
drawn by the Court below."
6.3. Thus, the scope of the High Court's jurisdiction in a Second
Appeal, as circumscribed by Section 100 of the Code, is indubitably
narrow and hedged with significant limitations. The appellate
scrutiny is confined strictly to the examination of a "substantial
question of law", a term of art which, by a long line of authoritative
precedents, has acquired a definitive connotation.
6.4. For a question to qualify as substantial, it must be debatable,
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not previously settled, and must involve an issue of legal
significance that warrants adjudication by the High Court. It must
not stand concluded by any binding precedent constituting the law of
the land; nor can it be a mere question of fact, or even a mixed
question of law and fact, unless the findings recorded by the courts
below are shown to be perverse, irrational, or arrived at sub silentio
ignoring material evidence.
7. In Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-
Un-Niswan, (1999) 6 SCC 343, the Hon'ble Apex Court has
enunciated, in no uncertain terms, that the High Court ought not to
interfere with concurrent findings of fact in a routine or cavalier
manner by substituting its own subjective satisfaction in place of the
reasoned conclusions of the courts below. The findings of fact
recorded by the subordinate courts, having been vetted on the
touchstone of cross-examination, are binding in Second Appeal, and
interference is permissible pro tanto only where such findings are
demonstrated to be perverse, unreasonable, or rendered in total non-
consideration of material evidence.
7.1. Adverting to the inter se claims of the parties and examining
the factual milieu through the prism of the adversarial system, it
becomes pellucid that there is no dispute whatsoever regarding the
relationship of the parties. The deceased, Jagdishkumar Popatbhai
Kachrabhai, son of Popatbhai Kachrabhai Patel, died intestate,
leaving behind the present plaintiff, Chetnaben, as his widow, along
with their two minor children.
7.2. The suit property admittedly belonged to Kachrabhai, and
upon the demise of Jagdishkumar Popatbhai Kachrabhai, the revenue
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entries came to be mutated in the name of Popatbhai. It also stands
admitted that Dipakbhai, the other son of Popatbhai, along with
Popatbhai and the branch of Jagdishkumar, constitute the three
sharers in the ancestral estate devolving upon them.
7.3. The learned Trial Court, as also the learned Appellate Court,
have adverted to Exhibit 46, which reflects that Jagdishkumar
Popatbhai Kachrabhai was not required to institute any independent
proceedings for assertion of his rights. However, the pellucid factual
position remains that the widow and two minor children of the
deceased Jagdishkumar Popatbhai Kachrabhai have been deprived of
their legitimate share in the disputed property.
7.4. It is equally undisputed that Jagdishkumar Popatbhai
Kachrabhai, since birth, had acquired right, title, and interest in the
suit property, the same being ancestral and belonging to his
grandfather. The Courts below have, in tandem with the evidence on
record, rightly and comprehensively dealt with this issue, and their
findings brook no interference within the narrow confines of a
Second Appeal.
7.5. The solitary contention advanced by the learned advocate for
the appellants, urging admission of this Second Appeal on the
premise that the sisters of Popatbhai were not impleaded as parties to
the suit and that, ergo, the suit was vitiated by the principle of non-
joinder of necessary parties, is wholly devoid of merit. I find no
substance whatsoever in the said submission.
7.6. The presence of the two daughters of the deceased Kachrabhai
would have assumed relevance only if his two sons--Popatbhai
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Kacharabhai Patel and Ambalal Kachrabhai Patel were inter se
contesting their respective shares. However, it stands admitted on
record that the two daughters of Kachrabhai were married long prior,
and upon the demise of Kachrabhai, the disputed property devolved
exclusively upon his two sons, Popatbhai Kacharabhai Patel and
Ambalal Kachrabhai Patel, whereafter the revenue entries were also
duly mutated in their favour.
7.7. It is axiomatic that the rights of daughters as coparceners were
recognized only upon the amendment to the Hindu Succession Act
in 2005, which has been consistently held to be prospective in
operation. The partition of the disputed property between Popatbhai
Kacharabhai Patel and Ambalal Kachrabhai Patel had taken place
much prior to such statutory recognition of coparcenary rights in
favour of daughters. In this factual milieu, the contention that the
suit was barred for non-joinder of necessary parties pales into
insignificance and does not commend acceptance. Even otherwise,
such a contention could, if at all, have been validly canvassed only
by the two daughters of Kachrabhai and not by the present appellant,
whose locus to raise the issue is conspicuously absent.
7.8. It is equally noticeable that the decree was passed against both
Popatbhai Kachrabhai Patel and Ambalal Kachrabhai Patel. Ambalal
Kachrabhai Patel expired during the pendency of the first appeal.
Both defendants were visited with a common and indivisible cause
of action, and the decree passed by the learned Trial Court attained
finality qua Ambalal Kachrabhai Patel upon his demise during the
appellate proceedings. In such circumstances, there is no warrant in
law to sever or bifurcate a decree that has already attained finality in
respect of one of the parties. The present appeal is, therefore, clearly
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hit by the principle of res judicata.
8. To fortify this conclusion, reference may be made to the
authoritative pronouncement of the Hon'ble Supreme Court in Goli
Vijayalakshmi v. Yendru Sathiraju (Dead) by LRs., (2019) 11 SCC
352, wherein the legal position on this aspect stands lucidly
enunciated. The relevant observations read thus:-
"16. The primary role of the Court is to adjudicate the
dispute between the parties and to advance substantial
justice. Inasmuch as the abatement results in denial of
hearing on the merits of the case, the provision of abatement
has to be construed within the strict parameters of law.
Abatement of suit for failure to move an application for
bringing the legal representatives on record within the
prescribed period of limitation is by operation of law but
once the suit has abated as a matter of law, though there may
not have been passed on record a specific order dismissing
the suit as abated, yet the legal representatives proposing to
be brought on record or any other applicant proposing to
bring the legal representatives of the deceased party on
record would seek for the setting aside of an abatement.
17. The question arises in reference to the effect of
abatement qua the appellants(plaintiffs or defendants), as the
case may be, where the decree is joint and indivisible, the
appeal against the other defendants will be proceeded with
and in the event of appeal to succeed, there will be two
mutually inconsistent/contradictory decrees and more
particularly when the suit has already been decreed qua one
defendant and the suit would stand dismissed qua the other
defendants, in such a given situation, tests have been laid
down by this Court to determine as to whether or not to
proceed with the appeal.
18. This Court while adverting to Order 22 Rule 4 CPC
against the other respondent in State of Punjab v. Nathu Ram
AIR 1962 SC 89 observed as under:--
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"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 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."
19. The exposition of the Constitution Bench in Sardar
Amarjit Singh Kalra (Dead) by LRs (supra) is as under:--
"34. In the light of the above discussion, we hold:--
(1) Wherever the plaintiffs or appellants or petitioners are
found to have distinct, separate and independent rights of
their own and for the purpose of convenience or
otherwise, joined together in a single litigation to
vindicate their rights the decree passed by the Court
thereon is to be viewed in substance as the combination
of several decrees in favour of one or the other parties
and not as a joint and inseverable decree. The same
would be the position in the case of defendants or
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respondents having similar rights contesting the claims
against them.
(2) Whenever different and distinct claims of more than
one are sought to be vindicated in one single proceedings
as the one now before us, under the Land Acquisition Act
or in similar nature of proceedings and/or claims in
assertion of individual rights of parties are clubbed,
consolidated and dealt with together by the Courts
concerned and a single judgment or decree has been
passed, it should be treated as a mere combination of
several decrees in favour of or against one or more of the
parties and not as joint and inseparable decrees.
(3) The mere fact that the claims or rights asserted or
sought to be vindicated by more than one are similar or
identical in nature or by joining together of more than one
of such claimants of a particular nature, by itself would
not be sufficient in law to treat them as joint claims, so as
to render the judgment or decree passed thereon a joint
and inseverable one.
(4) The question as to whether in a given case the decree
is joint and inseverable or joint and severable or
separable has to be decided, for the purposes of
abatement or dismissal of the entire appeal as not being
properly and duly constituted or rendered incompetent for
being further proceeded with, requires to be determined
only with reference to the fact as to whether the
judgment/decree passed in the proceedings vis-a-vis the
remaining parties would suffer the vice of contradictory
or inconsistent decrees. For that reason, a decree can be
said to be contradictory or inconsistent with another
decree only when the two decrees are incapable of
enforcement or would be mutually self-destructive and
that the enforcement of one would negate or render
impossible the enforcement of the other."
20. It was further considered in Budh Ram v. Bansi 2010
(11) SCC 476 and the principle, therefore, emerges is to test
whether the judgment/decree passed in the proceedings vis-
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à-vis the remaining parties would suffer from the vice of
contradictory or inconsistent decrees inasmuch as the two
decrees are incapable of enforcement or would be mutually
self-destructive and that the enforcement of one would
negate or render impossible the enforcement of the other.
21. Applying the aforesaid principles, the facts of the instant
cases on hand clearly manifest that the judgment and decree
passed by the trial Court became final qua appellant no.
2(defendant no. 2) upon abatement of the appeal qua him
vide order dated 24th July, 2009. If this Court would permit
the remaining appellants to prosecute the appeals and, in the
event they were to succeed, indisputedly, there would be
mutually inconsistent/contradictory decrees inasmuch as the
suit has already been decreed qua appellant no. 2(defendant
no. 2) on the one hand and the suit would stand dismissed
qua appellant nos. 1 & 3(defendant nos. 1 & 3) or decreed
against them in reference to schedule 'C' property and not
against appellant no. 2(defendant no. 2) due to dint of cross
appeal filed by the plaintiff.
22. If the instant appeals were to be allowed, the same would
result in a situation where the enforcement of the two
decrees would be in executable and the enforcement of one
would negate or render impossible the enforcement of the
other and to further simplify, the plaintiffs/respondents
would be entitled to the share of the appellant no.
2(defendant no. 2) in the suit schedule 'A' and 'B' properties
and there is no way he could enforce the same without
negating the enforcement of the other decree viz. dismissal
of the suit qua appellant nos. 1 & 3(defendant nos. 1 & 3)
since the suit schedule properties each constitute a single
unit and the same has not yet been demarcated and/or
divided amongst the defendants and without such clear
demarcation and delineation of the properties, indisputedly,
which has not yet happened, it would be impossible for the
plaintiffs/respondents to enforce decree qua the appellant no.
2(defendant no. 2) without impinging on the rights of the
appellant nos. 1 & 3(defendant nos. 1 & 3).
23. The submission of learned counsel for the appellants that
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even if the appeal stood abated qua the appellant no. 2, the
other appellants would be entitled to prosecute the appeals
relying on the principle of Order 41 Rule 4 & 33 CPC.
Suffice it to say that once the appeal stood abated against the
appellant no. 2(defendant no. 2) and the decree which stands
confirmed qua the appellant no. 2(defendant no. 2) cannot
indirectly be reopened to challenge at the behest of persons
claiming through him by relying on provisions of Order 41 R
4 & 33 CPC as prayed for."
9. The most recent and apposite pronouncement on this issue is
the decision of the Hon'ble Supreme Court in Suresh Chandra
(Deceased) through LRs & Others v. Parasram & Others, 2025
LiveLaw (SC) 728, wherein the Apex Court has authoritatively
reiterated the governing principles. The relevant passages,
illuminating the legal position with pellucid clarity, are extracted
hereinbelow:-
"14. As to when an appeal would abate in its entirety for
non-substitution of legal representatives of a deceased party
depends upon the facts and circumstances of an individual
case. The law in this regard has been discussed in detail and
summarized by a five-Judge Bench of this Court in Sardar
Amarjit Singh Kalra (Dead) by LRs and Others v. Pramod
Gupta (Smt.) (Dead) by LRs and Others16 as under:
"21. .................... (a) In case of "joint and indivisible
decree", "joint and inseverable or inseparable decree", the
abatement of (2003) 3 SCC 272 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
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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 centered 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.
xxxx xxxx xxxx
30. The question, therefore, as to when a proceeding before
the court becomes or is rendered impossible or possible to be
proceeded with, after it had partially abated on account of
the death of one or the other party on either side has been
always considered to depend upon the fact as to whether the
decree obtained is a joint decree or a severable one and that
in case of a joint and inseverable decree if the appeal abated
against one or the other, the same cannot be proceeded with
further for or against the remaining parties as well. If
otherwise, the decree is a joint and several or separable one,
being in substance and reality a combination of many
decrees, there can be no impediment for the proceedings
being proceeded with among or against those remaining
parties other than the deceased. ...
31. But, in our view also, as to what those circumstances are
to be, cannot be exhaustively enumerated and no hard and
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fast rule for invariable application can be devised. With the
march and progress of law, the new horizons explored and
modalities discerned and the fact that the procedural laws
must be liberally construed to really serve as handmaid,
make it workable and advance the ends of justice, technical
objections which tend to be stumbling blocks to defeat and
deny substantial and effective justice should be strictly
viewed for being discouraged, except where the mandate of
law inevitably necessitates it. ...... At times, one or the other
parties on either side in the litigation involving several
claims or more than one, pertaining to their individual rights
may settle among themselves the dispute to the extent their
share of proportion of rights is concerned and may drop out
of context, bringing even the proceedings to a conclusion so
far as they are concerned. If all such moves are allowed to
boomerang adversely on the rights of the remaining parties
even to contest and have their claims adjudicated on merits,
it would be a travesty of administration of justice itself.
32. The area of differences in the catena of decisions brought
to our notice is not so much with reference to the principles
to be applied to different nature of decrees but only as to
which of the decree(s) falls, when or under what
circumstances under one or the other of the classification i.e.
joint and inseverable or joint and severable or separable.
This aspect seems to have been adjudged in different cases
depending upon the nature/source of rights, the cause of
action, the manner they were asserted by the parties
themselves and the contradictory nature of decrees
impossible of execution, likely to result when considered
differently. It is for this reason any standardized formula was
avoided and the matter left for the consideration of courts,
on the peculiar nature of the cases coming for determination.
......
33. Even assuming that the decree appealed against or
challenged before the higher forum is joint and several but
deals with the rights of more than one recognized in law to
belong to each one of them on their own and unrelated to the
others, and the proceedings abate in respect of one or more
of either of the parties, the courts are not disabled in any
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manner to proceed with the proceedings so far as the
remaining parties and part of the appeal is concerned. As and
when it is found necessary to interfere with the judgment and
decree challenged before it, the court can always declare the
legal position in general and restrict the ultimate relief to be
granted by confining it to those before the court only rather
than denying the relief to one and all on account of a
procedure lapse or action or inaction of one or the other of
the parties before it. The only exception to this course of
action should be where the 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. As far as possible, courts must
always aim to preserve and protect the rights of parties and
extend help to enforce them rather than deny relief and
thereby render the rights themselves otiose, "ubi jus ibi
remedium" (where there is a right, there is a remedy) being a
basic principle of jurisprudence. Such a course would be
more conducive and better conform to a fair, reasonable and
proper administration of justice.
34. In the light of the above discussion, we hold:
(1) Wherever the plaintiffs or appellants or petitioners are
found to have distinct, separate and independent rights of
their own and for the purpose of convenience or otherwise,
joined together in a single litigation to vindicate their rights,
the decree passed by the court thereon is to be viewed in
substance as the combination of several decrees in favour of
one or the other parties and not as a joint and inseverable
decree. The same would be the position in the case of
defendants or respondents having similar rights contesting
the claims against them.
(2) Whenever different and distinct claims of more than one
are sought to be vindicated in one single proceedings, as the
one now before us, under the Land Acquisition Act or in
similar nature of proceedings and/or claims in assertion of
individual rights of parties are clubbed, consolidated and
dealt with together by the courts concerned and a single
judgment or decree has been passed, it should be treated as a
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mere combination of several decrees in favour of or against
one or more of the parties and not as joint and inseparable
decrees.
(3) The mere fact that the claims or rights asserted or sought
to be vindicated by more than one are similar or identical in
nature or by joining together of more than one of such
claimants of a particular nature, by itself would not be
sufficient in law to treat them as joint claims, so as to render
the judgment or decree passed thereon a joint and
inseverable one. (4) The question as to whether in a given
case the decree is joint and inseverable or joint and severable
or separable has to be decided, for the purposes of abatement
or dismissal of the entire appeal as not being properly and
duly constituted or rendered incompetent for being further
proceeded with, requires to be determined only with
reference to the fact as to whether the judgment/decree
passed in the proceedings vis-à-vis the remaining parties
would suffer the vice of contradictory or inconsistent
decrees. For that reason, a decree can be said to be
contradictory or inconsistent with another decree only when
the two decrees are incapable of enforcement or would be
mutually self-destructive and that the enforcement of one
would negate or render impossible the enforcement of the
other." (Emphasis supplied)
15. In State of Punjab vs. Nathu Ram17, which was noticed
and followed by the five-Judge Bench in Sardar Amarjit
Singh (supra), this Court enumerated certain tests to
determine whether the whole appeal would abate on account
of non-substitution of the legal representatives of one or
some of the deceased parties. In this regard it was observed:
"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
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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 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 coming to a
decision which be in conflict with the decision between the
appellant and the deceased respondent and therefore which
would lead to court 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 would not be
successfully executed." (Emphasis supplied) .
16. In Ram Sarup vs. Munshi18 there was a decree of pre-
emption against the defendant-appellants who had bought
the property from the co-defendants in the suit. One of the
appellants died and his legal representatives were not
brought on record. The issue which fell for consideration
was whether the whole appeal abated, or the abatement was
qua the deceased appellant only. Argument on behalf of the
surviving appellants was whatever might be the position as
regards the share to which the deceased appellant was
entitled in the property purchased, the interest of the
deceased was distinct and separate from that of the others
and that the abatement could, in any event, be only partial
and would not affect the continuance of the appeal by the
surviving appellants at least as regards their share in the
property. To deal with the above argument, this Court called
for the sale deed by which the appellants had purchased the
property. Upon consideration of the sale deed, the Court
found that it was not a case of sale of any separated item of
Referred to in Footnote 7 property in favour of the deceased
appellant but of one set of properties to be enjoyed by
vendees in equal shares. Based on that, the five-Judge Bench
of this Court held:
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"It is clear law that there can be no partial pre- emption
because pre-emption is the substitution of the pre-emptor in
place of the vendee and if the decree in favor of the pre-
emptor in respect of the share of the deceased Mehar Singh
has become final it is manifest that there would be two
conflicting decrees if the appeal should be allowed and the
decree for pre-emption insofar as appellants 2 to 5 are
concerned is interfered with. Where a decree is a joint one
and a part of the decree has become final, by reason of
abatement, the entire appeal must be held to be abated."
(Emphasis supplied).
31. Upon consideration of the decisions on the interplay
between the provisions of Order XLI Rule 4 and Order XXII
of CPC qua abatement of an appeal, the law that emerges is
summarized below:
i. Rule 4 of Order XLI applies to the stage when an appeal
is filed and empowers one of the plaintiffs or defendants to
file an appeal against the entire decree in certain
circumstances. A plaintiff or defendant can take advantage
of this provision, but he may not. Therefore, once an appeal
is filed by all the plaintiffs or defendants aggrieved by the
decree, the provisions of Order XLI, Rule 4 become
unavailable.
ii. Rule 4 of Order XLI is to enable one of the parties to a
suit to obtain relief in appeal when the decree appealed from
proceeds on a ground common to him and others.
The court in such an appeal may reverse or vary the
decree in favour of all the parties who are having the same
interest as the appellant, even though they have not appealed
against the decree. This is so, because it is not the law that
when a decree is passed on a ground common to all the
parties, the appeal is to be filed by all the parties or not at all.
iii. Order XXII applies without exception to all
proceedings covered by it. It operates during the pendency of
a proceeding including an appeal and not at its institution.
Therefore, if an appellant dies during the pendency of the
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appeal, his legal representatives must be brought on record
within the period of limitation. If that is not done, the appeal
by the deceased appellant abates.
iv. Where an appeal is filed by any one or some of the
plaintiffs, or defendants, aggrieved by the decree, by
impleading other such plaintiff(s) or defendant(s) as
proforma-respondent(s), in the event of death of such
proforma-respondent, the benefit of the provisions of Order
XLI Rule 4 would be available to continue the appeal
regardless of substitution of LRs of such proforma-
respondent.
v. There is no inconsistency between the provisions of
Order XXII and those of Rule 4 of Order XLI CPC. They
operate at different stages and provide for different
contingencies. There is nothing common in their provisions
which make the provisions of one interfere in any way with
those of the other."
E. CONCLUSION:-
10. In the aforesaid factual milieu, this Court, upon an anxious and
meticulous rumination over the entire record, finds no reason to
admit the present Second Appeal. Ergo, the Second Appeal stands
DISMISSED in limine.
10.1. Interim relief, if operating, stands vacated. The Records and
Proceedings, if any, be remitted to the concerned Court forthwith for
expeditious compliance.
(J. C. DOSHI,J)
MANISH MISHRA
