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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO.4103 OF 2008  

HEMAREDDI (D) THROUGH LRs.       ....APPELLANT(S)  

VERSUS  

RAMACHANDRA YALLAPPA HOSMANI  

AND ORS.         ....RESPONDENT(S)  

J U D G M E N T  

K.M. JOSEPH, J.  

1. This appeal by special leave is directed against  

the order of the High Court in Regular First appeal  

No.717 of 1998.  By the impugned judgment, the High  

Court has taken the view that the appeal filed by

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the appellant does not survive for consideration.   

This is on the following reasoning:  

The appeal was filed by the appellant and his late  

brother against the judgment by the trial court  

dismissing the suit filed by them.  The relief  

in the suit was to declare that defendant No.1  

was not the adopted son and he has no title or  

interest over the suit property and for  

prohibitory injunction against the defendant not  

to disturb the joint possession of the suit  

agricultural land of the plaintiff and defendant  

No.2.  

2.  It was the appellants case that one  

Govindareddi, the propositus died in 1946.  He left  

behind him two sons and a daughter.  The plaintiffs  

were the children of one of the sons.  The second  

defendant was the wife of the other son Basavareddi.  

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The suit properties were the properties of the joint  

family of Govindareddi and his sons it was claimed.   

The plaintiffs have filed another suit as O.S. No.66  

of 1990 against the second defendant for declaration  

that she has no right in the property.  Injunction  

was also sought.  Injunction was ordered against  

her.  On the ill advice of some advisors it was their  

case that she has created a false document of  

adoption dated 27.04.1991 adopting the first  

defendant.  Defendants 3 and 4 are alleged to have  

given to the first defendant on adoption to the  

second defendant.  The trial Court dismissed the  

suit and therefore upheld the adoption.  Against  

the said judgment as noted, both the plaintiffs  

preferred first appeal before the High Court.  It  

is while so that during the pendency of the appeal  

the second plaintiff/second appellant died.  The  

LRs of the second appellant were not brought on

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record.  The appeal, therefore, abated qua the  

second appellant.  The High Court took the view that  

having regard to the decree which has been passed  

the appeal would abate not only qua the second  

appellant/ plaintiff but as a whole and accordingly  

it was so ordered.  

3.  We have heard learned counsel for the  

parties.  

4.  Learned counsel for the appellant drew our  

attention to the following orders passed by the High  

Court in the appeal and referred to in the impugned  

judgment:  

“8. When the matter was listed on 20th  

July, 2001, this court observed thus:  

It is stated by the learned counsel for  

the appellant that the second  

appellant (plaintiff No.2) is died and  

in view of the death of second  

appellant, the matter is adjourned by  

two weeks to enable the appellants’  

counsel to take steps.”

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 9. The appeal was relisted on  

10.09.2001.  This court has observed thus:  

Hence the appeal filed against the  

appellant No.2 abates.  Memo filed by  

appellant No.1 submitting himself and  

appellant No.2 are brothers and  

co-owners of suit schedule property.   

Since the LRs of appellant No.2 have  

not evinced interest to prosecute the  

appeal, appellant No.1 prays  

permission to prosecute the appeal.   

Accordingly, permission is granted.”    

5.  Learned counsel for the appellant would  

contend that the appellant herein could have filed  

a separate suit seeking the same relief.  

Learned counsel for the appellant relied upon  

the order passed on 10/09/2001 and contended that  

though the LRs of the appellant No.2 did not evince  

interest to prosecute the appeal, the petitioner who  

is appellant No.1 prayed for permission to prosecute  

the appeal.  The permission was granted by the High  

Court. The respondents did not oppose the  

prosecution of the appeal filed by the appellant

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despite knowing that the second appellant did not  

choose to get themselves impleaded and the appeal  

would have abated qua him also.  According to the  

appellant this would stand in the way of the court  

and the respondents from proceeding on the basis  

that the appeal has abated as a whole.  In other  

words, he contended that estoppel will operate  

against the appeal being dismissed on the death of  

the second appellant, and on the basis that the  

appeal has abated as a whole.  He also drew our  

attention to the judgment of this Court in Sardar  

Amarjit Singh Kalra (Dead) BY LRS. and Others v.  

Pramod Gupta (Smt) (D) BY LRS. And Others; 2003 (3)  

SCC 272.  

6.  Per contra, learned counsel appearing for  

the respondents supported the order of the High  

Court.  He contended that the order passed by the

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High Court will not operate as estoppel estopping  

them from contending that the appeal has abated as  

a whole.  There would be conflict of decrees, as on  

the one hand, the trial Court has passed a decree  

upholding the adoption, and even if the High Court  

were to allow the appeal filed by the appellant and  

hold that the adoption was invalid, there will be  

two conflicting decrees, one by the trial Court  

which as far as the deceased second appellant is  

concerned, has become final and another by the High  

Court taking a contrary view.  This is not  

contemplated in law and therefore, the reasoning of  

the High Court is only to be supported.    

7.  Death of a party during the currency of a  

litigation indeed has given rise to vexed questions.  

Procedure is the hand maiden of justice, the  

technicalities of law should not be allowed to

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prevail over the demands of justice and obstacles  

in the path of the Court considering a case on merit  

should not ordinarily become insuperable.   On the  

other hand, if the so called procedural requirement  

is drawn from a wholesome principle of substantive  

law to advance the cause of justice, the same may  

not be overlooked.  

Order XXII Rule 3 C.P.C.  

“3. Procedure in case of death of one of  

several plaintiffs or of sole plaintiff  

   (1) Where one of two or more plaintiffs  

dies and the right to sue does not survive  

to the surviving plaintiff or plaintiffs  

alone, or a sole plaintiff or sole  

surviving plaintiff dies and the right to  

the sue survives, the Court, on an  

application made in that behalf, shall  

cause the legal representative of the  

deceased plaintiff to be made a party and  

shall proceed with the suit.  

   (2) Where within the time limited by  

law no application is made under sub-rule  

(1), the suit shall abate so far as the  

deceased plaintiff is concerned, and, on  

the application of the defendant, the Court  

may award to him the costs which he may have  

incurred in defending the suit, to be

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recovered from the estate of the deceased  

plaintiff.”  

8.  There can be no doubt that Order XXII Rule  

3 is applicable also to appeals filed under Order  

41.  Order XXII Rule 3 declares that where one of  

two or more plaintiffs dies and the right to sue does  

not survive to the surviving plaintiff or plaintiffs  

alone inter alia the Court on an application can  

substitute the legal representatives of the  

deceased plaintiff and proceed with the suit.   

Sub-rule (2) provides that if it is not so done, the  

suit shall abate as far as the deceased plaintiff  

is concerned.  Order XXII Rule (3) therefore is  

applicable when either a suit or an appeal is filed  

by more than one plaintiffs or appellants as the case  

may be.  This is no doubt apart from it applying when  

there is a sole plaintiff or sole appellant. In such  

a situation, on the death of one of the plaintiffs

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or appellants and the right to sue does not survive  

to the remaining plaintiff/plaintiffs or  

appellant/appellants alone, then the LRs of the  

deceased party can come on record.  Should he not  

do so, ordinarily, the proceeding will abate as far  

as the deceased party is concerned.    

9.  Let us first of all examine whether the right  

to sue survived to the appellant alone or the right  

to sue was available to the LRs of the deceased  

appellant as well.  It is quite clear that there  

were legal representatives available for the second  

appellant.  This is not a case where the estate of  

the second appellant would pass to the appellant  

herein by survivorship or otherwise.  Therefore,  

the first requirement is fulfilled for allowing  

Order XXII Rule 3 to operate.  Admittedly, steps  

were not taken for substitution in regard to the

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second appellant.  The appeal, therefore, abated  

qua him as is declared by Order XXII Rule 3(2).   

Though this is all that the Order XXII Rule 2  

declares, the principle has evolved that in certain  

kinds of litigation, the consequences of abatement  

qua a party is not limited to the deceased party  

alone but it affects all the other parties and the  

litigation itself. In other words, a suit or an  

appeal as the case may be, would suffer an untimely  

demise by the proceeding abating as a whole.    

10.  The question which we are called upon to  

answer is whether this is such a case?  The  

allegation in the plaint as we have noticed is that  

the suit properties are joint properties and the  

second defendant had no exclusive right to the  

property.  She had created a false document  

described as an adoption deed by which she has

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purported to adopt the first defendant.  The first  

defendant cannot claim any right to the suit  

property as an adopted son.  On the alleged date of  

adoption, the husband of the second defendant was  

alive.  He had died on 16.04.1987, in jointness with  

the plaintiffs. The plaintiffs were the joint owners  

of the suit land and also other property. When  

Basavareddi, the husband of the second defendant was  

alive, she has no right to take the first defendant  

on adoption.  Defendant No.1 cannot claim any title  

interest or right over the suit property.    

11.  In this case having noted pleadings and the  

relief sought we can proceed on the basis that it  

was the appellant’s case that the plaintiff’s  

property was the joint family property belonging to  

the appellant and his deceased brother.  The trial  

Court dismissed the suit.  The result is that the

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adoption of the 1st defendant by the 2nd defendant  

which was challenged by the appellant and his late  

brother was upheld.  The said judgment was called  

in question in a Single Appeal by the appellant and  

his late brother.  It is while the appeal was so  

pending that the late brother passed away.  The  

appeal having abated in regard to the late brother,  

the decree of the trial Court has become final qua  

the deceased brother of the appellant.  The effect  

of the same is that the adoption is found legal.  The  

result of the appellant being allowed to proceed  

further and succeed in the appeal would be the  

passing of a decree by the High Court.  The said  

decree would be to the effect that the adoption is  

invalid.  The suit which was jointly filed by the  

appellant and his late brother would have to be  

decreed whereas the suit filed by the appellant and  

his late brother stands dismissed by the trial

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Court.  Both the decrees cannot stand together.  

There would be irreconcilable conflict.  The  

defendants are common.  They would be faced with two  

decrees regarding the same subject matter which are  

irrevocably conflicting.  

12.  In State of Punjab vs. Nathu Ram AIR 1962 SC  

89, the Punjab Government had acquired certain  

pieces of land belonging to two brothers. Upon their  

refusal to accept the compensation offered, their  

joint claim was referred to arbitration on the basis  

that the land belong to them jointly.  An award was  

passed in their favour.  The Government appealed  

before the High Court.  During pendency of the  

appeal, one of the brothers died.  No application  

was filed to bring on record his LRs within the time  

limit.  The High Court dismissed the appeal and  

reasoned that it abated against the person who has

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died and the appeal abated as a whole.  It is useful  

to advert to what this Court has laid down in State  

of Punjab vs. Nathu Ram (Supra) at pages 638-640:  

………… “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 co-respondents 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 O. XXII, r. 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.   

The same conclusion is to be drawn from  

the provisions of O.I, r.9, of the Code  

which provides that no suit shall be  

defeated by reason of the misjoinder or  

non-joiner of parties and the Court may, in  

every suit, deal with the matter in  

controversy so far as regards the rights

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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.  

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

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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.  

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 decree-holders or on the execution of  

the ultimate decree between them.  

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

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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  

respondents, 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.”  

(Emphasis supplied)  

The attempt of the State to contend that the brothers  

had equal share of land in the village records and  

therefore, the appeal should be proceeded with did  

not appeal to the court.  This Court further  

proceeded to observe that the brother has made a

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joint claim and had a joint decree and the frame of  

the appeal was with reference to the decree  

challenged.  The appeal failed.  It will be  

immediately noticed that this was a case which  

involved Order XXII Rule 4.  Order XXII Rule 4 reads  

as follows:  

“4. Procedure in case of death of one of  

several defendants or of sole defendant -  

   (1) Where one of two or more defendants  

dies and the right to sue does not survive  

against the surviving defendant or  

defendants alone, or a sole defendant or  

sole surviving defendant dies and the right  

to sue survives, the Court, on an  

application made in that behalf, shall  

cause the legal representative of the  

deceased defendant to be made a party and  

shall proceed with the suit.  

   (2) Any person so made a party may make  

any defence appropriate to his character as  

legal representative of the deceased  

defendant.  

  (3) Where within the time limited by law  

no application is made under sub-rule (1),  

the suit shall abate as against the  

deceased defendant.  

(4) The Court whenever it thinks fit, may  

exempt the plaintiff from the necessity of  

substituting the legal representatives of

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any such defendant who has failed to file  

a written statement or who, having filed  

it, has failed to appear and contest the  

suit at the hearing; and judgment may, in  

such case, be pronounced against the said  

defendant notwithstanding the death of  

such defendant and shall have the same  

force and effect as if it has been  

pronounced before death took place.”  

13.  The next decision we would notice is the  

decision in Ram Sarup vs. Munshi & Ors. 1963 (3) SCR  

858.  The case involved the death of one of the  

respondents during the pendency of the appeal filed  

by the State. The question involved was whether the  

right of preemption would continue to be available  

despite the repeal of the Punjab Alienation of Land  

Act, 1900. In one of the civil appeals, the  

pre-emptors who claimed the right of pre-emption who  

were 4 in number, obtained a decree against the  

vendees.  The appellant vendees had purchased the  

property for Rs. 22,750/-.  The appellant Nos.1 and  

2 paid one half amounting to Rs.11,375/-.  The other

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3 appellants paid the other half.  The sale deed  

showed that it was not a case of sale of separate  

items in favour of deceased-appellant but of one  

entire set of properties enjoyed by two set of  

vendees in equal share.  Pending the appeal by the  

appellants vendees, the first appellant died and it  

abated as against him.  In this set of facts this  

Court proceeded to hold that the decree being a joint  

decree and a part of the decree has become final by  

reason of the abatement, the entire appeal would  

abate.  The reasoning was there could be no partial  

pre-emption because pre-emption was the  

substitution of pre-emptors in place of the vendees  

and it was found that if the decree in favour of the  

pre-emptors in respect of the share of the deceased  

vendee appellant had become final there would be two  

conflicting decrees if the appeal were to be allowed  

and the decree of pre-emption insofar as appellants

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2 to 5 were concerned was interfered with.  It must  

at once be noticed that Order XXII Rule 3 provides  

for the converse of Order XXII Rule 4. That is to  

say Order XXII Rule 3 deals with a case where one  

or more plaintiffs or appellants or the sole  

plaintiff or sole appellant dies during the pendency  

of the suit or appeal.  Order XXII Rule 4 on the  

other hand deals with a case where one or more of  

the defendants in the suits or sole defendant or the  

respondents or sole defendant in the appeal dies.   

In both these cases it must be noticed that it is  

a condition precedent for the provisions to apply  

that the right to sue does not survive to the  

remaining plaintiffs/ appellants (Order XXII Rule  

3) or the remaining one or two appellants and right  

to sue does not survive against the defendant or  

defendants in the suit or respondents in the appeal  

alone or the sole defendant or surviving defendants

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dies and the right to sue survives.  It must be noted  

that Order XXII Rule 2 deals with a situation where  

there are more than one plaintiffs and defendants  

and any of them dies and the right to sue survives  

to the surviving plaintiff or plaintiffs alone or  

against the surviving defendant or defendants  

alone, the suit or the appeal shall be proceeded  

against at the instance of the surviving plaintiff  

or plaintiffs/appellant or appellants or against  

surviving defendant or defendants in the  

suit/respondents in the appeal.  

14.  In Ram Sarup vs. Munshi & Ors. (supra), nine  

persons instituted a suit for ejectment and recovery  

of rent against two defendants.  The suit was  

decreed.  In an appeal by the defendants, the decree  

of the Trial Court was set aside against the second  

defendant.  During the pendency of the second

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appeal filed by all the plaintiffs, one of them died.   

His LRs were not brought on record and the appeal  

abated as far as such appellant was concerned.  The  

objection raised by the respondents that the appeal  

could not be proceeded with as the appeal abated as  

a whole, was accepted. An attempt was made under  

Order XXII Rule 2 by contending that the nine  

appellants constituted a Joint Hindu Family and on  

the death of one of the appellants, the right to sue  

survived in favour of the remaining appellants, as  

at that time the Hindu Succession Act had not been  

passed, was repelled on facts by holding that the  

appellants did not constitute a Joint Hindu Family.   

Further attempt to draw support from Order XLI Rule  

4, namely, that the appeal proceeded on a ground  

common to all the plaintiffs and defendants, and any  

one of the plaintiffs /defendants may appeal from  

the whole decree and the decree could be reversed

25  

or varied in favour of the plaintiffs or defendants  

was not accepted as it was found that Order XLI Rule  

4 only enabled one of the plaintiffs/defendants to  

file an appeal and it would not apply in a case where  

all the plaintiffs had filed the second appeal.  The  

Court took the view that the appeal abated as a whole  

as all the appellants had a common right in getting  

an ejectment against the second defendant and such  

a decree was on a ground common to all of them.  It  

was further found that the defendants could not be  

ejected from the premises when he had a right to  

remain in occupation on the basis of a decree holding  

that a deceased-appellant, one of the persons having  

joint interest in letting out property could not  

have ejected him.  It was further held that it was  

not possible for the defendant to continue as tenant  

of one of the landlords and not as a tenant of the

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others when all of them had a joint right to eject  

or to have him as their tenant.  

15.  In the judgment of this Court in Harihar  

Prasad Singh and Others vs. Balmiki Prasad Singh and  

Others  1975 (1) SCC 212, the issue involved was the  

acceptability of a custom set up by the plaintiff  

was that they were Bhumidar Brahmins by caste and  

under which custom more distant heirs than the  

shastric heirs also joined the latter in succession  

of a separate male member dying without any issue  

and leaving any widow.  A preliminary objection was  

also raised that the appeal itself abated under the  

following facts:  

Plaintiff No.29 died in 1953.  His widow and son  

were substituted.  With the coming into force of  

the Hindu Succession Act, the share of the widow  

in her husband’s estate became a full estate.  

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The widow, in turn, died in 1967.  She left  

behind her daughter and her son.  The son had  

already been impleaded upon the death of his  

father.  The decree it was pointed out was one  

and indivisible and the whole appeal had abated,  

upon the widow dying not having impleaded her  

daughter, the whole appeal abated.  This  

argument was repelled after referring to all the  

authorities.  This Court in Harihar Prasad Singh  

and Others vs. Balmiki Prasad Singh and Others  

(Supra) took the view inter alia as follows:  

“32.   The important point to note about  

this litigation is that each of the  

reversioners is entitled to his own  

specific share. He could have sued for his  

own share and got a decree for his share.  

That is why five title suits Nos.53 and 61  

of 1934 and 20, 29 and 41 of 1935 were filed  

in respect of the same estate. In the  

present case also the suit in the first  

instance was filed by the first and second  

plaintiffs for their one-twelfth share.  

Thereafter many of the other reversioners  

who were originally added as defendants  

were transposed as plaintiffs. Though the

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decree of the trial Court was one, three  

appeals Nos.326, 332 and 333 of 1948 were  

filed by three sets of parties. Therefore,  

if one of the Plaintiffs dies and his legal  

representatives are not brought on record  

the suit or the appeal might abate as far  

as he is concerned but not as regards the  

other plaintiffs or the appellants.”  

(Emphasis Supplied)  

16.  The last judgment we would like to refer to  

is the judgment relied on by the appellants and that  

is the judgment of the Constitution Bench in Sardar  

Amarjit Singh Kalra (Dead) by LRS. & Ors. vs. Pramod  

Gupta (Smt.)(Dead) by LRS. & Ors. 2003 (3) SCC 272.   

In the said judgment the matter arose under the Land  

Acquisition Act.  The facts set out indicate inter  

alia that a joint appeal was filed by a number of  

proprietors.  However, the court found that they  

had distinct and independent claims.  The three  

different categories of claimants before the Land  

Acquisition Collector were noted as follows:

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“3. An extent of about 5500 bighas of  

land described as “gair mumkin Pahar”  

(uncultivable mountainous area) situated  

at Masudpur Village within the Union  

Territory of Delhi was acquired by the  

Government for planned development of  

Delhi. Notifications were issued: (1) on  

24.10.1961 for acquisition of 720 bighas  

and 4 biswas out of 4307 bighas and 18  

biswas under Section 4 of the Land  

Acquisition Act, 1894 (hereinafter  

referred to as “the Act”). It may be stated  

at this stage itself that an extent of 390  

bighas of land notified on 24.10.1961 and  

acquired by passing the award in Award  

No.1944 does not form the subject-matter of  

these proceedings. Declarations under  

Section 6 of the Act were issued on  

6.8.1966. In the course of the award  

enquiry claims were filed before the Land  

Acquisition Collector by three categories  

of claimants as hereunder:   

i) Claims by the Union of India and the  Gaon Sabha that the lands acquired  

stood vested with the Gaon Sabha they  

being “wasteland” under Section 7 of  

the Delhi Land Reforms Act, 1954.  

This claim proceeded on the basis  

that not only was it ̀ waste land' but  

also the Bhumidari Certificate  

issued in favour of Smt. Gulab  

Sundari was invalid and non est in  

law.   

ii) The other class of claims were from  the Proprietors/co-owners on the  

basis that the acquired land was not  

“land” as defined under Section  

3(13) of the Delhi Land Reforms Act,  

since they were being used for

30  

non-agricultural purposes and  

therefore, they neither could be  

said to be “wasteland” nor could be  

held to have vested in the Gaon  

Sabha, for either of them to claim  

any title to the lands in question  

and, therefore, they continued to be  

proprietors of the soil and as such  

entitled to the compensation for  

themselves.  

iii) Yet another claim was from Smt. Gulab  Sundari and her transferees of  

portions of the rights over the land  

on the ground that she was the  

Bhumidhar of the land measuring  

about 4307 bighas and 18 biswas and  

those lands were part of her  

bhumidhari-holding out of which she  

also claimed to have transferred  

rights in an extent of 3500 bighas of  

undivided holding in favour               

of the other private respondents  

claimants.”  

There were three sets of appeals.  This Court  

proceeded to notice the entire case law.  Paragraph  

25 and 26 of the said judgment is extracted  

hereinbelow:  

“25. ……….The claim of each one was in  

respect of his distinct, definite and  

separate share and their respective rights  

are not interdependant but independent.  

Among themselves there is no conflicting or  

overlapping interest and the grant of

31  

relief to one has no adverse impact on the  

other(s). The mere fact that there was no  

division by metes and bounds on state of  

ground is no reason to treat it to be a joint  

right-indivisible in nature to be asserted  

or vindicated only by all of them joining  

together in the same proceedings, in one  

capacity or the other. As a matter of fact,  

separate claims seem to have been filed by  

them before the Reference Court in respect  

of their own respective share. Even if they  

have engaged a common counsel or even if  

they have filed one claim in respect of  

their specified separate share, it could  

not have the effect of altering the nature  

of their claim or the character of their  

right so as to make it an indivisible joint  

right. Though the Reference Court has  

decided all such claims together, having  

regard to the similarity or identical  

nature of issues arising for consideration  

of the claims, in substance and reality the  

proceedings must be considered in law to be  

of multifarious claims disposed of in a  

consolidated manner resulting in as many  

number of awards of the Reference Court as  

there were claimants before it. There was  

no community of interest between them and  

that each one of them in vindicating their  

individual rights was not obliged to  

implead the other claimants of their shares  

in one common action/proceeding and the  

orders/judgment though passed in a  

consolidated manner, in law, amounts to as  

many orders or judgments as there were  

claimants and, by no reason, can it be  

branded to be a joint and inseverable one.  

Similarity of the claims cannot be a  

justification in law to treat them as a  

single and indivisible claim for any or all

32  

purposes and such a thing cannot be  

legitimately done without sacrificing the  

substance to the form. The claim on behalf  

of the respondents that the compensation  

awarded is of a lump sum, though shares are  

divided, is belied by the scheme underlying  

Sections 11, 18, 30 and 31 of the Act, and  

cannot be countenanced as of any merit.  

Against the Award of the Reference Court in  

this case, it was possible and permissible  

in law for every one of the appellants to  

file an appeal of his own separately in  

respect of his share without any need or  

obligation to implead every other of the  

claimants like him, as party-respondent or  

as co-appellant, because there is no  

conflicting interest or claims amongst  

them inter se. As such, the alleged and  

apprehended fear about possible  

inconsistent or conflicting decrees  

resulting therefrom if the appeals are  

proceeded with and disposed of on merits  

has no basis in law nor is well founded on  

the facts and circumstances of these cases.  

Even if the appellants succeed on merits,  

dehors the fate of the deceased appellants  

the decree passed cannot either be said to  

become ineffective or rendered incapable  

of successful execution. To surmise even  

then a contradictory decree coming into  

existence, is neither logical nor  

reasonable nor acceptable by courts of Law.  

Otherwise, it would amount to applying the  

principle of vicarious liability to  

penalize someone for no fault of his and  

denial of one’s own right for the mere  

default or refusal of the other(s) to join  

or contest likewise before the court. The  

fact that at a given point of time all of  

them joined in one proceedings because one

33  

court in the hierarchy has chosen to club  

or combine all their individual and  

separate claims for the purpose of  

consideration on account of the similarity  

of the nature of their claims or that for  

the sake of convenience they joined  

together for asserting their respective,  

distinct and independent claims or rights  

is no ground to destroy their individual  

right to seek remedies in respect of their  

respective claims. In cases of this nature,  

there is every possibility of one or the  

other among them subsequently reconciling  

themselves to their fate and settle with  

their opponents or become averse to pursue  

the legal battle forever so many reasons,  

as in the case on hand due to  

disinterestedness, indifference or  

lethargy and, therefore, the attitude,  

approach and resolve of one or the other  

should not become a disabling or  

disqualifying factor for others to  

vindicate their own individual rights  

without getting eclipsed or marred by the  

action or inaction of the others……….”  

“26.  Laws of procedure are meant to  

regulate effectively, assist and aid the  

object of doing substantial and real  

justice and not to foreclose even an  

adjudication on merits of substantial  

rights of citizen under personal, property  

and other laws. Procedure has always been  

viewed as the handmaid of justice and not  

meant to hamper the cause of justice or  

sanctify miscarriage of justice. A careful  

reading of the provisions contained in  

Order 22 CPC as well as the subsequent  

amendments thereto would lend credit and

34  

support to the view that they were devised  

to ensure their continuation and  

culmination in an effective adjudication  

and not to retard the further progress of  

the proceedings and thereby non-suit the  

others similarly placed as long as their  

distinct and independent rights to  

property or any claim remain intact and not  

lost forever due to the death of one or the  

other in the proceedings. The provisions  

contained in Order 22 are not to be  

construed as a rigid matter of principle  

but must ever be viewed as a flexible tool  

of convenience in the administration of  

justice. The fact that the Khata was said  

to be joint is of no relevance, as long as  

each one of them had their own independent,  

distinct and separate shares in the  

property as found separately indicated in  

jamabandi itself of the shares of each of  

them distinctly……………”  

Thus, the Court highlighted the need to apply laws  

of procedure in a manner so that substantial justice  

is facilitated. The Court further held as follows:  

“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

35  

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. As observed in Nathu Ram case  

(supra) itself, the Code does not itself  

provide for the abatement of the appeal  

against the other respondents even where,  

as against one such it has abated but it is  

only the courts which have held that in  

certain circumstances the appeal also  

would abate against a co-respondent as a  

result of abatement against the deceased  

respondent. The same would be the position  

of an appeal vis-a-vis the appellants, as  

in the other cases. Order 22 Rule 4 also was  

considered not to provide for abatement of  

the appeal(s) against the co-respondents  

of the deceased respondent and it was  

specifically observed therein that to say  

that the appeals against them also abated  

in certain circumstances is not a correct  

statement. It was held that the appeals  

against such other respondents cannot be  

proceeded against and, therefore, had to be  

dismissed, in certain circumstances.”  

      (Emphasis Supplied)  

“34. In the light of the above discussion,  

we hold: -   

(1) Wherever the plaintiffs or appellants  

or petitioners are found to have distinct,

36  

separate and independent rights of their  

own and for 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 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

37  

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.”   

        (Emphasis Supplied)  

17.  Is this a case when the appellant and his  

brother were having distinct and independent claims  

and rights and for the sake of convenience they had  

joined as plaintiffs originally in the suit and as  

appellants subsequently in the appeal?  Is this a  

case where there is joint decree or is it is a case  

where the decree is severable?  Is it therefore a  

severable decree or a combination of two decrees?   

Whether the decree if passed by the appellate court

38  

in favour of the appellant would result in a decree  

which is contradictory to the decree passed by the  

trial Court.  

18.  In this case, undoubtedly as we have noted  

the appellant and his late brother sued as  

plaintiffs for a declaration that the first  

defendant was not the adopted son and he has no  

rights.  They also sought a prohibitory injunction.   

The suit stood dismissed by trial court.  Let us  

take the converse position.  Assuming that the suit  

was decreed by the trial court and appeal was carried  

by the defendants, and pending the appeal by the  

defendants, if the late brother of the appellant had  

died and if the defendants had not impleaded the  

legal representatives of late brother and the appeal  

abated as against him, would it then not open to the  

appellant as respondent in the appeal to contend

39  

that if the appeal was to be allowed to proceed in  

the absence of the legal representatives of his late  

brother and succeed, there would be an inconsistent  

decree. On the one hand, there will be a decree by  

the trial Court declaring that the first defendant  

was not the adopted son and had no interest in the  

property qua the late brother of the appellant.  On  

the other hand, the appellate court could be invited  

to pass a decree which should be to the effect that  

the first defendant was found to be the adopted son  

and had right and interest over the property and a  

declaration to that effect would have to be granted.   

Would not the appellate court then have to  

necessarily hold though the decree in favour of the  

deceased brother of the appellant has become final,  

and under it, a declaration is granted that the  

defendant No.1 is not the adopted son and he has no  

right to claim the property and there is an

40  

injunction against him that he is the adopted son  

opposed to the decree which has been passed by the  

trial court which has attained finality.  We would  

think that the appellate court would indeed have to  

refuse to proceed with the appeal on the basis that  

allowing the appeal by the defendants would lead to  

an appellate decree which is inconsistent with the  

decree which has become final as against the  

deceased brother of the appellant.  

19.  We would think that the situation cannot be  

any other different, when we contemplate the  

converse of the aforesaid scenario which happens to  

be the factual matrix obtaining in this case. The  

right which was set up by the appellant alongwith  

his late brother was joint.  They were members of  

the joint Hindu family consisting of their late  

father and which consisted of late Govindareddi,

41  

their father Shriram Reddy and Basavareddi, who was  

none other than the husband of the second defendant.   

This is not a case where their claims were distinct  

claims.  This is not the situation which was present  

in the case dealt with by the Constitution Bench  

under the land acquisition case.  Therein, several  

persons came together and sought relief in one  

proceeding.  We would think that this is not the  

position in this case.  

20.  It may be true that if a separate suit had  

been filed by the late brother and it had abated on  

his death, there will be no decree on merits and the  

suit would have abated. No doubt, it could be argued  

that even though the appellant and his late brother  

set up the case of joint right, it would only mean  

that they are co-owners of the property, and  

therefore, they had independent rights as co-owners

42  

which could be canvassed in two different  

proceedings, and therefore, the decree of the trial  

court dismissing the suit be treated as two  

different decrees - one decree against the appellant  

and the other against his late brother. Even then,  

the decree, which the High court would be invited  

to pass, would be contradictory and inconsistent  

with the decree as against late brother of the  

appellant which may not be permissible in law.    

21.  The decree, which the appellant, if  

successful in the appeal, would obtain, would be  

absolutely contrary to the decree which has also  

attained finality between his late brother and the  

defendants.  They are mutually irreconcilable,  

totally inconsistent.  Laying one side by side, the  

only impression would be that one is in the teeth

43  

of the other.  In one, the suit is dismissed whereas  

in the other, the suit would have been decreed.    

22.  The argument that in view of the order passed  

on 10/09/2001 by which despite the death of late  

brother of the appellant, permission to prosecute  

the appeal was granted by the court there would arise  

an estoppel against the order being passed holding  

that the appeal has abated as a whole, cannot be  

accepted.  The impact of death of the late brother  

of the appellant qua the proceeding is one arising  

out of the incompatibility of a decree which has  

become final with the decree which the appellant  

invites the appellate court to pass.  In such  

circumstances, the mere fact that the appellant was  

permitted to prosecute the appeal by an  

interlocutory order would not be sufficient to tide  

over the legal obstacle posed by the inconsistent

44  

decree which emerges as a result of the failure to  

substitute legal representative of the late brother  

and the abating of the appeal filed by his late  

brother.  Consequently, we see no merit in the  

appeal.  It is accordingly dismissed.  

…………………………………………J.

(Ashok Bhushan)  

………………………………………J.                                              

(K.M. Joseph)  

New Delhi;  May 07, 2019