"Here the two brothers who were joint owners had entered into an agreement with the plaintiff to sell their property. The suit was founded upon the said agreement whether for specific performance or for the alternative relief of refund of earnest money. The interest of the two brothers was joint and indivisible in the field in question -- the extent of the share or interest of each being unknown. Could the plaintiff maintain the suit, initially, only against one of the joint owners for any one of the two reliefs? Certainly not. Can it be said that on the death of one of the two joint owners the right to sue survive against the surviving defendant alone? The answer again must be in negative.
Whether a suit abates in its entirety or not always depends upon the nature of the suit and also the nature of the interest of the deceased in the subject matter. When interest of the two defendants in the property promised to be sold was joint indivisible and undefined, on the death of one of them, the suit could not proceed either for specific performance or for refund of earnest money in the absence of legal representatives of the deceased".
Bombay High Court
Annabai Devram Kini And Ors. vs Mithilal Daisangar Singh And Ors. on 3 April, 2002
Equivalent citations: AIR 2002 Bom 332, 2002 (4) BomCR 533, 2002 (3) MhLj 507
Bench: A Shah, V Tahilramani
1. The short question that arises in these two appeals is whether the suit for specific performance of the contract abates in its entirety when one of the plaintiffs being party to a joint, indivisible contract, dies and his heirs and legal representatives are not brought on record within the specified time and whether it is permissible for the heirs and legal representatives of such plaintiff to apply after several years to bring themselves on record and set aside the abatement of the suit only as against the deceased plaintiff.
2. The facts of the case in brief are as follows :--
The present suit for specific performance was filed by the plaintiffs Nos. 1 to 3 on the basis of an agreement of sale in respect of the immovable property described in Exhibit A to the plaint. During the pendency of the suit, plaintiff No. 1 died on 5-4-1997. The plaintiff Nos. 2 and 3 did not take any steps to bring the heirs and legal representatives of the deceased plaintiff on record. On 28-6-2000 a Chamber Summons was taken out by the heirs and legal representatives of the deceased plaintiff No. 1 for bringing them on record in place of plaintiff No. 1 and for setting aside the abatement of suit with regard to plaintiff No. 1. This Chamber Summons was addressed only to defendants. In the affidavit in support of the Chamber Summons it is claimed that the applicants came to know about the suit when they received a letter dated 17-6-2000 from the advocate of the plaintiffs informing them about the suit and asking for names and addresses of the heirs and legal representatives of the deceased plaintiff No. 1. There is no explanation given about the failure on the part of the plaintiff Nos. 2 and 3 to bring the heirs and legal representatives on record within the prescribed time and their inaction for all these years in spite of the death of plaintiff No. 1.
3. The question involved is not a virgin one. There is a catena of decisions on the question of abatement on the death of a party. The question has to be resolved with reference to substantive law also.
4. In State of Punjab v. Nathu Ram, , the State of
Punjab had preferred an appeal to the High Court against the joint award made in favour of two brothers Labhu Ram and Nathu Ram who were the co-respondents to the appeal. During the pendency of that appeal Labhu Ram died and his heirs were not brought on the record. The High Court held that the appeal had abated against Labhu Ram and the effect of such abatement was that the appeal against Nathu Ram also abated. Accordingly the High Court dismissed the appeal. The State moved the Supreme Court which upheld the decision of the High Court. Raghubar Dayal, J., speaking for the Supreme Court, laid down the principles applicable in the following words :
"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 consideration 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 will 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".
5. In Nathu Ram's case three tests were indicated. In Sri Chand v. Jagdish Pershad, AIR 1966 SC 1427, Shah J. (as he then was) speaking for the Supreme Court, observed that the three tests suggested by Raghubar Dayal J. in Nathu Ram's case were not cumulative tests and even if one of them was satisfied, the Court might, having regard to all the circumstances, hold that the appeal has abated in its entirety. All these authorities have been noted and the three principles are once again enunciated in a decision of the Supreme Court in R. P. Gupta v. Murli Prasad, where the principles enunciated in
Nathu Ram's case and the further explanation thereof in Sri Chand's case were quoted with approval by the majority judgment. It may be pointed out that even the minority judgment approves of the principles. Mathew J., who gave the dissenting judgment, only differed from the majority in the application of these principles.
6. In Smt. Sarojdevi and Ors. v. Charushila and Ors., the division bench held that when four persons are co-contractors and file a suit jointly for specific performance of a contract and one of them dies during the pendency of the suit, the right to sue survives jointly with the surviving plaintiffs and the legal representatives of the deceased plaintiff. In other words all those in whom the right to sue survives jointly become necessary parties to the suit. In the event the heirs and legal representatives of deceased plaintiff are not brought on record the suit would abate as a whole. Similar is the view taken by the learned single Judge of this Court in Pandurang Sadashiv Patil v. Pandurang Chimanji Patil, 1983 Mh.LJ. 460 where it was observed in para 8 as under:
"Here the two brothers who were joint owners had entered into an agreement with the plaintiff to sell their property. The suit was founded upon the said agreement whether for specific performance or for the alternative relief of refund of earnest money. The interest of the two brothers was joint and indivisible in the field in question -- the extent of the share or interest of each being unknown. Could the plaintiff maintain the suit, initially, only against one of the joint owners for any one of the two reliefs? Certainly not. Can it be said that on the death of one of the two joint owners the right to sue survive against the surviving defendant alone? The answer again must be in negative.
Whether a suit abates in its entirety or not always depends upon the nature of the suit and also the nature of the interest of the deceased in the subject matter. When interest of the two defendants in the property promised to be sold was joint indivisible and undefined, on the death of one of them, the suit could not proceed either for specific performance or for refund of earnest money in the absence of legal representatives of the deceased".
The above observations would apply with equal force in the instant case with only difference that in the case before the learned single Judge one of the two defendants had died while in the instant case one of the 3 co-plaintiffs had died. The interest of the plaintiffs in the instant case in the subject matter of the suit would abate in its entirety on the failure of the surviving plaintiffs to bring on record the legal representatives of the plaintiff No. 1 within the time prescribed by law.
7. Before the learned single Judge it was argued on behalf of the defendants that taking into account the nature of the suit, the suit as a whole has abated since the plaintiffs Nos. 2 and 3 have not come forward to set aside the abatement and the applicants alone cannot move the court for setting aside the abatement only in respect of the deceased plaintiff. However, the learned Judge without dealing with this contention and without assigning any reasons made the Chamber Summons absolute in terms of prayer clauses (a) to (c). In our opinion the Chamber Summons taken out by the applicants was wholly misconceived and was not maintainable in law and the learned Judge ought not to have granted the Chamber summons.
8. Mr. Shah appearing for the respondents, however, contended that the present Letters Patent Appeal is not maintainable as the order setting aside the abatement does not amount to a judgment within the meaning of Clause 15 of the Letters Patent. He relied upon the decision of the division bench of this court in Maria Flaviana Almeida and Ors. v. Ramchandra Santuram Asavle and Ors., AIR 1938 Bombay 408. In that case the bench has held that word 'judgment' in Clause 15 of the Letters Patent, means a decision which affects the merits of the case between the parties by determining some right or liability. An order setting aside an abatement does not affect the merits of the dispute between the parties, though it certainly determines a right, because in the absence of such order, a person is debarred from suing another for the amount claimed. The order is really one in procedure. Hence no appeal lies from an order setting aside an abatement under Order 22, Rule 9. The learned counsel also referred to the full bench decision in Nurul Hoda v. Amir Khan, taking a similar view. In our
opinion these judgments have no application to the facts of the present case. This is not a simple case of setting aside abatement. In the instant case by the inaction of the plaintiffs Nos. 2 and 3 to bring the heirs of the plaintiff No. 1 on record, the suit has abated as a whole and the Court therefore has no jurisdiction to set aside the abatement, as against only deceased plaintiff. The order of the single Judge creates an anomalous situation since the suit is revived insofar as the plaintiff No. 1 is concerned and abates as against the plaintiff Nos. 2 and 3. Thus the effect of granting of Chamber Summons goes to the very root of the matter and affects valuable rights of the defendants. In Shah Babulal Khimji v. Jayaben D. Kania and Anr., AIR 1981 SC 7786 the Supreme Court while laying down test to assess the definition of word 'judgment' observed that "Another shape which a preliminary judgment may take is that where the trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, e.g. bar of jurisdiction, res judicata, a manifest defect in the suit, absence of notice under Section 30 and the like, and these objections are decided by the trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. Thus such an order even though the suit is alive undoubtedly decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a judgment so as to be appealable to a larger bench." In the light of the above test laid down by the Supreme Court, we have no hesitation in holding that these appeals are maintainable.
9 In the result both the appeals are allowed. Order of the learned single Judge is set aside. The Chamber Summons taken out by the applicants is dismissed.
On the application of the learned counsel for the respondents interim injunction is continued for a period of 12 weeks.
Certified copy expedited.
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