The judgment of the Apex Court in the case of “Mohd
Hussain” (supra), may be applicable to the facts of the case
insofar as the Special Civil Suit is concerned. In the said suit
when the original defendant no. 3 namely Aniquinha Maria
Apolonia Pereira died, her heirs and legal representatives were
all brought on record. One of the said heirs and legal
representatives namely Smt. Catherina Ana D'Souza e Dias also
died on 23/09/1994 i.e. during the pendency of the said suit. The
final Judgment came to be passed in the said suit on 29/04/1999,
without deleting the name of the deceased defendant namely
Smt. Catherina Ana D'Souza e Dias and without bringing on
record the other heirs and legal representatives of the said
deceased Catherina on record. However, since admittedly the
husband of deceased Catherina, namely Francisco was already
on record, thereby representing her estate, applying the ratio of
the Judgment of the Apex Court in the case of “Mohd Hussain”
(supra), the said Special Civil Suit could not be held to have
been abated.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 99 OF 2009
Shri Naveen Shanker Lokure,V Shri Nascimento Milgares Pereira,
CORAM :- U. V. BAKRE, J.
Pronounced on: 19th September, 2014.
Citation;AIR2015(NOC)156 Bom
Heard Mr. Usgaonkar, learned Counsel appearing on
behalf of the appellants and Mr. D'Costa, learned Senior Counsel
appearing on behalf of the respondents no. 1, 2 and 10(a) to
10(d), 10(e) to 10(g).
2.
This Second Appeal is directed against the judgment
and decree dated 19/05/2009 passed by the learned District
Judge-4, South Goa, Margao (First Appellate Court, for short) in
Regular Civil Appeal No. 70/1999. The said Regular Civil Appeal
No. 70/1999 was filed against the judgment and decree dated
29/04/1999 passed by the learned Civil Judge, Senior Division,
Margao (trial Judge, for short) in Special Civil Suit No.
32/1972/A. The appellant was the defendant no. 2(a) and legal
representative No. 1(a) of the original defendant no. 1, whereas
the respondents no. 1 to 26 were the legal representatives of the
original plaintiffs, in the said Civil Suit. Parties shall, hereinafter,
be referred to as per their status in the said suit.
3.
The original plaintiffs namely Jose Francisco Pereira
and his wife Ana Francisca Dias had filed the said suit for a
declaration that they are exclusive owners in possession of the
property referred in paragraph (1) of the plaint, including the
disputed area allegedly purchased by the defendants no. 1 and 2
namley
Shankar
Krishnappa
Lokure
and
Shivagundappa
Krishnappa Lokure from the defendant no. 3, namely Aniquinha
Maria Apolonia Dias. The plaintiffs had also prayed for recovery
of possession of the said portion and for declaration that the sale
deed in favour of the defendants no. 1 and 2 is null and void and
for payment of compensation, etc. Inter alia, the plaintiffs
claimed that the original transferor of the suit property in favour
of the defendants no. 1 and 2 i.e. the defendant no. 3 had no title
to the suit property. By judgment and order dated 29/04/1999,
the said suit was dismissed. Plaintiffs filed Regular Civil Appeal
No. 70/1999 against the judgment and decree of the trial Judge.
4.
The original defendant no. 3 had died during the
pendency of the suit and her legal representatives, namely Jose
Filomena Dias alias Joseph Michael Dias and his wife Mrs. Cintia
Dias, together as 3(i); Francisco Rosario Dias alias Frank Dias
and his wife, Mrs Catherina Ana Dias, together as 3(ii) along
with
other legal representatives at serial nos. 3(iii), 3(iv) and
3(v) were brought on record, in the said suit. However, the legal
representative Mrs. Catherina Ana Dias had also expired during
the pendency of the suit on 23/09/1994.
However,
her heirs
were not brought on record. Since, the husband of the said Mrs.
Catherina, namely Francisco Rosario Dias was on record, there
was no abatement of the suit. In the Regular Civil Appeal No.
70/1999,
the deceased Mrs. Catherina Dias was, however,
impleaded as the respondent no. 7, as if she was alive. During
the pendency of the said Regular Civil Appeal, the husband of
the said deceased Catherina Dias, namely Francisco Rosario
Dias impleaded as respondent no. 6, died on 01/02/2002. The
legal representatives of the deceased Francisco Rosario Dias
were not brought on record, in the said Regular Civil Appeal No.
70/1999. Thus the Regular Civil Appeal No. 70/1999, has been
decided against two dead persons. In the circumstances above,
one of the substantial questions of law which arises in the
present appeal and is formulated by consent of both the parties,
is as follows :
“Whether
the
judgment
and
decree
dated
19/05/2009 allowing the First Appeal filed by the
respondents no. 1 to 11 herein, is a nullity being
the judgment and decree against the dead person
as original defendant no. 3(ii) i.e. respondent no.
31 had expired during the pendency of the appeal
on 01/02/2002 and his wife also impleaded as
original defendant no. 3(ii) i.e. respondent no. 32
herein, had expired on 23/04/1994 during the
pendency of the suit before the trial Court.”
5.
Mr. Usgaonkar, learned Counsel appearing on behalf
of the defendant no. 1(a) or 2(a) submitted that since Francisco
Rosario Dias, the defendant no. 3(ii) had died during the
pendency of the Regular Civil Appeal and though he had legal
representatives, they were not brought on record, there was
abatement
of
the
said
appeal
as
against
the
deceased
SA99/09
14
respondent no. 6 and his wife i.e. respondent no. 7 (defendants
no. 3(ii). He relied upon the following judgments :
(i)
Amarsangji Indrasangji Vs. Desai Umed,
[1925 Bombay 290]
(ii) The State of Punjab Versus Nathu Ram,
[(1962)2 SCR 636]
(iii) Udi Ram Vs. Dharam Chand, [AIR 1994
Rajasthan 187]
(iv) Budh Ram and others Vs. Bansi and others,
[(2010)11 SCC 476]
(v) Judgment of this Court dated 21/03/2013 in F.A.
No. 267 of 2005.
6.
On the other hand, Mr. D'Costa, learned Senior
Counsel submitted that after the death of original defendant no.
3
namely
Aniquinha
Maria
Apolonia
Pereira,
her
legal
representatives were all duly brought on record and, therefore,
the estate of the defendant no. 3 was duly represented in the
suit. He submitted that the fact regarding the death of Catherina
as well as Francisco [defendants no. 3(ii)] was not brought to the
notice of the Court and, therefore, the legal representatives
could not be brought on record, in the suit as well as in the
appeal.
He submitted that since the estate of the original
defendant no. 3 was duly represented, the appeal could not
abate.
He
submitted
that
in
the
Regular
Civil
Appeal,
respondents no. 8, 9, 10, 11 and 12 represented the estate of the
original defendant no. 3.
He relied upon the judgment of
Supreme Court in the case of “Mohd. Hussain (dead) by LRs.
and others Vs. Occhavlal and others”, [(2008)3 SCC 232].
7.
I
have
perused
the
material
on
record
and
considered the arguments advanced by the learned Counsel for
the parties.
8.
In the case of “Mohd. Hussain (Dead) by L.R.s”
(supra), one of the questions to be decided was as under:
(I) Whether the second appeal of Respondents herein,
who were the appellants in the High Court, had
abated as they had failed to make an application to
bring the legal heirs and representatives of Mohd.
Hussain, one of the respondents in the High Court
who had died during the pendency of that second
appeal ?
Said Mohd. Hussain had died on 19/11/1991 and the
application for substitution after setting aside abatement caused
on the death of Mohd. Hussain was filed by the appellants in the
second
appeal
to
bring
on
record
his
heirs
and
legal
representatives on 03/03/1992 after the Judgment was already
signed by the learned Judge. Admittedly, some of the heirs and
legal representatives of Mohd. Hussain were already on record
in the file of the second appeal. It was held that the question of
abatement of the second appeal on the death of Mohd. Hussain
could not
arise at all as
some of his
heirs
and legal
representatives were admittedly on record. It was held that only
the question of noting the death of Mohd. Hussain could arise
and his name could be deleted from the array of the respondents
in the second appeal and the rest of the heirs and legal
representatives who were not brought on record could be added
in the cause-title of the memorandum of appeal. It was held that
it would be considered too technical to set aside the entire
judgment of the High Court on the ground of not bringing the
entire body of heirs and legal representatives of Mohd. Hussain
because some of his heirs and legal representatives were on
record and the left out heirs and legal representatives were
sufficiently represented by the other heirs on record.
9.
The judgment of the Apex Court in the case of “Mohd
Hussain” (supra), may be applicable to the facts of the case
insofar as the Special Civil Suit is concerned. In the said suit
when the original defendant no. 3 namely Aniquinha Maria
Apolonia Pereira died, her heirs and legal representatives were
all brought on record. One of the said heirs and legal
representatives namely Smt. Catherina Ana D'Souza e Dias also
died on 23/09/1994 i.e. during the pendency of the said suit. The
final Judgment came to be passed in the said suit on 29/04/1999,
without deleting the name of the deceased defendant namely
Smt. Catherina Ana D'Souza e Dias and without bringing on
record the other heirs and legal representatives of the said
deceased Catherina on record. However, since admittedly the
husband of deceased Catherina, namely Francisco was already
on record, thereby representing her estate, applying the ratio of
the Judgment of the Apex Court in the case of “Mohd Hussain”
(supra), the said Special Civil Suit could not be held to have
been abated.
10.
But, in the Regular Civil Appeal No. 70/1999 also said
Catherina Ana D'Souza e Dias had been shown as alive and as
respondent no. 7. Her heirs and legal representatives were not
on record in the said Regular Civil appeal. During the pendency
of the said Regular Civil appeal, even the respondent no. 6,
namely Shri Francisco Rosario Dias, the husband of the
deceased respondent no. 7, died. The said deceased respondents
no. 6 and 7 were two of the heirs and legal representatives of
SA99/09
18
deceased original defendant no. 3. The other heirs and legal
representatives of the said deceased original defendant no. 3
were on record as respondents no. 8, 9, 10 and 11. But these
respondents no. 8, 9, 10 and 11 are not the heirs and legal
representatives of deceased respondents no. 6 and 7. The heirs
and legal representatives of deceased respondents no. 6 and 7
were not
brought on record in the said Regular Civil Appeal.
Hence the said Regular Civil Appeal No. 70/1999 had abated, as
against the deceased respondents no. 6 and 7. The Judgment of
the Apex Court in the case of “Mohd Hussain” (supra), is not
applicable to the Regular Civil Appeal No.70/1999.
11.
In the Special Civil Suit No. 32/1972/A, the original
plaintiffs i.e. the respondents no. 1 and 2 of the present second
appeal had claimed that the original transferor of the suit
property to the defendants no. 1 and 2 i.e. the defendant no. 3,
Aniquinha Maria Apolonia Dias, had no title to the suit
properties and they be declared as owners in possession of the
suit property. The said suit was dismissed. Due to the dismissal
of the said suit, the position was that the sale deed by which the
original defendant no. 3 sold the portion of the property to the
defendants no. 1 and 2 became valid and legal. However, vide
Judgment passed in the Regular Civil Appeal No. 70/1999, the
SA99/09
19
suit of the plaintiffs was partly decreed to the extent of the
property shown by Shri Rui Rebeiro in Exhibit PW10/A.
But the
said decree in Regular Civil appeal No. 70/1999 was against
dead persons namely the respondents no. 6 and 7. Thus, insofar
as
the heirs and legal representatives of the respondents no. 6
and 7 [defendants no. 3(ii)], who were not brought on record,
are concerned, the decree of dismissal of said Special Civil Suit
No. 32/1972/A remained intact. The sale deed by which the
original defendant no. 3 sold the property to the defendants no.
1 and 2 remained good with regard to the heirs and legal
representatives of respondents no. 6 and 7 i.e. the defendants
no. 3(ii), but was set aside as against the other heirs and legal
representatives namely the respondents no. 4, 5, 8, 9, 10 and 11
i.e. the defendants no. 3(i), 3(iii), 3(iv) and 3(v). The Regular
Civil
Appeal No. 70/1999 between the appellants and the
respondents, therein, besides being against the dead persons,
without participation of the heirs and legal representatives of
deceased Francisco Rosario Dias and his wife Catherina Ana
D'Souza e Dias could not be said to be properly constituted or
could not be said to have all the necessary parties for the
decision of the controversy before the First Appellate Court.
Since the said respondents no. 6 and 7 were deceased and their
heirs and legal representatives were not brought on record, the
SA99/09
20
said appeal cannot be said to be properly constituted.
The
decree in favour of the plaintiffs in Regular Civil Appeal No
70/1999 cannot be successfully executed since the same is not
binding on the heirs and legal representatives of deceased
respondents no. 6 and 7. The said success of the said appeal has
led to the First Appellate Court's coming to a decision which is in
conflict with the decision of the trial Court between the
appellants and the deceased respondents, since as far as the
deceased
respondents
are
concerned,
the
suit
has
been
dismissed but as far as the other respondents are concerned, the
suit has been partly decreed. Therefore, the failure of bringing
on record the heirs and legal representatives of deceased
respondents no. 6 and 7, in Regular Civil Appeal No. 70/1999 led
to the Court's passing a decree which is contradictory to the
decree which had become final with respect to the same subject
matter between the appellant and the deceased respondents.
The appellants in Regular Civil Appeal No. 70/1999 could not
have brought the action for the necessary relief against those
respondents alone who were still before the Court. The decree
of dismissal of the suit, passed by the trial Court was joint
and
indivisible
one. The decree of allowing the suit partly,
passed in Regular Civil Appeal No. 70/1999, was against dead
persons.
12.
In the case of
“Nathu Ram” (supra), the Hon'ble
Supreme Court has, inter alia, held thus:
“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
SA99/09
22
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.”
13.
In the case of “Budh Ram and Ors.” (supra), the
Hon'ble Supreme Court has held as follows:
“17. Therefore, the law on the issue stands
crystallised to the effect as to whether non-
substitution of LRs of the respondents-defendants
would abate the appeal in toto or only qua the
deceased respondents-defendants, depends upon
the facts and circumstances of an individual case.
Where each one of the parties has an independent
and distinct right of his own, not inter-dependent
upon one or the other, nor the parties have
conflicting interests inter se, the appeal may abate
only qua the deceased respondent. However, in
case, there is a possibility that the Court may pass
a decree contradictory to the decree in favour of
the deceased party, the appeal would abate in toto
for the simple reason that the appeal is a
continuity of suit and the law does not permit two
SA99/09
23
contradictory decrees on the same subject matter
in
the
same
suit.
Thus,
whether
the
judgment/decree passed in the proceedings vis-a-
vis remaining parties would suffer the vice of
being a contradictory or inconsistent decree is the
relevant test.
18. The instant case requires to be examined in
view of the aforesaid settled legal propositions.
Every co-owner has a right to possession and
enjoyment of each and every part of the property
equal to that of other co-owners. Therefore, in
theory, every co-owner has an interest in every
infinitesimal portion of the subject matter, each
has a right irrespective of the quantity of its
interest, to be in possession of every part and
parcel of the property jointly with others. A co-
owner of a property owns every part of the
composite property along with others and he
cannot be held to be a fractional owner of the
property unless partition takes place.
19.
In the instant case a declaratory decree
was passed in favour of respondents-plaintiffs
and Smt Parwatu to the effect that they were co-
owners, though, they had specific shares but
were held entitled to be in "joint possession".
The
appellants/applicants
had
sought
relief
against Smt. Parwatu before the 1st Appellate
court as there was a decree in her favour, passed
by the Trial Court where Smt. Parwatu had been
impleaded
by
the
appellants/applicants
as
proforma respondent. In such a fact-situation,
she had a right to contest the appeal. Once a
decree had been passed in her favour, a right
had vested in her favour. On her death on
19.11.2000, the said vested right devolved upon
her heirs. Thus, appeal against Smt Parwatu
stood abated. In the instant case, the 1st
Appellate Court rejected the application for
condonation of delay as well as the substitution
of LRs of Smt Parwatu, respondent No. 4 therein.
20.
The only question remains as to whether
the appeal is abated in toto or only in respect of
the share of Smt. Parwatu. The High Court has
rightly reached the conclusion that there was a
possibility for the Appellate Court to reverse the
Judgment of the Trial Court and in such an
eventuality,
there
could
have
been
two
contradictory decrees, one in favour of Smt.
Parwatu and the other, in favour of the present
appellants. The view taken by the High Court is
in consonance with the law laid down by this
Court consistently. The facts of the case do not
warrant any further examination of the matter.”
14.
Vide Judgment dated 21/03/2013, passed in First Appeal
No. 267/2005 (Devappa Shaba Naik Dessai and Ors Vs.
Kesar Ganesh Naik Dessai and Ors), this Court, in paragraph
13 thereof, has held as under :
“13. In the case of “Udai Ram” (supra), during
the pendency of
appellate
appeal
Court,
before
one
respondents namely
1/3/1984 his
of
but
the
the
lower
defendants
Hazari
died
on
legal representatives were
not brought on record at any time. It was
contended
that
Additional
the
appeal
District
before
the
Judge, Chittorgarh had
abated so far as Hazari was concerned and as
the decree
joint
and
remaining
of
dismissal
indivisible
one,
respondents
proceeded and
of
the
suit was
the appeal against
also
could
not
have
the decree having been passed
against dead persons was nullity and cannot be
sustained.
The learned Single Judge of the
Rajasthan High Court
consensus
observed of appears
the
opinion, in such
legal
circumstances, that
to
be
that where
in
an appeal a decree is passed in ignorance of
death of
one of
the defendants
respondents
during the pendency of that appeal, the appeal
abates against the dead person. The High Court in
appeal against such a decree cannot itself set
aside
the abatement
nor
can
it
affirm
the
decree passed by the lower appellate Court. The
proper course in such a case is to set aside the
ineffective decree passed by the lower appellate
Court and remand the case to the court where
abatement has taken place leaving the parties
to take necessary steps
to have the effect of
abatement
set aside if they so desire and if they
can satisfy the Court that parties are entitled to
get the abatement set aside under law. I am in
respectful agreement with the view taken in the
above judgment.”
15.
The learned Senior Counsel for the plaintiffs submits
that the plaintiffs were not aware of the death of the said
parties. In the circumstances above,
Regular Civil Appeal No. 70/1999, the
it appears
decree
that in the
is passed
in
ignorance of death of two of the defendants/respondents, the
respondent no.7 having died during the pendency of the suit and
the respondent no. 6 having died during the pendency of the said
appeal due to which the appeal had abated against the dead
persons. The High Court in Second Appeal against such a decree
cannot itself set aside the abatement nor can it affirm the
decree passed by the lower appellate Court. The proper course
in such a case is to set aside the ineffective decree passed by the
lower appellate Court and remand the case to the court where
abatement
has
necessary steps
taken place
leaving
the parties
to have the effect of abatement
to
take
set aside if
they so desire and if they can satisfy the Court that parties are
entitled to get the abatement set aside under law.
16.
In the result, the substantial question of law as
framed in paragraph 4 above is answered in the affirmative, i.e.
in favour of the defendants. The Judgment and decree dated
19/05/2009, in Regular Civil Appeal No. 70/1999 is quashed and
set aside. The matter is remanded to the First Appellate Court,
leaving
steps
the plaintiffs (appellants thereof)
to have the effect of abatement
to
take necessary
set aside if they so
desire and if they can satisfy the Court that parties are entitled
to get the abatement set aside under law.
17.
Appeal stand disposed of accordingly.
U. V. BAKRE, J.
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