Whether finding of fact can be interfered in second appeal?

Whether the
property was joint Hindu family property or it was self
acquired property of defendant No.1 is a question of fact
and the fact finding Court has given finding against the
appellants. In second appeal it is not possible to interfere
in this finding and it needs to be held all these properties

are the joint Hindu family properties.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 1132 of 2004
 Rajaram Mahadu Dahatonde
Versus
 Babu Mahadu Dahatonde,
 CORAM: T.V. NALAWADE, J.

 DATE : 29th OCTOBER 2015
Citation;2016(2)ALLMR 326


1) The appeal is filed against the judgment and
decree of Regular Civil Appeal No.477/1985 which was
pending in the Court of the learned Additional District
Judge Shrirampur, District Ahmednagar. First Appeal was
filed by the original plaintiff against the judgment and
decree of Regular Civil Suit No.360/1980 which was
pending in the Court of the Civil Judge, Junior Division,
Newasa, District Ahmednagar. The appeal is allowed by
the First Appellate Court and the judgment and decree of
dismissal of partition suit is set aside and the relief of
partition is given in favour of the plaintiff. Both the sides
are heard.
2) The appeal is admitted by this Court (other
Hon'ble Judge) on following substantial question of law:-
" Whether the exemption from bringing on record the
legal representatives of deceased respondent No.2 -
Mukinda cannot be claimed by the respondent No.1 -
Babu without obtaining leave under Rule 4(iv) of Order
22 of C.P.C. in view of "Zahirul Islam vs Mohd. Usman and
others" (2003) 1 Supreme Court Cases 476 and whether
the impugned Judgment is vitiated due to such technical
difficulty ?"
3) The learned counsel for the appellants was
allowed to argue on other points also which are as
under :-
(ii) Whether the Civil Court is bound to draw inference
on the basis of certificate of purchase issued under
section 32-M of the Bombay Tenancy and Agricultural
Lands Act, 1948 that the certificate holder is the absolute
owner of the property and it is his self acquired property
or whether the members of the joint Hindu family can be
allowed to prove in Civil Court that it was joint family
property or whether such dispute needs to be referred to
the Tenancy Court ?
(iii) Whether due to death of a member of the joint Hindu
family who is entitled to have his share on partition the
entire action of partition abates if his legal
representatives are not brought on the record even when
he had admitted the suit claim ?
4) Plaintiff-Babu Mahadu, defendant No.1
Rajaram Mahadu and defendant No.2 Mukinda are real
brothers inter se. Defendant Nos.3 to 6 are heirs of one
deceased brother of plaintiff namely Damodhar and
defendant Nos.7 to 15 are heirs of another deceased
brother of the plaintiff namely Chandrabhan. Father of
plaintiff, Mahadu died in the year 1935. These facts are
not disputed.
5) The suit properties are described in three
groups by plaintiff in the plaint. In plaint para 1-A some
agricultural lands are mentioned and it is the case of the
plaintiff that these lands are left behind by Mahadu and so
they are ancestral and joint Hindu family properties of
plaintiff and defendants. Similar contention is made in
respect of house properties mentioned in plaint para 1-C.
6) It is contended that the agricultural lands
mentioned in plaint para 1-B like Gat Nos.475, 202, 496
situated at village Chanda were with Mahadu as tenant
and under the Bombay Tenancy Act certificate of purchase
is granted. It is contended that after the death of Mahadu,
all the sons of Mahadu cultivated the lands as the
property of joint Hindu family and on the relevant date
they all were cultivating the land and so certificate issued
under section 32-M of the Bombay Tenancy and
Agricultural Lands Act, 1948 (for short, "the Bombay
Tenancy Act") in the name of defendant No.1 was issued
for all the members of the joint family and it was issued in
the name of defendant No.1 as Karta of this joint Hindu
family. It is also contended that the purchase price of
these three lands was paid out of the income of joint
Hindu family property. All the properties are situated in
village Chanda.
7) It is the case of the plaintiff that the sons of
Mahadu started living separate from each other in the
year 1972 in different houses of the joint Hindu family but
they did not partition the properties. It is his case that the
sons of Mahadu started cultivating different portions of
the lands separately but the lands described in para 1-B
were cultivating jointly.
8) It is the case of the plaintiff that prior to the
suit, he requested defendant No.1 Karta to effect
partition. It is contended that defendant No.1 flatly
refused to do so and so plaintiff was constrained to file the
suit. Plaintiff had prayed for partition and separation of
his 1/5th share in the aforesaid properties.
9) Only defendant No.1, Rajaram contested the
suit and he contended that in view of the contention of
the plaintiff that joint status came to an end in the year
1972, the suit itself is not tenable. He contended that in
the past Regular Civil Suit No.204/1976 was filed by
plaintiff but it was withdrawn. It is contended that cost of
the previous suit as directed by the Court is not paid by
the plaintiff and so the fresh suit is not tenable.
10) Defendant No.1 contended that land Gat
Nos.202, 475, 496, 474, and 498 are owned by him alone.
He contended that land Gat Nos.202, 475, 496 were with
him as tenant and he became purchaser of these 3 lands
under the Bombay Tenancy Act. He contended that land
Gat Nos.474 and 498 came to him in the partition and so
he became owner of these properties. He, however,
contended that 4/5th portion of land Gat No.474 is with
his other brothers since 1978 and he is in possession of
only 1/5th portion of Gat No.474.
11) Defendant No.1 contended that he started
living separate from his brothers in the year 1972 and
since then he has been enjoying his properties separately.
He contended that no joint family remained in existence
after the year 1972 and he was never Karta of such family.
He denied that the purchase price of the aforesaid 3 lands
was paid from the income of the joint Hindu family
property.
12) It is the case of the defendant No.1 that during
implementation of consolidation scheme which was done
in the year 1964, as per separate possession of these
properties, their names were entered in the revenue
record of different lands. It is contended that this record
was never challenged by the plaintiff and other
defendants. Alternate defence was taken by defendant
No.1 that he became owner due to adverse possession.
However, there was on specific pleading on this point.
13) Other defendants including defendant No.2
Mukinda filed consent written statement.
14) Issues were framed by the trial Court on the
basis of the aforesaid pleadings. Both sides gave evidence.
The trial Court had held that the suit is not tenable as cost
of the previous suit, Regular Civil Suit No.204/1976, was
not paid by the present plaintiff prior to the presentation
of the present suit. The trial Court further held that land
Gat Nos.475, 202, 496, 474 and 498 are self acquired
properties of defendant No.1. However, the trial Court
held that the suit was within limitation as it was filed in
the year 1980 when defendant No.1 has taken defence
that there was severance of status in the year 1972.
15) During pendency of the first appeal,
defendant No.2 Mukinda died. No steps were taken to
bring legal representatives of Mukinda on record by the
plaintiff in the first appeal. Attempt was made by the legal
representatives of Mukinda to come on record in the
appeal but their application was rejected by the first
appellate Court. This point was argued for the present
appellant in the first appeal and it was submitted that
entire action is abated. The First Appellate Court has
considered this contention and has indirectly held that
defendant No.2 Mukinda is exempted from the
proceeding. The First Appellate Court has held that land
Gat Nos.474, 498 had come to the share of Mahadu in
partition amongst the brothers of Mahadu and defendant
No.1 had collected the share of Mahadu for all the sons of
Mahadu as Karta. There is also revenue record in that
regard which is being discussed at appropriate place. In
the present appeal, the learned counsel for the appellants
conceded that land Gat Nos.474, 498 had come to the
sons of Mahadu as ancestral property. The First Appellate
Court has held that the other 3 lands mentioned by the
defendant No.1 like Gat Nos.475, 202, 496 are joint Hindu
Family properties and they were being cultivated as
tenant by all the sons of Mahadu. The First Appellate
Court has held that there is no specific pleading of
partition in the written statement of defendant No.1 and
the partition had not taken place prior to the date of suit.
16) For the consideration of rival claims on merit,
some initial contentions, claims made by the defendant
No.1 need to be mentioned first though these claims
are given up now. It was contended by the present
appellants that land Gat Nos.474 and 498 are self
acquired properties of defendant No.1. However, he had
admitted that 1/5th portion of Gat No. 474 is in his
possession since 1978 and other four brothers are in
possession of remaining 5/4th portion of this land. It is
not disputed that previously Gat No.474 was bearing
Survey No.218 and the previously Gat No.496 was
numbered as Survey No.223. Exhibit 42 is the certified
copy of Mutation Nos.959 and 960 and it was sanctioned
in the year 1937. This mutation shows that partition had
taken place amongst 3 branches of Vithoba Babu, Maruti
Lalba and Rajaram Mahadu. As defendant No.1 Rajaram
was son of Mahadu and Mahadu admittedly died in the
year 1935 there was only one possibility that defendant
No.1 represented the branch of Mahadu in the partition
and he claimed share for the branch of Mahadu and as
Karta of joint Hindu family constituted by five sons of
Mahadu. This record shows that defendant No.1 collected
shares in the properties like Survey Nos.194, 215, 218/3
and 223/2. The other circumstances of the case and this
mutation are sufficient to infer that false defence was
taken by defendant No.1 in respect of the properties
mentioned in this mutation that they are self acquired
properties of defendant No.1. It also shows that after the
death of Mahadu, defendant No.1 started acting as
Karta of the joint Hindu family of which all the sons of
Mahadu were members.
17) So far as lands received under the Tenancy Act
are concerned, there is record of following nature.
18) Gat No.475 was having survey No.219 in the
past. The 7/12 extracts of few years starting from 1931-32
are produced. They are up to the period 1940-41 and
again they are for subsequent period like 1961-62. The
record of relevant period, of Tiller's day, is not filed. The
record available shows that name of Mahadu was entered
in crop cultivation column in the year 1935-36 (Exhibit 54)
and the portion of Survey No.219 which was in possession
of Mahadu was given number 219/4. It appears that
submission was made in the trial Court that Mahadu Lalba
mentioned in Exhibit 54 is a different person and this
contention of defendant No.1 was accepted by the trial
Court. It is already mentioned that in Mutation Nos.959
and 960 name of one of the coparceners is mentioned as
Mahadu Lalba. There is one more mutation, Mutation
No.958, which is at Exhibit 53 and it shows that Mahadu
Lalba died on 1-6-1935 leaving behind Karta Rajaram
(defendant No.1) and four more sons. This mutation was
effected in respect of land Survey No.223/2. When there
was such record available, the trial Court committed
mistake in holding that Mahadu Lalba shown in Exhibit 54
was a different person and he was not father of plaintiff
and defendant No.1.
19) The aforesaid record shows that land Survey
No.219/4 was initially with Mahadu, predecessor plaintiff
and defendant No.1 for cultivation. The 7/12 extract
shows that after the death of Mahadu, name of
Chandrabhan, son of Mahadu, was entered in the crop
cultivation column and it was for the years 1937-38, 1938-
39. The record shows that first time in the year 1940-41
the name of defendant No.1 was entered in the crop
cultivation column (Exhibit 55). Thus, on one hand there is
record to show that first Mahadu started cultivating this
land and after him, name of his sons were entered in the
crop cultivation column. At Exhibit 50 there is 7/12 extract
for the years 1961-62 to 1970-71. This document shows
that for the period 1961-62 to 1965-66 the name of only
defendant No.1 was entered in the crop cultivation
column of this land but from 1967-68 onwards names of
all the sons of Mahadu were entered in the crop
cultivation column and they were jointly cultivating this
land. It appears that on the basis of certificate issued
under section 32-M of the Bombay Tenancy Act, defendant
No.1 took steps and then there was revenue proceeding
(there is copy of RTS order on the record) and in the
revenue proceeding the names of brothers of defendant
No.1 were deleted by observing that civil Court can decide
the dispute.
20) There is similar record in respect of land Gat
No.202, old number of this property was Survey No.69/1.
This record also shows that both plaintiff and defendants
were jointly cultivating this property and it came to the
family under Tenancy Act. There is record of Survey
Nos.16 and 17 which shows that name of Chandrabhan
was entered in crop cultivation column. There is record in
respect of other survey numbers also including Survey
No.223 showing that names of all the brothers were
entered in revenue record, in crop cultivation column.
21) In view of the aforesaid record burden was
heavy on defendant No.1 to prove that he alone had
accepted the land for cultivation from the owners. The
record is sufficient to prove that he was Karta of the joint
Hindu family constituted by 4 sons of Mahadu and he
received that status in the year 1935. For many years all
the brothers were shown in crop cultivation column
showing that they were cultivating these so called lands
acquired under tenancy rights, jointly. In view of existence
of the aforesaid record it was necessary for the defendant
No.1 to prove to the satisfaction of the Court that the land
was accepted by him for himself and not for joint Hindu
family. He could have made attempt at least to produce
relevant record of the tenancy proceeding. There is copy
of statement of defendant No.1 on the record given in one
such tenancy proceeding which was in respect of land Gat
No.474 (Old Survey No.219/4). Unfortunately this record
was not called and the original statement was not
confronted to the defendant No.1. In any case the burden
was on the defendant No.1, in view of the facts and
circumstances of the present case, to prove that it is his
self acquired property and he failed to do so. The
aforesaid record and conduct of the defendant No.1 are
sufficient to prove on preponderance of probability that
land Gat Nos.202 and 498 were being cultivated by all
four sons of Mahadu as tenants and land Gat No.475 was
initially with Mahadu for cultivation and after his death
his sons started cultivating this land. This record is
sufficient to hold that the three agricultural lands
mentioned in plaint para 1-B are also joint Hindu family
properties.
22) Learned counsel for the appellants placed
reliance on the decision given by this Court at Principal
Seat in Second Appeal No.375/1993 (between Rajaram
Gopal Govekar and Arjun Gopal Govekar). It appears that
this Court (other Hon'ble Judge) at Principal Seat held
that such proceeding falls under section 70B of the
Bombay Tenancy Act and it needs to be referred to the
tenancy Court. On the basis of this observation, learned
counsel for the appellants submitted that in the present
matter also when there is dispute about certificate
granted under section 32-M of the Tenancy Act, the
dispute ought to have been referred by the Civil Court to
the Tenancy Court. He submitted that it was not open to
the Civil Court to give finding that this property was
cultivated by joint Hindu family and certificate was issued
in favour of defendant No.1 as Karta of the joint Hindu
family.
23) The aforesaid proposition made by the learned
counsel for the appellants is not at all acceptable in this
case. Firstly, the bar of jurisdiction under Bombay
Tenancy Act is applicable only with regard to the subject
matters mentioned in the Bombay Tenancy Act. Secondly,
the bar does not mean that for all purposes the
jurisdiction of Civil Court is taken away. Under the
Bombay Tenancy Act, the tenant's rights are hereditary.
Tenancy rights can be acquired by single person or more
persons or even by joint Hindu family. The disputes which
are between tenant and the landlord are expected to be
considered by the tenancy Court. In the present matter,
the question is, whether the three properties mentioned in
three certificates given under section 32-M of the Bombay
Tenancy Act are joint Hindu family properties. Such
dispute can be and needs to be decided by Civil Court.
This is partition suit and only on the basis of certificate
granted under section 32-M of the Bombay Tenancy Act
defendant No.1 cannot contend that it is his self acquired
property. No such inference is possible when there are
facts and circumstances of the case like present one. This
Court has no hesitation to hold that the dispute of the
present nature cannot be dealt with under the Bombay
Tenancy Act. Reliance is placed on the case reported as
2006 (2) Mh.L.J. 243 (Savitra Bapu v. Rau Rama).
24) When it is proved that at the relevant time the
parties were members of joint Hindu family and they were
having ancestral and joint Hindu family properties, the
burden of proof is on the member who claims that
particular property is his self acquired property. This
burden is more on the Karta of joint Hindu family.
25) In the written statement, defendant No.1 has
not come with specific case of partition. He has only
referred to the contents of plaint and has contended that
there was severance of status. Partition record is in
respect of two properties like Gat Nos.474 and 498
which had come to the share of Mahadu in partition which
had taken place in the year 1937 and so there is no
specific case of partition amongst the plaintiff and
defendants. Mere severance of status of joint Hindu family
cannot change the character of joint Hindu family
property. Thus even if it is presumed that five sons of
Mahadu started living separate as per the case of the
plaintiff, in the year 1972 and they were cultivating some
portions separately, inference of partition cannot be
drawn. There is no specific case of partition of defendant
No.1 and this circumstance goes long way against
defendant No.1. There is voluminous record to show that
these brothers were jointly cultivating the suit properties
and such record is even in respect of the three properties
received under the Bombay Tenancy Act. Whether the
property was joint Hindu family property or it was self
acquired property of defendant No.1 is a question of fact
and the fact finding Court has given finding against the
appellants. In second appeal it is not possible to interfere
in this finding and it needs to be held all these properties
are the joint Hindu family properties.
26) Learned counsel for the respondent/plaintiff
placed reliance on one case reported as 1987(2) Mh.L.R.
968 (Murlidhar Sonar v. Ramchandra Sonar). In this case,
the Bombay High Court has held that burden to prove is
on the Karta when he claims that particular property was
not the property of joint Hindu family. This issue is already
discussed by this Court by quoting Hindu law.
27) The other point which is argued in the present
matter is the circumstance of not depositing the cost
amount in respect of previous suit by the plaintiff. The
trial Court has dismissed the suit on this ground. The first
Appellate Court has held that the Court can grant
permission even after filing of subsequent suit to deposit
such cost. It was contended that steps were taken by the
appellant, plaintiff in the first appellate Court for seeking
such permission and this application was considered by
the first appellate Court along with the appeal. The first
appellate Court allowed the appeal and set aside the
decision given by the trial Court. However, no specific
time was fixed by the first appellate Court for depositing
the cost amount. The cost amount was deposited in the
trial court by the plaintiff in respect of the present suit
on 2-11-2004. On this circumstance this Court has made
order dated 31-1-2007 which is as follows :-
"2. Learned advocate for the appellants would submit
that non-payment of the costs granted while allowing
the earlier suit is a defect which was not cured. He
would further submit that L.Rs. of deceased defendant
No.2 Mukinda were not taken on record and that also
would make the decree unworkable and unexecutable.
Learned advocate for the Respondents would submit
that costs amount is already deposited in the trial
Court on 2.11.2004 during pendency of the Second
Appeal and therefore, defect is cured. Such defect
can be cured in view of the "Awadabai and others Vs.
Parvati and others" (A.I.R. 1990 Bombay 105).
Therefore, the first ground is of no avail. . . ."
28) Relevant provision is Order 23 Rule 1 (3) and
(5) of Civil Procedure Code and it runs as under :-
"1. Withdrawal of suit or abandonment of part claim:
(1) ....
(2) ....
(3) Where the Court is satisfied,--
(a) that a suit must fail by reason of some formal
defect, or
(b) that there are sufficient grounds for allowing
the plaintiff to institute a fresh suit for the subjectmatter
of a suit or part of a claim, it may, on such
terms as it things fit, grant the plaintiff permission to
withdraw from such suit or such part of the claim
with liberty to institute a fresh suit in respect of the
subject-matter of such suit or such part of the claim.
(4) .....
(5) Nothing in this rule shall be deemed to
authorise the Court to permit one of several plaintiffs
to abandon a suit or part of a claim under sub-rule
(1) or to withdraw, under sub-rule (3), any suit or
part of a claim, without the consent of the other
plaintiffs."
29) The aforesaid provision can be considered in
three parts. The first part shows that unless permission is
obtained from the court, on the same subject matter fresh
suit cannot be filed after withdrawal of the first suit. The
second part shows that the court granting permission has
discretion to grant or refuse to grant permission and the
third part shows that Court may or may not impose
condition like payment of cost first before filing of fresh
suit. In the present matter permission was granted subject
to deposit of cost amount. The record shows that the cost
amount was less than Rs.200/-. The other facts show that
entire suit filed for relief of partition and separate
possession was withdrawn. The subsequent suit was filed
within prescribed period of limitation. The previous suit
was contested only by Rajaram (present defendant No.1).
The application for withdrawal was filed on 18-6-1980 and
only defendant No.1 had claimed the cost of the suit for
granting permission. No notice of this application was
given to other defendants when many defendants had
appeared though they had not filed written statement.
30) On aforesaid point, both the sides placed
reliance on the case reported as (1986) 2 SCC 424
(Konkan Trading Company v. Suresh Govind Kamat). In
this case the Apex Court has considered provisions of both
Order 23 Rule 1 and Section 148 of the Civil Procedure
Code. The Apex Court has laid down that even if the order
of payment of cost is a condition precedent for filing fresh
suit, the defect, if any, can be cured by depositing in the
Court the cost within reasonable time and the time can be
fixed by the Court before which the second suit is filed.
The Apex Court has observed that there is no warrant for
taking a hyper technical rigid view which may result in
denying to a person access to justice and deprive him of
his legal rights. It is observed that when it is possible to
take a liberal view which promotes the ends of justice,
such liberal view needs to be taken in such matters. In
view of the relevant facts of the present matter which are
already quoted, this Court holds that on this technical
point present appeal cannot be allowed and the suit filed
for relief of partition cannot be treated as not tenable. On
the basis of the aforesaid record and circumstance it can
be said that the First Appellate Court had granted
permission but no specific time was fixed. The amount
was, however, subsequently deposited and it was a
meagre amount.
31) The last point raised by the learned counsel for
the appellant is about abatement of the first appeal itself.
Learned counsel submitted that original defendant No.2
died during pendency of first appeal and no steps were
taken to bring his legal representatives on record. He
submitted that as defendant No.2 Mukinda was necessary
party, the first appeal ought to have been dismissed. He
placed reliance on provision of Order 22 Rule 4 of the
CPC. The provision of Order 22 Rule 4 is as under :
"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 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.
(5) Where -
(a) the plaintiff was ignorant of the death of a
defendant, and could not, for that reason, make
an application for the substitution of the legal
representative of the defendant under this rule
within the period specified in the Limitation Act,
1963 (36 of 1963), and the suit has, in
consequence, abated, and
(b) the plaintiff applies after the expiry of the
period specified therefor in the Limitation Act,
1963 (36 of 1963), for setting aside the
abatement and also for the admission of that
application under section 5 of that Act on the
ground that he had, by reason of such
ignorance, sufficient cause for not making the
application within the period specified in the
said Act,
the Court shall, in considering the application under
the said section 5 have due regard to the fact of
such ignorance, if proved."
32) It is already mentioned that defendant No.2
Mukinda had filed consent written statement. Further,
the legal heirs of Mukinda had applied in the first
appellate Court for coming on the record as respondent
but the first appellate Court rejected their application.
Name of Mukinda was shown to be deleted. On the basis
of the record, presumption needs to be drawn that no
exemption was sought as provided in the aforesaid
provision. In the present proceeding the legal
representatives have filed affidavit and informed that
plaintiff has no adverse interests against them and they
have no objection for execution of decree given by the
first appellate Court. This was done as it is the grievance
of the present appellant, defendant No.1 that some
properties are in actual possession of Mukinda and they
may create hurdle in execution of the decree. In view of
the affidavit filed that practical difficulty will not be there.
33) Learned counsel for the appellant placed
reliance on some reported cases on aforesaid point. Facts
of the case reported as (1994) 4 SCC 294 (Kenchegowda
v. Siddegowda) show that initially suit was filed for relief
of declaration and attempt was made to convert the suit
for making it a partition suit. In view of the facts and
circumstances, the Apex Court considered the provision of
Order 6 Rule 17 of the CPC. The Apex Court held that
causes of action for these reliefs were different and the
reliefs were also different and there is point of necessary
parties and the absence of the properties which need to
be included in the partition suit. In the case reported as
(2009) 14 SCC 294 (T. Gnanavel v. T.S. Kanagaraj)
exemption to bring legal representatives of sole defendant
was granted after the pronouncement of judgment. These
facts were altogether different. In the present matter
though the first appellate Court had refused to the legal
representatives of Mukinda to come on the record, the
first appellate Court has given finding that the decree can
be executed against them. Thus indirectly the point of
exemption is dealt with by the first appellate Court. The
facts of two reported cases – (1) AIR 2002 Bombay 332
(Annabai Kini v. Mithilal Singh); and, 2003(2) Mh.L.J.
236 (Parvez Rustom v. Rustom Ardeshir) (Bombay High
Court) were altogether different and so there is no need to
discuss the observations made in these two cases.
34) Learned counsel for the respondent, plaintiff,
placed reliance on some reported cases. In the case
reported as AIR 1998 SC 277 (Ram Sakal Singh v.
Mosamat Monako Devi) the facts were altogether
different. Some legal representatives of deceased
defendant were already on the record. Similarly the facts
of the case reported as AIR 1971 SC 1028 (Rani v. Santa
Bala) were different and there was no question of giving
any relief against deceased defendant who was a formal
party. The facts of the case reported as AIR 1988 SC 2121
(Collector of 24 Parganas v. Lalith Mohan Mullick) show
that the estate of deceased party was sufficiently
represented by party on record and so the facts were
different.
35) Learned counsel for the appellant placed
reliance on a case reported as 2003(1) SCC 476 (Zahirul
Islam v. Mohd. Usman). The facts of this case show that
plaintiff had not obtained permission as contemplated in
Order 22 Rule 4 of the CPC in respect of deceased
defendant. Against that defendant already ex-parte order
was made. The legal representatives of deceased
defendant approached the Court to allow them to join as
defendants. It was held that such permission to bring on
record the legal representatives needs to be granted and
the permission was granted to them.
36) In the present case unfortunately the first
appellate Court did not grant the permission to the legal
representatives of Mukinda though they had come to the
Court. In any case they have given no objection for
execution of decree and so that point need not to be
considered. Further as already observed in reported case
by the Apex Court, in such cases the Courts are not
expected to take hyper technical approach which will not
protect the ends of justice.
37) One more case was cited by learned counsel for
the respondent like AIR 2004 SC 3942 (Shahazada Bi v.
Halimabi). The facts were different. The defendants were
in possession of separate portions and in view of those
facts when one defendant died suit only as against him
could be treated as abated and the decree was possible as
against remaining defendants.
38) On the aforesaid point the first appellate Court
has placed reliance on some observations made by the
Apex Court in the case reported as AIR 1972 SC 1181
(Ramagya Prasad v. Murli Prasad). The Apex Court has
given tests in this regard and they are as follows :-
"It is not correct to say that the appeal abates
against the other respondents. Under certain
circumstances the appeal may not be proceeded with
and is liable to be dismissed. But that is so not
because of the procedural defect but because it is
part of the substantive law. No exhaustive statement
can be made as to the circumstances under which an
appeal in such cases cannot proceed. But the Courts
have applied one or the other of three tests. The
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
respondents, and, therefore, it 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. These three tests are not cumulative tests
Even if one of them is satisfied, the Court may
dismiss the appeal."
39) Relevant facts and circumstances of the present
case are already quoted by this Court. This Court has no
hesitation to observe that, the aforesaid three tests are
satisfied in the present case. Thus, there is no force in the
third ground also.
40) In the result, the appeal stands dismissed.
 Sd/-
 (T.V. NALAWADE, J. )

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