19 Jan 2121

An appeal that abates qua one deceased respondent cannot be proceeded with qua surviving respondents - Supreme Court of India

Case : Venigalla Koteswaramma v. Malampati Suryamba & Ors. Civil Appeal No. 9546 of 2013

Court : Supreme Court of India

Bench : Justice Sanjay Kishan Kaul, Justice Dinesh Maheshwari and Justice Hrishikesh Roy

Decided on : 19 Jan 2121

Relevant Statutes

Order XXII of the Code of Civil Procedure, 1908

Brief Facts and Procedural History

1. The Plaintiff-Appellant, Venigalla Koteswaramma filed a suit for partition in the Court of Subordinate Judge, Narasaraopet, Guntur District, Andhra Pradesh to claim partition and division of the properties left by her step-mother, Annapurnamma in four equal shares amongst herself and her three siblings (Defendants 1, 2 and 3).

2. The siblings of the Plaintiff-Appellant did not contest the suit; rather Defendants 2 and 3 filed a written statement of admission.

3. The brother of Annapurnamma (Defendant 4) alleged that Annapurnamma had sold a particular property under an agreement for sale dated 05.11.1976 to Malempati Satyanarayanavara Prasad Rao i.e., Defendant 15 (Sister Malampati Suryamba’s husband); and that she had also executed a Will dated 15.06.1978 in favour of her mother (Defendant 14) and an attendant (Defendant 13). The Trial Court decreed the suit in favour of the Plaintiff and held that the documents of the alleged agreement for sale and of the alleged Will were false and fabricated.

4. Persons claiming under the alleged agreement for sale i.e., Defendants 16-18 (legal representatives of Defendant 15) and persons claiming under alleged Will (Defendants 4, 13, and 14) appealed against the decree before the High Court of Judicature at Hyderabad.

5. During the pendency of the appeals brother of the plaintiff-appellant, Malempati Radhakrishnamurthy (Defendant 2) expired on 09.05.1989. No steps for substitution of his legal representatives were taken in either of the appeals.

6. The High Court held that:

a. The Will was not valid and was not binding on the Plaintiff or her siblings.

b. The alleged agreement for sale was binding on the Plaintiff and her siblings, who were under obligation to execute the sale deed. The said property would not be available for partition.

7. The Plaintiff-Appellant then preferred an appeal to the Supreme Court.

8. The applications moved by the Plaintiff-Appellant seeking substitution of legal representatives of her deceased brother and condonation of delay were dismissed by the Chamber Judge.

Issues of the Case

Whether the suit for partition filed by the Plaintiff-Appellant was not maintainable for want of relief of declaration against the agreement for sale dated 05.11.1976?  

What is the effect and consequence of the fact that the legal representatives of Defendant 2, who expired during the pendency of an appeal in the High Court, have not been brought on record?

Whether the High Court was justified in reversing the findings of the Trial Court in relation to the said agreement for sale dated 05.11.1976?

The Observations of the Court

Issue 1

1. It’s a trite (A principle of the law so notorious and entrenched that it is commonly known and rarely disputed) that partition is a process in and by which, a joint enjoyment is transformed into enjoyment in severalty. [Controller of Estate Duty v. Kantilal Trikamlal, (1976) 4 SCC 643]

2. A partition of property can be only among those having a share or interest in it. A person who does not have a share in such property cannot be a party to partition. In a suit for partition, the Court is concerned with three main issues:

a. Whether the person seeking division has a share or interest in the suit property/properties;

b. Whether he is entitled to the relief of division and separate possession; and

c. How and in what manner, the property/properties should be divided by metes and bounds? [Shub Karan Bubna v. Sita Saran Bubna and Ors, (2009) 9SCC 689]

3. The relevant background makes it clear that in this suit for partition, separate possession and recovery of mesne profits, the Plaintiff-Appellant asserted that Defendants 1 to 3 were the co-sharers and alleged that Defendant 4 and other impleaded Defendants were creating hindrance in the division of properties of Annapurnamma among the siblings.

4. The pleas concerning Will and sale agreement were taken only by Defendant 4 in his written statement (and by such other Defendants who adopted his written statement). The onus of establishing such pleas was on the contesting Defendants. The documents of Will and sale agreement, as set up by the contesting Defendants, were subject to proof by the persons setting them up. On her part and to maintain the suit for partition and other related reliefs, the Plaintiff-Appellant was entitled to ignore them and she need not to seek the relief of declaration against the agreement set up by the Defendants.

5. As per Section 54 of the Transfer of Property Act, 188 an agreement for the sale of an immoveable property does not, of itself, create any interest in or charge on such property [Bank of India v. Abhay D. Narottam and Ors, (2005) 11 SCC 520]. In the present case, the vendee (Defendant 15) or his legal representatives, claiming under the agreement for sale, did not seek specific performance of the alleged agreement.

6. The alleged agreement for sale did not invest the vendee with title to, or any interest in, the property in question; and with any such right that the Plaintiff-Appellant could not have maintained her claim for partition in respect of the properties left by Annapurnamma without seeking declaration against the agreement. Therefore, the plea about non-maintainability of suit for want for relief of declaration against the said agreement for sale was not based on any statutory requirement or any case-law. It was baseless and liable be rejected.

Issue 2

7. No steps were taken for substitution of the legal representatives of Defendant 2, who was Respondent 3 in the appeals before the High Court. Therefore, Rule 4(3) of Order XXII of the Code of Civil Procedure, 1908 directly came into operation and the said appeal filed by Defendants 16-18 abated against Defendant 2 (Respondent 3 therein). The other appeal filed by Defendants 4, 13 and 14 was specifically dismissed by the High Court as against the deceased Defendant 2 on 25.04.2006.

8. Concerning the effect of abatement of appeal against one Respondent in case of multiple Respondents, in State of Punjab v. Nathu Ram, AIR 1962 SC 89 it was held that in case of the joint and indivisible decree, the appeal against the surviving Respondent(s) cannot be proceeded with and has to be dismissed as a result of its abatement against the deceased Respondent; the basic reason being that in the absence of the legal representatives of deceased Respondent, the appellate Court cannot determine between the Appellant and the legal representatives’ anything which may affect the rights of the legal representatives. By abatement of appeal qua the deceased Respondent, the decree between Appellant and the deceased Respondent becomes final and the appellate Court cannot, in any way modify that decree, directly or indirectly.

9. In Sardar Amarjit Singh Kalra (dead) by LRs. and Ors v. Pramod Gupta (Smt) (dead) by LRs. and Ors, (2003) 3 SCC 272 underscored the consideration about inconsistent decrees coming into operation in case of proceeding with the appeal even after its abatement qua one of the Respondents.

10. In the present case, an appeal before the High Court after having abated against Defendant 2 could not have proceeded against the surviving Respondents i.e., the Plaintiff-Appellant and Defendants 1 and 3.

11. The legal representatives of Defendant 2 having not been brought on record in the High Court, the Appellant did not need to seek such a substitution in the present appeal. So far as the appeal of the plaintiff before the Supreme Court is concerned, the same could proceed even in the absence of the legal representatives of defendant 2 because, in case of success of this appeal, there was no likelihood of any inconsistent decree vis-à-vis Defendant 2 coming into existence.

12. The present appeal deserved to be allowed only on the ground that the appeal of Defendants 16-18 before the High Court was rendered incompetent after its abatement against Defendant 2 (Respondent 3) and was liable to be dismissed as such.

Issue 3

13. It was clear that the questions relating to the Will and the agreement for sale were intrinsically intertwined, particularly when it was suggested by the contesting Defendants that in the Will, apart from making a bequest, Annapurnamma also directed her mother (legatee) to execute a registered sale deed in favour of Defendant 15 after receiving the balance sale consideration from him as per the agreement executed in his favour; and that Annapurnamma also directed her mother to discharge the debts.

14. This unmistakable inter-mixing of the two documents had been the primary reason that the Trial Court examined the matters related with them together while indicating that to give a colour of reality to the Will and to show that Annapurnamma was highly indebted to others which compelled her to sell the property, the suggestions were made about the sale to the Defendant 15.

15. The High Court missed out on this fundamental feature of the case that both the documents as put forward by the contesting Defendants could not be analysed independent of each other, even if they were separate in terms of the alleged time of their execution by about 1½ years. When the Will was found surrounded by suspicious circumstances, the agreement for sale must also be rejected as a necessary consequence.

16. The indebtedness of Annapurnamma was not supported by cogent evidence. Nothing was shown as to who the creditors were and nothing was shown as to how the amount of Rs. 40,000/-, allegedly given by Defendant 15 under the agreement was utilised. The argument made to support this could not be proved.

17. The Trial Court highlighted that if at all any such agreement was executed on 05.11.1976 there was no plausible reason that the vendee did not get the sale document registered for a long length of time because Annapurnamma expired 1½ years later. Besides, Defendant 15 or his legal representatives never sought specific performance of this agreement by showing his readiness and willingness to perform his part of the contract.

18. The Trial Court had examined the matter in its correct perspective and had rightly concluded that the agreement for sale was as invalid and untrustworthy as was the Will. The findings of Trial Court, based on proper analysis and sound reasoning, called for no interference. The High Court erred in interfering with the findings of the Trial Court in relation to the agreement in question.

The Decision Held by the Court

The Supreme Court allowed the appeal and held that:

1. The appeal filed by Defendants 16-18 in the High Court was dismissed as incompetent.

2. The impugned decree of the High Court in relation to that appeal was reversed. Consequently, the decree of the Trial Court stood restored.

3. In addition to the costs awarded by the Trial Court, the Plaintiff-Appellant was held entitled to the costs of this litigation in the High Court and the Supreme Court from the contesting Respondents.

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