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Second Appeal No. 72 of 1950, decided on 25th March 1957.
, O. XXII, r. 4 read with r. 11‑Abatement of appeal‑Death of one of the appellants‑Failure to substitute his legal representative‑Test to determine whether appeal abates as a whole.
One of the tests whether an appeal as a whole has abated is whether if the appeal succeeds there will be in existence two conflicting decrees. If such be the position, then the appeal as a whole abates and not partially.
Amjad Sheikh and others v. Siddik Hossain Sikdar and others 8 D L R 217 ; Raghunath Singh Hazari and others v. Abdul Rashid 8 D L R 577 and Sadat Ali v. Asrab Ali Sarkar and others P L R 2 Dacca 630 ref.
, O. XXII, r. 4, sub‑r. (4) [as added by Calcutta High Court vide notification in Calcutta Gazette dated 2nd April 1938]‑Sub‑rule (4) does not exempt plaintiff from necessity of substituting legal representative of con testing defendant.
Sub‑rule (4) added to rule 4 of Order XXII of the Civil Procedure Code by the Calcutta High Court in 1938 (vide Calcutta Gazette : 2‑4‑1938) and applicable in the Dacca High Court, enables the Court in a proper case to exempt the plaintiff' from the necessity of substituting a legal repre sentative of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at the hearing. This rule, however, does not say anything about exempting the plaintiff from the necessity of substituting the legal representative of a contesting defendant and, therefore, cannot be of much assistance when the appeal has abated as against the legal representative of a contesting defendant.
Ramphal Sahu and others v. Babu Satdeo Jha and another A I R 1940 Pat. 346 (F B) ; Nanak v. Ahmad Ali A I R 1946 Lah. 399 (F B) ; Nibaran Chandra Ghose and others v. Pratap Chandra Chowdhuri and others 44 C W N 141 ; Sarat Chandra Narayan Chowdhury and another v. Fezuram Nath and others 46 C W N 281 Karimonnessa Bibi v. Juran Mondal 59 C L J 318 ; Satulal Bhattacharjee and others v. Asiraddi Sheikh 59 C L J 362 ; R. M. M. S. T. Somasandaram Vairavan Chettiar and others v. Vaithilinga Mudaliar and others I L R 40 Mad. 816 ; Chintaman v. Gangabai I L R 27 Born. 284 and Duttaloor Subbayya v. Paidigantam Subbayya I L R 30 Mad. 470 ref.
Sadat Ali v. Asrab Ali Sarkar and others P L R 2 Dacca 630 dissented from.
O. XLI, r. 4 & O. Xx71, rr. 3 & 11‑Rule 4 of O. XLI‑Cannot override provisions of rules 3 & 11 of O. XXIL.
Ramphal Sahu and others v. Babu Satdeo Jha and another A I R 1940 Pat. 346 (F B) and Nanak v. Ahmad Ali A I R 1946 Lah. 399 (F B) approved.
, O. XLI, r. 33‑Powers under, will not be exercised to deprive party of a valuable right accruing to it as a result of laches of the other party.
The Court will not exercise its power under Order XLI, rule 33 to deprive a party of a very valuable right which accrued to it due to the laches of the other side. Where, no step had been taken to substitute the legal representatives of a deceased appellant and the appeal had abated, and there was no good and sufficient reason why heirs of the deceased‑appellant could not be substituted, the Court declined to exercise its powers under Order XLI, rule 33, Civil Procedure Code, 1908.
V. P. R. V. Chockalingam Chetty v. Seethai Ache arid others AIR1927PC252rel.
Joy Kumar Dutta and others v. Sitanath Dutta P L D 1952 Dacca 357 and Yadali Choudhury v. Benoy Kumar Acharjya Choudhury and others 54 C W N : 2 (D R) 280 ref.
, O. XLI, r. 14 (3) Court can dispense with notice of appeal to legal representatives of deceased, only when the appellant makes the requisite appli cation.
Gift‑Not valid unless accompanied by possession‑Gift cannot be made to take effect in future.
Nawab Amjad Ali Khan v. Mst. Mahumuda Begum 11 M I A 517 and Khajooronnissa v. Rowshan Jahan I L R 2 Cal. 184 (P C) ref.
K. M. Saha for B. C. Das for Appellants.
A. Malik for Azizul Islam for Respondent No. 1.
A. S. Mofakher for the Deputy Registrar.
.‑In this Second Appeal, the defendants are the appellants. This appeal first came up for hearing before Chowdhury, J., and the main contention raised before him was that due to non‑substitution of the heirs of deceased‑appellant No. 1 the whole appeal abated. Chowdhury, J., considered that there was a conflict of decisions in this matter, and, therefore, the question should be decided by a larger Bench. Hence this Bench has heard this appeal.
2. This appeal arises out of a suit for joint possession of the suit land on declaration of plaintiffs' 4 annas title thereto. The subject‑matter of litigation is jamas of Rs. 1‑1 and as. 4 recorded in C. S. Khatians Nos. 499 and 485, respectively, in Mauza Sankardi.
3. The following genealogical table will help in under standing the plaintiffs' case.
|
--------------------------------------------------------------------------- Itu Thakur Khan (died before his father) ------------------------
1st wife 2nd wife Hakim Pear Naser Daughter Daughter
4 as. =Osman
---------------------------------------------------------------------------
5 as.=Imanali Hujurali Sadek Asiran Basiran. Tasiran D (2) Kalachand Khukimonnessa D (2) Heirs D2 (1)‑2 (3) |
Baul Halsana held the following four jamas:
(1) A jama of Rs. 61‑5‑9 recorded in C. S. Khatian No. 75 of Mauza Sankardi ;
(2) A jama of Rs. 1‑1 recorded in C. S. Khatian No. 499 of the said Mauza
(3) A jama of as. 4 recorded in C. S. Khatian No. 485 of the same Mauna ;
(4) A jama of Rs. 1‑12‑8 recorded in C. S. Khatian No. 36 of ,Mauna Naraharidia.
4. The plaintiffs' case is as follows : Thakur Khan predeceased his father Baul Halsana, and, thereafter, the sons of Thakur Khan managed to obtain a fraudulent deed of gift from Baul Halsana in respect of the above properties. Baul's son Itu and Baul's other grandsons, on learning about the fraudulent transaction, filed a suit for setting aside the said deed of gift. The said suit was, however, compromised, and, by the solenama filed in the suit, the following shares were allotted to sons of Itu and to the sons of Thakur Khan in the jama of Rs. 61‑5‑9:
Thakur's sons‑7 annas.
Osman, son of Itu‑4 annas.
Iman and Hujur, sons of Itu‑5 annas.
The remaining 3 jamas were allotted to Itu.
5. It is alleged that Sadek was born after the solenama, and that Itu made a gift of the share that was allotted to him by the solenama in favour of Sadek. Sadek subsequently sold by registered kabala the jama of Rs. 1‑12‑8 to Namdar Biswas and others. Thereafter, the settlement records were 'prepared, and the jarna of Rs. 1‑1 and jama of as. 4 were recorded in the name of Sadek. Sadek then died leaving a wife Khukimonnessa, and two brothers Iman and Hujur, and three sisters as his heirs under the Mohammedan Law. Sadek's wife Khukimonnessa thus inherited 4 annas share of the aforesaid two jan.as, which she jointly possessed with her co‑sharers. After come time, Khukimonnessa nika‑married one Mahat Ali, and continued to possess her share in the said jamas. On the 23rd Jaistha, 1334 B. S., she sold her shares in the said jamas to the plaintiff, and the plaintiff possessed the same till Aswin, 1334 B. S., when the defendants dispossessed him, and, hence, this suit.
6. Defendants Nos. 1 and 2 contested the suit by filing a joint written statement. They denied the existence of a jama of Rs. 1‑12‑8. Their story was as follows: By the solenama, Baul Halsana got the jama of Rs. 1‑1 and the following shares were allotted to Itu's sons and Thakur Khan's sons in the remaining two jamas of Rs. 61‑5‑9 and as. 4
Osman, son of Itu‑4 annas.
Imanali and Hujurali, sons of Itu‑5 annas.
Pear and Naser, sons of Thakur Khan, deceased‑7 annas.
There was also a stipulation in the solenama that on Baul Halsana's death the jama of Rs. 1‑1 would be divided among the above‑named persons in accordance with the shares mentioned against their names. Further, it was alleged that Itu did not get any share in the disputed jamas, that the jamas of Rs. 1‑1 and as. 4 were wrongly recorded in the name of Sadek, and that Khukimonnessa was never married to Sadek.
7. The solenama, Exh. A, supports the defence version. On the evidence adduced in the case, the learned Munsif accepted the version of the defendants, and, hence, dismissed the suit.
8. On appeal by the plaintiffs, the learned Subordinate Judge found:--
(1) that the jamas were divided among Baul Halsana and the sons of Itu and Thakur Khan in the manner suggested in the written statement ;
(2) that the provision of the solenama that on Baul Halsana's death the jama of Rs. 1‑1 would devolve on the sons of Itu and Thakur Khan was bad, being a gift in future ;
(3) that on the death of Baul Halsana the said jama of Rs. 1‑1 devolved on his legal heirs, that is, his son Itu ;
(4) that Itu was, therefore, legally competent to make a gift of that jama in favour of his son Sadek
(5) that he made such a gift is supported by the entries in the C. S. Khatian ;
(6) that Khukimonnessa, wife of Sadek, inherited 4 annas share in the jama of Rs. 1‑1 ; and
(7) that Itu had no interest in the jama of as. 4, and, as such, plaintiff did not acquire any title to it through Khukimonnessa.
9. On the above findings, the learned Subordinate Judge decreed the suit in respect of as. 4 share of jama of Rs. 1‑I but dismissed the claim with regard to the jama of as. 4.
Hence the second appeal by defendants Nos. 1 and.
10. A preliminary objection has been taken that the appeal has abated. This objection arises in this way Appellant No. 1 died during the pendency of the second appeal, and no step was taken to substitute his legal representatives. It cannot, therefore, be doubted that, so far as the appeal of appellant No. 1 is concerned, the appeal has abated.
11. Now, the question which arises is : Whether according to the nature of the claim, and according to the nature of the decree, on ‑ account of the failure to substitute the heirs of appellant No. I, the entire appeal would be deemed to have abated
12. One of the tests as to whether an appeal as a whole has abated is as to whether if the appeal succeeds there will be in existence two conflicting decrees. If such be the position, then; the appeal as a whole abates and not partially‑see Amjad Sheikh and others v. Siddiq Hossain Sikdar and others (8DLR217), Raghunath Singh Hazrai and others v. Abdul Rashid (8DLR577) and Sadat Ali v. Asrab Ali Sarkar and others (P L R 2 Dacca 630).
13. Mr. Saba, the learned Advocate for the appellants, has not challenged this proposition of law. Now, in this case, defendants Nos. 1 and 2 claims to be co‑sharers of the jama in suit, but nothing is said in the pleading if they held definite specified shares in the lands appertaining to this jama. The plaintiff has got a decree in the suit. So far as the deceased‑appellant No. I is concerned, the decree stands. If the appeal succeeds, in that event there will be two inconsistent decrees, and this fact has not been disputed before us.
14. Mr. Saba has, however, tried to overcome this difficulty by seeking the aid of Order LXI, rule 4 of the Code of Civil Procedure. He has argued that the defence of appellants Nos.1 and 2, who are defendants Nos. 1 and 2 in the suit, is common, and, therefore, Order LXI, rule 4 of the Code of Civil Procedure will govern this case. He has argued that under rule 4 of Order LXI, of the Code of Civil Procedure the appeal should be allowed to proceed against the respondents, inasmuch as the decision made in this appeal cannot be to the prejudice of the deceased appellant. According to him, appellant No. 1 will swim or sink with appellant No. 2.
15. Order LXI, rule 4 of the Civil Procedure Code provides :‑--
"Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be."
16. We shall, therefore, have to consider whether this Rule empowers the Court in a case, as the present one, to reverse the entire decree. A similar question came up for consideration in Sadat Ali v. Asrab Ali Sarkar and others, and Guha, J., after discussing various decisions of the different High Courts in India, preferred to follow the decision of the Calcutta High Court in preference to that of the Full Bench of Lahore and Patna High Courts.
17. In Ramphal Sahu and others v. Babu Satdeo Jha and another (A I R 1940 Pat. 346 (F B)), the Full Bench lays down that rule 4 of Order LXI, cannot override or create an exception to Order XXII, rules 3 and 11, and that in case of one or more appellants dying one where the decree proceeds on a ground common to all, the matter must be governed solely by the provisions of those latter rules. The Full Bench of Lahore High Court followed this decision of Patna in Nanak v. Ahmad Ali (A I R1946 Lah. 399 (F B)).
18. Order XXII, rule 4 of the Civil Procedure Code was amended by the Calcutta High Court in 1938, and a new sub‑rule was added to the following effect:
"The Court, whenever it sees fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendants, who has failed to file a written statement or 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."
There was, however, no such amendment made by the Patna or Lahore High Court. Guha, J., therefore, distinguished these Full Bench decisions by saying :‑---
"I can only say that neither at Patna nor at Lahore there was such an amendment as to be found in rule 4 of Order XXII, as governing the cases in East Bengal. Therefore, for the present purpose, I shall follow the recent decisions of the Calcutta High Court mentioned above, which are consistent with the view expressed by the Madras, Allahabad and Bombay High Courts in preference to those of the Patna and Lahore High Courts."
The recent decisions of the Calcutta High Court, which found favour with Guha, J., will be found in Nibaran Chandra Ghose and others v. Pratap Chandra Chowdhuri and others (44 C W N 141) and Sarat Chandra Narayan Chowdhury and another v. Fezuram Nath and others (46 C W N 281). Here we may mention that Sen, J., who decided the above case, followed the decision in Karirhonnessa Bibi v.‑ Juran Mondal (59 C L J 318) and Satulal Bhattacharjee and others v. Asiraddi Sheikh (59 C L J 362) in arriving at his decision that Order LXI, rule 4, will govern such cases.
19. Guha, J., has also relied on the following observations of Sir John Wallis in R. M. M. S. T. Somasundaram Vairavan Chettiar and others v. Vaithilinga Mudaliar and others (1 L R 40 Mad. 816).
"The twentieth and twenty‑second defendants died after the appeal had been preferred and their representatives have not been brought on the record. It has been argued that as the appeal has abated as regards these appellants the decree of the lower Court cannot be modified as far as their interests are concerned. The grounds of appeal in which the appellants have succeeded are common to all the appellants, and we think the terms of Order XLI, rule 4 of the Code of Civil Procedure are wide enough to cover this case, Chintaman v. Gangabai I 1. R 27 Bom. 284, and enable this Court to set aside the decree as regards the whole of the plaintiff's claim and not merely in respect of the interest of those appellants whose appeals have not abated. Any other conclusion would lead to incongruity in judicial decisions on the same facts.' vide Duttuloor Subbayya v. Paidigantam Subbayya I L R 30 Mad. 470."
No doubt, the above Calcutta and Madras decisions support the view that by recourse to Order LXI, rule 4 of the Code of Civil Procedure, a Court can reverse the entire decree even in the absence of the appellant whose appeal has abated. The above decisions have, however, not fully considered the effect of Order XXII, rules 3 and 11 of the Code of Civil Procedure. Guha, J., was alive to this fact, but he overcame this difficulty by saying:‑---
"The previous decisions of the Calcutta High Court before April 1938, can be supported on this principle, namely, that as it has often been stated by various other Courts that rule 4 of Order XLI cannot override the provisions of rules of Order XXII. Order XXII, rule 4, taken along with rule 11 of that Order governs the procedure so far as the bringing on the record of parties in appeal is concerned. On the 2nd April 1938, by notification in the Calcutta Gazette, sub‑rule (4) was added to rule 4 of Order XXII, by the Calcutta High Court, and that Rule is applicable in this Court as well as in the Calcutta High Court and in Assam, and a similar amendment of the rule was made by the Madras High Court. If the new sub‑rule, (4) of rule 4 of Order XXII, along with rule 11 of Order XXII, are read along with rule 4 of Order XLI, it appears to me that, in circumstances like the present, it will be legitimate to hold that the appeal in the present case is main tainable though there has been an order for abatement by this Court so far as the heirs of defendant No. 18 are concerned."
20. We are, however, unable to agree fully with the above observations of Guha, J. This added sub‑rule (4) enables the Court in a proper case to exempt the plaintiff from the necessity of substituting a legal representative of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at the hearing. This rule, however, does not say anything about exempting the plaintiff from the necessity of substituting the legal representative of a contesting defendant. We, therefore, fails to see how this sub‑rule (4) of rule 4 of Order XXII of the Civil Procedure Code can be of much assistance when the appeal has abated as against the legal representatives of a contesting defendant.
21. No doubt, under Order XLI, rule 14 (3), the Appellate Court, in a proper case, can dispense with service of notice of appeal upon legal representatives of any person deceased. But the appellant must ask the Court to exercise this power under Order XLI; rule 14 (3). In this case, the contesting defendant No. 1, who is appellant No. 1, died, and his heirs were not substituted. No application was made to set aside the abatement of appeal by appellant No. 1, nor was there an application under Order XLI, rule 14 (3), which enables the Court in a proper case to exempt service of notice upon a particular party. Hence, the decree as passed against defendant No. 1 stands. If, at this stage, by exercising power under Order XLI, rule 4, we reverse the entire decree, we shall be trenching upon other provisions of the Code. We think that Order XLI, rule 4, should not be applied to enable the litigants to ignore the other provisions of the Code. We, therefore, respectfully agree with the observations of the Full Bench of the Patna and Lahore High Courts that) Order XLI, rule 4, cannot override or create exceptions toy Order XXII, rules 3 and 11. Furthermore, in our opinion, sub-rule (4) of rule 4 of Order XXII, does not help the appellants in this case. In these circumstances, we hold that the provisions of Order XLI, rule 4, cannot be applied to this case.
22. Mr. Saha has next contended that under Order XLI, rule 33, the Appellate Court has wide power to pass any decree, and any order which ought to have been passed or made, and to pass or make such further or other order or orders, as the case may require, and that the powers may be exercised in favour of the respondents or parties although such respondents or parties may not have filed any appeal or objection. Certainly, the Court has power to take action under Order XLI, rule 33, in such cases ; but, while taking action under the provisions of Order XLI, rule 33, the Court will remember the following observation of the Privy Council in V.'P. R. V. Chockalingam Chesty v. Seethai Ache and others (A I R 1927 P C 252) :‑---
"The Appellate Court was' then asked to take action under Order XLI, rule 33. That rule empowers an Appellate Court to pass any decree, and make any order which ought to have been passed or made, and to make or pass such further decree or order as the case may require, and provides further that this power may be exercised notwithstanding that the appeal is as to a part only of the decree . . . .
Here the plaintiff, whose suits had been dismissed against all the defendants, failed to appeal against the decrees in so far as they affected some of them and allowed the appeal as against them to become barred. In these circum stances, the Appellate Court, in the exercise of their discretion, refused to to take action under the rule so as to deprive these defendants of the very valuable right which they had acquired in consequence of the plaintiff's failure to appeal against the decrees in so far as they affected them. Assuming that under this rule the Court in a proper case might add a defendant as respondent for the purpose of passing a decree against him, their Lordships see no sufficient reason for inter fering with the refusal of the Appellate Court to do so in this instance."
23. Now, there is no material before us to show that for good and sufficient reasons the heirs of appellant No. 1 could not be substituted. In these circumstances, we are not inclined to exercise our power under Order XLI, rule 33, to deprive the respondents of a very valuable right which accrued to the entirely due to the laches of the other side. Hence, in our opinion, this preliminary objection must succeed, and it must be held that the appeal as a whole has abated.
24. Before leaving this question, we would like to refer to the decisions of this Court reported as Joy Kumar Dutta and others v. Sitanath Dutta (P L D 1952 Dacca 357) and Yadali Choudhury v. Benoy Kumar Acharjya Choudhury and others (54CWN2DR280).
25. In Joy Kumar Dutta and others v. Sitanath Dutta, the defendants‑appellants did not make all the defendants party in the appeal. A Division Bench of this Court, in which I was a party, held that under Order XLI, rule 4, the Court was entitled to reverse or vary the entire decree. It may be observed that no question of abatement of appeal arose in that case. Another Division Bench of this Court in Yadalf Choudhury v. Benoy Kumar Acharjya Choudhury and others also took the similar view.
This was a suit on mortgage. On the death of defendant No. 2, his heirs, 4 in number, including one Chunni Bibi, were substituted in his place. Chunni Bibi died during the pendency of the appeal, and so did respondent No. 17, Srimati Jummatennessa Bibi, who was one of the six heirs of Nabi Baksh, defendant No. 4, on whose death they were substituted. An order was noted with regard to Chunni Bibi, respondent No. 4, and Srimati Jummatennessa Bibi, respondent No. 17, that the appeal had abated as against the heirs of the said respondents. It also appears that for failure to take some steps the appeal as against respondent No. 20 had also abated. Hence, it was urged before the Court that the entire appeal had abated, and it was incompetent. Having regard to the particular circumstances of the case, the Court came to the conclusion that if the preliminary and final decrees were re‑opened, the heirs of the deceased respondents will not be prejudiced in any way. Hence the Court took action in that case under Order XLI, rule 33 of the Civil Procedure Code. The above decisions, therefore, do not help the present appellants.
26. Now, coming to the merits of the case, the learned Subordinate Judge has found that the provisions in the solenama that on Baul Halsana's death the jama of Rs. 1‑1 would devolve on the persons named in the solenama was bad. It is now well that, under the Muhammedan Law, a gift is not valid unless it is accompanied by possession nor can it be made to take effect on any future period‑see Nawab Amjad Ali Khan v. Mst. Mahumuda Begum (11MIA517) and Khajoornnissa v. Rowshan Jahan (ILR2Ca1.184PC).
27. Mr. Saha, the learned Advocate for the appellants, has not disputed the correctness of the above proposition. He has, however, attempted to argue that the above provision in the solenama was really a family arrangement. No such case was made in the written statement ; no evidence was led on this point ; nor such a ground will be found among the grounds of appeal. Hence, we have not allowed him to argue that the gift by Baul Halsana was the result of a family arrangement. We shall here observe that there is nothing, so far as we can see, in the form of disposition, as contained in the solenama, to distinguish it from an ordinary gift of property in future, and, as such, the learned Subordinate Judge has rightly found that such a gift is not valid under the Muhammadan Law.
28. We, therefore, uphold the judgment of the lower Appellate Court and dismiss this appeal.
29. Mr. Azizul Islam, the learned Advocate for the respon dents, has not appeared before us and hence we do not allow any costs to the respondents. It is really regrettable that Mr. Islam, having accepted the brief, did not choose to appear in this appeal. In future, we shall take serious notice of such conduct on the part of the learned Advocate.
.‑I agree.
K. D. A./A. H. Appeal dismissed.
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