Sunkara Lakshminarasamma (D) by Lrs. vs Sagi Subba Raju & Others etc.

125 & 127 – Will pertaining to Schedule A property was executed in favour of ‘V’ by one ‘SP’ (brother of V’s grandfather) – Another Will pertaining to Schedule B property was executed in favour of ‘V’ by his father (Plaintiff ‘L’) – Defendant Nos. 5 to 125 & 127 who had purchased the Schedule B property from ‘V’, relied upon Will/bequest executed for benefit of ‘V’ – Suits for partition of properties were dismissed by the trial Court and confirmed by the first appellate Court and the High Court – One of the respondents, namely ‘S’ filed a suit for specific performance of an agreement of sale of Schedule A property – The suit for specific performance was ultimately decreed against the appellants – Appellants contended that ‘V’ didn’t have any right, title or interest over the suit properties to the full extent and the Courts below were not justified in concluding that the bequests (Wills) relied upon by the defendants in respect of the properties in question were proved – Respondents contended that appeals were not maintainable since a number of defendants against whom the relief was sought/claimed were either deleted from the array of parties, or were dead – On appeal, held: All three Courts concurrently on facts have concluded that Wills for benefit of ‘V’ were proved and also, the reasons assigned and conclusions arrived at in respect of proof of both the Wills were just and proper – Since ‘V’ was the sole owner of the properties by virtue of Wills, he had right to alienate the properties – Defendants Nos. 5 to 125 and 127 has purchased the properties for valuable consideration from ‘V’ – Courts below were justified in concluding that sales made in favour of defendants Nos. 5 to 125 and 127 were just and proper – Thus, there were no reasons to interfere with the findings of the Courts below – Furthermore, ‘V’ the vendor of the properties, had entered the witness box before the trial Court and supported all his alienations in favour of the defendants – Therefore, the Division Bench of High Court rightly decided against the appellants and granted the decree for specific performance – Insofar as maintainability of these appeals are concerned, decree passed in favour of defendants who were either deleted or dead and whose legal representatives had not been brought on record had attained finality – In case these appeals are allowed in respect of other defendants, the decree to be passed in these appeals would conflict with decree already passed in favour of other defendants – Court cannot be called upon to make two inconsistent decrees about same subject matter – Thus, appeals not maintainable – Code of Civil Procedure, 1908 – Or. XXII, r.4.

Dismissing the appeals, the Court

HELD: 1. Exhibit B4, the Will pertains to Schedule A property. The said Will was executed by ‘SP’, who was admittedly the owner of the Schedule A properties. He had no issue. His wife also expired shortly after his death. The beneficiary under the said Will was ‘V’. Exhibit B106, the Will pertains to Schedule B property. The said Will was executed by ‘L’ (the father of ‘V’) in favour of his son ‘V’. ‘V’ became the owner of Schedule A and B properties, after the demise of ‘SP’ and ‘L’. All the three Courts concurrently on facts have concluded that both the Wills are proved. The findings of the validity of the Wills etc. have not been seriously disputed by the appellants. Even otherwise, on going through the judgments of the three Courts, the reasons assigned and the conclusions arrived at in respect of proof of both the Wills are just and proper. Hence, no interference is called for. [Para 5][228-D, G-H]

2. Since ‘V’ was the sole owner of the properties by virtue of Exhibits B4 and B106 Wills, naturally he had the right to alienate the properties. Defendant Nos. 5 to 125 and 127 had purchased the properties for valuable consideration from ‘V’. The alienations made in favour of these defendants/purchasers were not questioned by the appellants in the two suits for partition. Be that as it may, since the sales made in favour of Defendant Nos. 5 to 125 and 127 are just and proper and as they are bona fide purchasers for valuable consideration, no interference is called for. [Para 6][229-A-B]

3. Since ‘V’ was the absolute owner of the properties including the property involved in the suit for specific performance, he had the right to enter into an agreement of sale also. This property was bequeathed to ‘V’ under Exhibit B4 Will by ‘SP’. Hence, ‘V’ was the sole owner of the property. Consequently, he had entered into an agreement of sale with ‘S’. As a matter of fact, ‘V’, the vendor of the properties, had entered the witness box before the trial Court and supported all his alienations in favour of the defendants. Therefore, the Division Bench has rightly concluded in favour of ‘S’ and against the appellants and granted the decree for specific performance. [Para 7][229-D-E; 230-B]

4. Order 22 Rule 4, CPC lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. If the interests of the co-defendants are separate, as in the case of co-owners, the suit will abate only as regards the particular interest of the deceased party. In such a situation, the question of the abatement of the appeal in its entirety that has arisen in this case depends upon general principles. If the case is of such a nature that the absence of the legal representatives of the deceased respondent prevents the court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject matter. The court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the court has no alternative but to dismiss the appeal as a whole. If on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the court should not hear the appeal and adjudicate upon the dispute between the parties. In the matter on hand, the absence of certain defendants who have been deleted from the array of parties along with the absence of legal representatives of a number of deceased defendants will prevent the court from hearing the appeals as against the other defendants. Because in the event of these appeals being allowed as against the remaining defendants, there would be two contradictory decrees in the same suit in respect of the same subject matter. One decree would be in favour of the defendants who are deleted or dead and whose legal representatives have not been brought on record; while the other decree would be against the defendants who are still on record in respect of the same subject matter. The Court cannot be called upon to make two inconsistent decrees about the same subject matter. In order to avoid conflicting decrees, the Court has no alternative but to dismiss the appeals in their entirety. [Para 9][230-F-H; 231-A-G]

Shahazada Bi v. Halimabi, (2004) 7 SCC 354: [2004]

3 Suppl. SCR 222 – relied on.