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1928 Supreme(SC) 83
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD SHAW, LORD CARSON, LORD BLANESBURGH, SIR JOHN WALLIS, AND SIR LANCELOT SANDERSON.
WAJID ALI KHAN - Appellant
Versus
PURAN SINGH - Respondents
On Appeal from the High Court at Allahabad.
Decided On : Dec. 6. 1928.
Solicitor for appellant: H. S. L. Polak.
Solicitors for respondents: Barrow, Rogers & Nevill.
In a pre-emption suit, if an appeal abates only as to one of several plaintiffs, the legal representatives of the deceased plaintiff are not bound by the appellate decree and may pre-empt the entire property, as partial pre-emption is not permissible against a stranger-purchaser.
Headnote:(A) Code of Civil Procedure - Order XX, r. 4(3) and r. 11 - Abatement of appeal - Death of one of several respondents - Effect of abatement - Where an appeal is filed against a decree in a suit for pre-emption involving multiple plaintiffs, the death of one plaintiff during the pendency of the appeal, without the substitution of legal representatives, results in the abatement of the appeal only as to the deceased plaintiff and not the entire appeal. (Paras 12, 13)
(B) Pre-emption - Nature of decree - Right of legal representatives - A decree for pre-emption establishes the right of each plaintiff co-sharer to pre-empt the stranger-purchaser. If the appeal abates as to one plaintiff, the legal representatives of that plaintiff are not bound by an appellate decree reversing the original decree and are entitled to exercise the right of pre-emption for the whole property, as a stranger-purchaser cannot be required to submit to partial pre-emption. (Paras 11, 12)
Facts of the case:
Four co-sharers filed a suit for pre-emption and obtained a decree for possession. The defendant appealed to the High Court. During the pendency of the appeal, one plaintiff died, and his legal representatives were not brought on record. The High Court reversed the original decree and dismissed the suit. Subsequently, the legal representatives of the deceased plaintiff and the surviving plaintiffs sought restoration of possession, contending that the appeal had abated and the appellate decree was a nullity.
Findings of Court:
The appeal abated only as to the deceased plaintiff and not as to the surviving plaintiffs. The surviving plaintiffs, having participated in the appeal, were bound by the appellate decree. However, the legal representatives of the deceased plaintiff were not bound by the appellate decree and were entitled to the right of pre-emption established by the court of first instance.
Issues: Whether the death of one of several plaintiffs in a pre-emption suit, and the subsequent abatement of the appeal as to that plaintiff, renders the entire appellate decree a nullity or whether it only affects the rights of the deceased plaintiff's representatives.
Ratio Decidendi: In a suit for pre-emption, the decree establishes the right of each plaintiff to pre-empt the stranger-purchaser. Under the Code of Civil Procedure, the abatement of an appeal due to the death of a respondent occurs only in respect of that respondent. Since a stranger-purchaser cannot be subjected to partial pre-emption, the legal representatives of a deceased plaintiff, against whom the appeal has abated, are entitled to pre-empt the entire property based on the original decree.
Result: Order of the Subordinate Judge restored; decree of the High Court set aside; legal representatives of the deceased plaintiff entitled to re-delivery of possession.
Legal Category Hierarchy
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practice and procedure
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civil procedure
- abatement of appeals
- execution of decrees
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civil procedure
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property law
- pre-emption
Judgement
Appeal (No. 67 of 1927) from a decree of the High Court (July 11, 1924) varying an order of the Subordinate Judge of Bulandshahr.
The appeal arose out of a suit for pre-emption in which four plaintiffs obtained a joint decree and possession of the pre-empted property. On appeal the High Court had set aside the decree of the Court of first instance. In the execution proceedings for the restoration of the property that followed, it was discovered that the appeal had been heard and decided in the absence of the legal representatives of one of the plaintiffs who had died during the pendency of the appeal.
The facts of the case appear from the judgment of the Judicial Committee.
The High Court (in a judgment reported at I. L. R. 47 A. 100) held that the decree on appeal had abated wholly, not merely as against the present respondents, the representatives of the deceased plaintiff. The judgment was subsequently disapproved by the Pull Bench in Mahadeo Singh v. Talib Ali . (( 1928) I. L. R. 50 A. 792.)
1928. June 25. De Gruyther K.C. and Dube for the appellant. Hyam for the respondents.
Dec. 6. The judgment of their Lordships was delivered by
SIR JOHN WALLIS. In this case Puran Singh, Lekhraj Singh, Amar Singh and Pirthi Singh, who were co-sharers in the village of Bighepur, filed a suit for pre-emption of certain land which the defendant Muhammad Wajid Khan, who is the present appellant, had purchased in the village. The sole question in the case was whether the custom of preemption obtained in the village, and the Additional Subordinate Judge of Aligarh having found this issue in favour of the plaintiffs gave them a decree for possession on their depositing the pre-emption money in Court. They duly deposited the money and obtained possession in execution of the decree.
It was suggested for the first time before the Board that the fourth plaintiff Pirthi Singh, who actually deposited the money in Court and obtained possession, was the only plaintiff who executed the decree, and that the right of the other decree-holders and their legal representatives to execute had become barred by limitation. In their Lordships opinion there is no foundation for this contention. The application for execution of the decree, which was signed by all the four decree-holders, stated that the money had been deposited by them and prayed that possession might be given to them. The execution proceeded upon this basis, and in reply to objections subsequently raised by the defendant Pirthi Singh himself stated that the decree-holders had obtained possession. It is clear therefore that the deposit was made and possession obtained on behalf of all the decree-holders.
The defendant appealed to the High Court at Allahabad, making all the plaintiffs parties to the appeal. When the appeal came on for hearing Amar Singh, the third plaintiff, had been dead for about a year and his legal representatives had not been brought in the record. These facts were not brought to the notice of the Court, and the appeal was allowed to proceed on the footing that he was before the Court, and the appellate decree recites that he had been duly represented at the hearing, whereas in fact he had died and the authority to represent him had determined. Their Lordships are not in a position to say how this regrettable omission came about, and will only observe generally that it cannot be too clearly understood that a practitioner who appears for several respondents, one of whom dies before the hearing of the appeal, owes a clear duty to the Court to bring to its notice if he is aware of it the fact that one of the respondents for whom he has entered appearance is dead and no longer represented by him. Had the Court been apprised of the fact, as it should have been, the questions now before the Board could have been decided at the hearing of the appeal and this subsequent litigation would have been unnecessary.
As it was, the surviving respondents allowed the appeal to be hea
