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SUPREME COURT OF INDIA
N.V. RAMANA, MOHAN M. SHANTANAGOUDAR,M.R.SHAH, JJ.
SUNKARA LAKSHMINARASAMMA (D) BY LRs. – APPELLANTS
VERSUS
SAGI SUBBA RAJU & OTHERS ETC. – RESPONDENTS
CIVIL APPEAL NOS. 4380-4382 OF 2016
Decided On : 28-11-2018
(b) Specific Relief Act, 1963 – Section 10 – Sagi Subba Raju filing Suit No. 72 of 1983 for specific performance of agreement of sale dated 19.09.1974 executed by Veeraswamy – Veeraswamy supporting all his alienations – Held, courts below rightly decreed suit of specific performance. (Para 7)
(2012) 5 SCC 712 – Referred
(c) Code of Civil Procedure, 1908 – Order XXII Rule 4 – Abatement of suit for non-impleadment of legal heirs of defendants within limitation period – Held, non-impleadment of legal heirs/representatives of some defendants out of many will not abate the suit as a whole – It would abate qua those defendants whose legal heirs/ representatives are not impleaded – However if it is not possible to decide the appeal in absence of heirs/representatives of some deceased defendants, the appeal will abate in toto – Declaration that the wills are proved thereby making Veeraswamy absolute owner of the properties – Such decree in favour of those defendants whose legal heirs/representatives are not impleaded – Allowing these appeals will result in two contradictory decrees on the same subject – Appeals have to be dismissed. (Para 9)
(2004) 7 SCC 354 – Relied upon
Facts of the case:
O.S. No. 98 of 1984 was filed for partition of Schedule A property against Defendant Nos. 5 to 25 and challenging only one alienation made by Veeraswamy (the plaintiff Lakshminarasamma's son) was assailed, though Veeraswamy had alienated various other properties through different sale deeds falling under Schedule A. O.S. No. 97 of 1984 was filed for partition of Schedule A and B properties as well as for eviction of Defendant Nos. 26 to 125 and 127 from the said properties. O.S. No. 72 of 1983 was filed by one Sagi Subba Raju (one of the respondents in these appeals) for specific performance of an agreement of sale dated 19.09.1974.
O.S. Nos. 97 of 1984 and 98 of 1984 (for partition of Schedule A and B properties) were dismissed by the trial Court and confirmed by the first appellate Court. O.S. No. 72 of 1983 (suit for specific performance) was decreed partly, directing sale of 1/3rd of the property in favour of the plaintiff Sagi Subba Raju, and such decree was confirmed by the first appellate Court.
The appellants filed appeals before the High Court. So also, Sagi Subba Raju, who was to get 1/3rd of the property in the suit for specific performance filed L.P.A. No. 323 of 1992 before the High Court. All these appeals were heard together by the High Court and decided against the appellants herein, which means that the judgments and decrees of dismissal passed in O.S. Nos. 97 & 98 of 1984 were confirmed by the Division Bench of the High Court also. In respect of O.S. No. 72 of 1983 also, the Division Bench proceeded to grant a decree, as prayed for, in favour of Sagi Subba Raju and against the appellants herein. In other words, the suit for specific performance also was decreed fully against the appellants herein.
Finding of the Court:
Appeals fail not only on the ground of non-maintainability, but also on merits.
Result: Appeals dismissed.
JUDGMENT
Mohan M. Shantanagoudar, J.
These appeals are directed against the common judgment in Letters Patent Appeal No. 323 of 1992 and Appeal Nos. 2959 and 2960 of 2001 dated 11 September, 2003 passed by the High Court of Judicature of Andhra Pradesh at Hyderabad. The appellants herein were the plaintiffs in O.S. No. 98 of 1984 on the file of the Subordinate Judge, Bhimavaram (formerly O.P. No.124/1980), and O.S. No. 97 of 1984 on the file of the Subordinate Judge, Bhimavaram (formerly O.P. No.10/1982). They were the defendants in O.S. No. 72 of 1983 on the file of the Subordinate Judge, Bhimavaram (formerly O.P. No.32/1978 on the file of the Subordinate Judge, Narsapur).
2. O.S. No. 98 of 1984 was filed for partition of Schedule A property against Defendant Nos. 5 to 25. In this suit, only one alienation made by Veeraswamy (the plaintiff Lakshminarasamma's son) was assailed, though Veeraswamy had alienated various other properties through different sale deeds falling under Schedule A. O.S. No. 97 of 1984 was filed for partition of Schedule A and B properties as well as for eviction of Defendant Nos. 26 to 125 and 127 from the said properties. O.S. No. 72 of 1983 was filed by one Sagi Subba Raju (one of the respondents in these appeals) for specific performance of an agreement of sale dated 19.09.1974 executed by the late Veeraswamy covering an extent of 3 acres 56 cents in Revenue Survey Nos. 347 and 347/3 of Bhimavaram village.
O.S. Nos. 97 of 1984 and 98 of 1984 (for partition of Schedule A and B properties) were dismissed by the trial Court and confirmed by the first appellate Court. O.S. No. 72 of 1983 (suit for specific performance) was decreed partly, directing sale of 1/3rd of the property in favour of the plaintiff Sagi Subba Raju, and such decree was confirmed by the first appellate Court. Feeling aggrieved by these judgments and decrees, the unsuccessful appellants filed appeals before the High Court. So also, Sagi Subba Raju, who was to get 1/3rd of the property in the suit for specific performance filed L.P.A. No. 323 of 1992 before the High Court. All these appeals were heard together by the High Court and decided against the appellants herein, which means that the judgments and decrees of dismissal passed in O.S. Nos. 97 & 98 of 1984 were confirmed by the Division Bench of the High Court also. Thus, there are concurrent findings of three Courts in respect of those two suits filed by appellants for partition against the appellants herein. In respect of O.S. No. 72 of 1983 also, the Division Bench proceeded to grant a decree, as prayed for, in favour of Sagi Subba Raju and against the appellants herein. In other words, the suit for specific performance also was decreed fully against the appellants herein. Hence, the appellants are before this Court.
3. Shri A. Subba Rao, learned advocate appearing on behalf of the appellants, taking us through the material on record, submits that the Courts below were not justified in concluding that the bequests (Wills) relied upon by the defendants, i.e. Will dated 14.08.1932 (Exhibit B4/Ex.P1) in respect of Schedule A property and the Will dated 05.10.1968 (Exhibit B106/Ex. P2) in respect of Schedule B property executed for the benefit of Veeraswamy, were proved; that the plaintiffs have got 2/3rd share in the suit properties and therefore the bequests (Exhibits B4 and B106) will not confer any right to the beneficiary in excess of remaining 1/3rd of the properties. Lastly, he submitted that the Defendant Nos. 5 to 125 & 127, being the purchasers of the properties from Veeraswamy (in whose favour the Wills were executed), are liable to be evicted inasmuch as Veeraswamy did not have any right, title or interest over the suit properties to the full extent, on the other hand, Veeraswamy had only 1/3rd share in the suit properties.
4. Per contra, learned counsel appearing on behalf of the respondents contends that the judgment of the Division Bench of the High Court is just and proper
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