1988 Supreme(AP) 503

Andhra Pradesh High Court
Judges : M.N.RAO
G.Krishnaji Rao - Appellant
Versus
Boya Karrennagari Ramaiah - Respondent
Decided On : 11-21-88

The abatement of the suit against one defendant does not necessarily lead to the abatement of the entire suit. The court must consider whether the relief claimed is joint and indivisible, whether the appellant could have brought the action for the necessary relief against those respondents alone who are still before the Court, and whether the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say it could not be successfully executed.

Headnote:

CIVIL PROCEDURE CODE - ORDER 22 RULE 4 - ABATEMENT OF SUIT - JOINT AND INDIVISIBLE RELIEF - DEATH OF ONE DEFENDANT - WHETHER SUIT ABATES IN ITS ENTIRETY.

Fact of the Case:

Plaintiffs filed a suit for eviction from the suit property against five defendants, members of a joint Hindu family. The first defendant died in 1962 and his legal representatives were brought on record. D8, one of the legal representatives died in 1966 and D15 to D1 9 were brought on record as his legal representatives. D13 is the daughter of the pre-deceased daughter of the first defendant. On 16-1 -1970 D13 died. The first plaintiff died on 19-3-72. D9 to D19 who were already on record, were recognised as the legal representatives of the first plaintiff by an order dated 16-9-72 passed on a memo filed by the parties. D9 and D10 are the sons of the first plaintiff and they were transposed as plaintiffs 4 and 5. On 16-8-74 D2 to D5 filed a memo stating that d-13 died and no legal representatives were brought on record. On 25-11-74, the plaintiffs 4 and 5 filed a memo to recognise defendant Nos. 3, 4, 11, 12 and 14 as the legal representatives of D13. An objection was taken by the defendants to this memo contending that the deceased 13th defendant had left surviving her a son and husband who were entitled to come on record as legal representatives besides D3, D4, D11 and D14. By an order dated 18-12-74, the learned Subordinate Judge held that the plaintiffs ought to have brought on record the son and husband of the 13th defendant and as they failed to do so the suit against D13 abated. Thereafter, IA. 1508/74 was filed on 27-12-74 by the defendants to dismiss the entire suit on the ground that the relief claimed by the plaintiff was joint and indivisible and the claim of the defendants was also joint and indivisible and, therefore, the dismissal of the suit against D13 must result in the dismissal of the entire suit.

Finding of the Court:

The suit does not abate in its entirety. The share of the 13th defendant got crystalized so far as the interest of the first defendant was concerned when the latter died in 1962. To that extent it cannot be said that the interest of the 13th defendant was joint and indivisible with that of the interest of the other defendants. The view of the learned judge that the interests of all the defendants were joint and indivisible, therefore appears to be clearly wrong.

Issues: Whether the suit abates only against D13 or it abates in its entirety?

Ratio Decidendi: The devolution of interests in the coparcenery property in the case of a surviving female relative specified in class-I of the schedule or a male relative specified in that who claims through such female relative, shall be governed by the Hindu Succession Act as will be seen from the proviso to Section 6. The main provision of Section 6 says that the devolution of interest of a coparcener dying intestate is by reason of survivorship. Explanation I to the proviso to Section 6 says that for the purpose of this section the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death irrespective of whether he was entitled to claim or not. It thus provides for ascertainment of the interest of the deceased in the coparcenary property on the basis of a notional partition by introducing a fiction as if the partition had taken place before the death of the deceased coparcener.

Final Decision: The appeal and C. R. P. 3s63/7s are allowed. The order of the Court below in I. A. 1508/74 dated 31-12-77 is set aside and the Court is directed to take the suit on file and proceed with the trial against all the defendants except defendant No. 13. As the suit was instituted nearly thirty years back, the court below will complete the trial as expeditiously as possible in any event, not later than six months from the date of receipt of this order. The order passed by the learned judge on 18-12-74 holding that the suit against D-13 abated, stands. However, this will not preclude the legal representatives of D-13 who arc not on record to take steps to come on record. No costs.