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1965 Supreme(Pat) 127
PATNA HIGH COURT
U.N.Sinha, J.
Gurucharan Singh
Versus
Gorakhnath Singh
Appeal From Appellate Decree No. 707 of 1963 ;
Decided On : DECEMBER 17, 1965
The presence of all necessary parties is essential for the competency of an appeal, and the death of a necessary party during the pendency of the suit renders the appeal at jeopardy.
Headnote:
None
Fact of the Case:
Plaintiffs filed a suit for redemption of a usufructuary mortgage of 1898. The trial court dismissed the suit, but on appeal, the suit was decreed in part, allowing redemption but dismissing the claim for mesne profits. The defendants appealed, and the plaintiffs filed a cross-objection on the issue of mesne profits.
Finding of the Court:
The court found that one of the defendants, Mahadeo Singh, had died during the pendency of the suit in the trial court, and the suit had proceeded to judgment and decree in his absence. The court held that the order of the appellate court, which had allowed the appeal and decreed the suit for redemption in the absence of some of Mahadeo Singh's heirs and legal representatives, was erroneous.
Issues: Whether the appeal had abated due to the death of Mahadeo Singh during the pendency of the suit in the trial court.
Ratio Decidendi: The court held that the presence of Mahadeo Singh or his heirs and legal representatives was necessary in a suit for redemption, and therefore, the appeal in the court of appeal below was at jeopardy. The court relied on the fact that the plaintiffs had claimed redemption as heirs of Ramsaran Singh, and the contesting defendant had claimed that after redemption, the disputed property had been sold in auction to Naujadik, who had re-sold it to the father of defendant No. 1. The court found that this case of the contesting defendant could not be interpreted to mean that Mahadeo Singh had no interest in the usufructuary mortgage as a mortgagee.
Final Decision: The court allowed the appeal and set aside the decrees of the courts below. The case was remanded to the trial court for re-hearing, with the direction that the trial court should decide whether the case could proceed in the absence of Mahadeo Singh or not.
U.N.Sinha, J.
1. This appeal has been flied by the defendants and a cross-objection has been filed by the plaintiffs. The appeal arises out of a suit instituted by the plaintiffs for redemption of a usufructuary mortgage of the year 1898. That suit was dismissed by the trial Court. But, on appeal, the suit has been decreed in part, that is to say, the plaintiffs suit for redemption has succeeded, but the claim for mesne profits has been dismissed. Hence the defendants have come up in appeal and the plaintiffs have filed their cross-objection on the question of mesne profits.
2. The facts are as follows: According to the plaintiffs, one Narkoo Singh was the common ancestor of the plaintiffs and others and Narkoo Singh had four sons named, Samarth Singh, Ramsaran Singh, Ramjit Singh and Harakh Singh. Harakh Singh and Samrath Singh are said to have died in a state of joint-ness with his other brothers. According to the plaintiffs, Ramsaran Singh and Ramjit had separated before the survey and had come in possession of their separate lands. After the death of Ramjit Singh, his properties were recorded in the name of his widow, Rajwanti Kuer. Plaintiffs are in the branch of Ramsaran Singh. Rajwanti Kuer had executed a rehan in respect of the lands in dispute by a registered deed dated the 20th Asarh, 1305 Fasli, corresponding to 16th June 1898. According to the plaintiffs, the defendants are in possession as the mortgagees. The plaintiffs had no earlier knowledge of this usufructuary mortgage and when they came to know of it, they tendered the amount to the mortgagees, which was refused. Hence this suit had to be instituted. The only contesting defendant was defendant No. 1 and his case was as follows: It was contended that the genealogy given by the plaintiffs was not correct. It was stated that Ramjit was not the son of Narkoo Singh, but he was son of one Dhajoo Rai. That is to say, according to the contesting defendant, the plaintiffs were not connected with the family of the mortgagor. Then it was contended that the usufructuary mortgage in question was redeemed before the survey and settlement operations and thereafter, Khata No. 351. within which the disputed plot No. 1984 falls, was sold in a rent sale and one Naujadik Singh had purchased the disputed land. The father of defendant No. 1 is said to have purchased the disputed land from this Naujadik Singh orally for Rs. 80. Then, there was a partition in the defendants family and by virtue of this the raiyati land fell to the share of this defendant, who was in possession of it as a raiyat.
3. It is not necessary to mention the conclusions on merit arrived at by the trial Court for the reasons which will appear presently, and it is enough to state, at this stage, that the suit was dismissed by the trial Court. Thereafter, the plaintiffs carried an appeal in the court of appeal below, which was numbered as Title Appeal No. 194 of 1960. This appeal was filed on the 15th July, 1960, and it appeared thereafter that Mahadeo Singh, defendant No. 14. had died on the 8th May, 1960, long before the trial Court had dismissed the suit. The plaintiffs-appellants in the court below filed an application in that court for expunging the name of Mahadeo Singh, stating that the heirs mentioned in their application were already on the record. A reply was given on behalf of the contesting defendant, stating that some heirs had not been brought on the record. Thereupon, the plaintiffs applied for setting aside the abatement and for substitution.
These prayers of the plaintiffs were objected to in the court of appeal below and an order on this matter was passed on "the 22nd December, 1961. It was held by the court of appeal below that the appeal had not abated by reason of the death of Mahadeo and the appeal should proceed to be heard on merits. Thereafter, the appeal has been heard on merits and allowed and the plaintiffs suit has been decreed to the extent mentioned above. It is not neces
