Failure to bring the legal representatives of a deceased co-owner results in the abatement of the entire appeal to prevent inconsistent decrees.

JUDGMENT :

Rakesh Kainthla, J.

The present appellant was the defendant before the learned Trial Court, respondents no. 1 to 6 were the plaintiffs and the other respondents were the defendants.

2. The plaintiffs had filed the suit seeking a declaration that they be declared owners in possession of the land mentioned in Para 1 of the plaint and defendant no. 1 be restrained from claiming any interest qua the estate of deceased Barain Singh in the suit land.

3. The defendant No.1 filed a written statement asserting that the suit land was earlier owned by Narayan Singh, who had executed a Will on 12.12.1967 in his sound disposing state of mind in favour of defendant no. 1. The Learned Trial Court held that the execution of the Will propounded by the defendant was not proved; hence, the suit of the plaintiff was decreed.

4. The defendant filed an appeal, which was dismissed.

5. Being aggrieved from the judgments and decrees passed by the learned Courts below, the defendant No.1 has filed the present appeal.

6. Kubja-respondent no. 6 (original plaintiff No.6) arrayed before this Court and original plaintiff no. 6, Budhi Ram-respondent no. 8, Budhi Ram-respondent no. 9 and Surat Ram-respondent no. 10 died during the pendency of the suit. The appellant failed to bring their legal representatives on record despite the lapse of the statutory period and the appeal abated qua them.

7. It was submitted by Sh. I.S. Chandel, learned counsel for the appellant/defendant that the appeal will abate qua the share of Kubja and can continue against the rest of the respondents. The abatement is partial and not complete; therefore, he prayed that the matter be listed for a final hearing.

8. Mr. Ramesh Chand Sharma, learned counsel for respondents no. 2 to 5 submitted that the decree in favour of the plaintiffs was joint. Kubja was a successor of the original owner and her estate can be represented by her legal representatives and not by other co-owners. The non-bringing of record the legal representatives will result in the abatement as a whole. Hence, he prayed that the appeal be dismissed as having abated.

9. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.

10. In Goli Vijayalakshmi v. Yendru Sathiraju , (2019) 11 SCC 352 : (2019) 3 SCC (Civ) 776 : 2019 SCC OnLine SC 605, one of the co-owners had died. It was contended before the Hon'ble Supreme Court of India that the appeal had abated partially. It was laid down that in the case of co-owners, there is a possibility of mutually inconsistent decrees and if the legal representatives are not brought on record, the appeal will abate as a whole. It was observed:

“10. Taking note of the pleadings of the parties and the claims set up by the defendants that they are co-owners of the suit schedule properties (each being entitled to an equal and undivided share), having derived their title from one common ancestor and are similarly placed and identically situated.

11. From the factual backdrop of the matter, what has emerged is that the judgment and decree passed by the trial court has become final qua Appellant 2 (Defendant 2) on the appeal stood abated qua him vide order dated 24- 7-2009 [Goli Kannayya v. Yendra Sathiraju, 2009 SCC OnLine SC 38] passed by this Court.

12. The submission of the learned counsel for the respondent-plaintiffs is to permit the remaining appellants to prosecute the civil appeals and, in the event, they were to succeed, there would be two mutually inconsistent/contradictory decrees inasmuch as the suit has already been decreed qua Appellant 2 (Defendant 2) on the one hand and the suit would stand dismissed qua Appellants 1 and 3 (