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1959 Supreme(All) 199
IN THE HIGH COURT OF ALLAHABAD
R. N. Gurtu, J.
SMT.MOTI KUER - Appellant
Versus
BINDHACHAL PANDE - Respondents
Second Appeal 10 Of 1952
Decided On : 10/12/1959
G.K.SAHAI, GANESH PRASAD
A joint decree cannot be reversed against some of the joint decree-holders without also reversing it against the others.
Headnote:
ABATEMENT OF APPEAL - MALICIOUS PROSECUTION - JOINT DECREE - DEATH OF ONE OF THE JOINT DECREE-HOLDERS - NECESSITY OF BRINGING HIS LEGAL REPRESENTATIVES ON RECORD - FAILURE TO DO SO - ABATEMENT OF APPEAL.
Fact of the Case:
Three persons, Ram Sanehi, Bindhachal Pande, and Bhirgu Pande, filed a suit for malicious prosecution against the appellants. The trial court dismissed the suit, but the appellate court reversed the decision and decreed the suit in favor of the plaintiffs. One of the plaintiffs, Ram Sanehi Pande, died during the pendency of the appeal, leaving a widow and two sons. The appellants impleaded the two sons as the legal representatives of Ram Sanehi Pande, but not the widow.
Finding of the Court:
The court held that the appeal had abated due to the failure to implead the widow of Ram Sanehi Pande as a legal representative. The court reasoned that the decree was a joint decree in favor of all three plaintiffs, and that the widow, as an heir of Ram Sanehi Pande, would be entitled to a share of the decree. Therefore, the court held that it was necessary to implead the widow in order to avoid the possibility of conflicting decrees.
Issues: Whether the appeal had abated due to the failure to implead the widow of Ram Sanehi Pande as a legal representative.
Ratio Decidendi: The court relied on the principle that a joint decree cannot be reversed against some of the joint decree-holders without also reversing it against the others. The court held that the widow of Ram Sanehi Pande was a necessary party to the appeal, as she was an heir of Ram Sanehi Pande and would be entitled to a share of the decree. Therefore, the court held that the appeal had abated due to the failure to implead the widow.
Final Decision: The court declared the appeal to have abated.
( 1 ) THREE persons, Ram Sanehi, Bindhachal Pande and Bhirgu Pande, the last two being the sons of Ram Sanehi, filed a suit for malicious prosecution against the appellants.
( 2 ) THE suit was contested by the appellants and it was dismissed by the trial court.
( 3 ) THE allegation in the complaint which the appellants had filed was that the three plaintiffs had beaten Smt. Moti Kuer.
( 4 ) SMT. Moti Kuer was examined in the suit for malicious prosecution and she repeated what had been said in the complaint.
( 5 ) THE trial court, held that the plaintiffs have failed to definitely and affirmatively prove that the complaint filed by Smt. Moti Kuer was false and without any reasonable and probable cause.
( 6 ) ON appeal, the court below has held the plaintiffs case to be proved and decreed the suit as against the appellants for Rs. 425/ -. It has held that the plaintiffs had never beaten Smt. Moti kuer and her husband, Ram Das Pande, as alleged and that the complaint filed against them was false to the complainants knowledge. The order of the court below shows that the damages sustained by the plaintiffs were assessed jointly and not separately. The decree was a joint decree in favour of all the plaintiffs.
( 7 ) THE appellants impleaded all the three plaintiffs in this appeal as respondents but Ram Sanehi pandey respondent died during the pendency of the appeal leaving a widow and two sons, bindhachal Pande and Bhirgu Pande the last two were already on the record of this appeal. It was directed by the court that a note be made against their names that they were also the heirs of ram Sanehi Pande. The learned judge before whom the application for a note being made to the above effect came up, made an order that the fact that Ram Sanehi Pande had a widow who had not been brought on the record should be brought to the notice of the Bench hearing the appeal.
( 8 ) WHEN this appeal came up before me a point was raised that the appeal had abated because the widow of Barn Sanehi Pande had not been impleaded. Inasmuch as Ram Sanehi Pandes widow is admittedly also an heir of Ram Sanehi Pande, she would be entitled to the fruits of the joint decree in favour of her husband, Bindhachal Pande and of Bhirgu Pande. In effect, therefore, she would become one of the joint decree-holders and would be entitled to execute the decree. Now if the appeal succeeds and the decree of the court below is reversed the result will only be that Bindhachal Pande and Bhirgu Pande may be prevented from executing it, but the widow of ram Sanehi Pande could still execute the decree of the court below. In this way, two conflicting decrees would come in existence, one dismissing the suit and the other allowing it. In my view, therefore, this appeal has abated. It is not possible to split up the widows interest in the decree. The decree was a joint decree in favour of Ram Sanehi Pande, Bindhachal Pande and Bhirgu pande and, as I have pointed out, the assessment of damage is on a joint basis and not a separate basis qua each of the plaintiffs.
( 9 ) LEARNED counsel urged that the two sons of Bam Sanehi Pande were already on the record as the heirs and legal representatives of Bam Sanehi Pande and that, therefore, Bam Sanehi Pande should be deemed to be fully represented. He cited the case of Jehrabi Sadullakhan v. Bismillabi sadruddin, AIR 1924 Bom 420, where the Bombay High Court had gone to the length of saying that it is sufficient for the plaintiff in a suit, if a defendant dies, to put one only of the heirs on the record as his legal representative who will then represent the estate of the deceased for the purpose of the suit. The Court opened that "it would be impossible for a plaintiff to find out who are all the heirs of a deceased defendant and it is for those who claim to be heirs to come in if they wish to be represented in the suit. It seems to me that that is not the correct position at all in law. If the cause of action is one which wou
