LexBUDH RAM & ORS. versus BANSI & ORS.
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A B [2010] 9 S.C.R. 674 BUDH RAM & ORS. v. BANSI & ORS. (Civil Appeal No. 6291 of 2010) AUGUST 5, 2010 [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.] Code of Civil Procedure, 1908 -Or. 22, r.4(3) and (4) - Death of one of the several respondents - During pendency C of appeal - Abatement of appeal - Whether only qua the deceased respondent or in toto - Held: Where each parly has independent right, and the parlies have no conflicting interests inter se, appeal would abate only qua the deceased respondent - But where there is a possibility that the court may D pass a decree contradictory to the decree in favour of the deceased party, the appeal will abate in toto - On facts, appeal was liable to abate in toto - Abatement. Respondent (plaintiffs) filed a suit against the E appellants (defendant Nos. 1 to 5) and also against defendant No. 6, a proforma defendant, seeking declaration to the effect that the plaintiffs were co-owners and co-sharers in joint possession to the extent of 17 Bighas, 8 Biswas, and the proforma defendant was the co-owner and co-sharer in joint possession to the extent F of 5 Bighas, 15 Biswas in the suit land. Appellants (defendant Nos. 1 to 5) contested the suit while the proforma defendant did not contest. Trial court decreed the suit in favour of respondents (plaintiffs) and also the G proforma defendant. )\ppellants-defendant Nos. 1 to 5 filed appeal, wherein the proforma defendant was impleaded as respondent. The appeal was contested by plaintiffs while the proforma defendant remained unrepresented. During H 674 BUDH RAM & ORS. v. BANSI & ORS. 675 the pendency of the appeal, the profroma defendant died. A Appellant-defendant filed application for substitution of LRs of the proforma defendant but without any application for condonation of delay in filing that application. Later, they filed application for condonation of delay. The appellate court dismissed both the B applications and further held that since there was joint possession and co-ownership of the plaintiffs and the proforma defendant and since the trial court had passed a joint decree, the appeal stood abated in toto. The order of the appellate court was challenged before High Court c in FAO and the same was dismissed. In the instant appeal, appellant-defendants contended that since the decree was severable and separable so far as the proforma defendant was concerned, the appeal could not have been held to have D abated in toto. Dismissing the appeal, the Court . HELD: 1.1 Whether non-substitution of LRs of the E defendants/respondents would abate the appeal in toto or only qua the deceased defendants/respond.ents, depends upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not inter- F dependent upon one or the other, nor the parties have conflicting interests inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple G · reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject matter in the same suit. Thus, whether the judgment/decree passed in the proceedings vis~a-vis remaining parties would suffer the vice of being a · H 676 SUPREME COURT REPORTS [2010] 9 S.C.R. A contradictory or inconsistent decree is the relevant test. [Para 19) [685-B-E] 1.2 In theory, every co-owner has an interest in every infinitesimal portion of the subject matter, each has a right B irrespective of the quantity of its interest, to be in possession of every part and parcel of the property jointly with others. A co-owner of a property owns every part of the composite property along with others and he cannot be held to be a fractional owner of the property unless C partition takes place. In the instant case, a declaratory decree was passed in favour of respondents/plaintiffs and the proforma defendant to the effect that they were co-owners, though, they had specific shares but were held entitled to be in "joint possession". The appellants/ applicants had sought relief against the proforma D defendant before the first appellate court as there was a decree in her favour, passed by the trial court. In such a · fact-situation, she had a right
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