SUNKARA LAKSHMINARASAMMA (D) BY LRS.versusSAGI SUBBA RAJU & OTHERS ETC.

222                SUPREME[2018]
                           COURT 14REPORTS
                                   S.C.R. 222                 [2018] 14 S.C.R.


A            SUNKARA LAKSHMINARASAMMA (D) BY LRs.
                                          v.
                     SAGI SUBBA RAJU & OTHERS ETC.
                      (Civil Appeal Nos. 4380-4382 of 2016)
B                              NOVEMBER 28, 2018
            [N. V. RAMANA, MOHAN M. SHANTANAGOUDAR
                             AND M. R. SHAH, JJ.]
             Appeal – Maintainability of – When defendants were either
      deleted from array of parties or dead and whose legal
C     representatives had not been brought on record – Appellants-
      plaintiffs filed two suits for partition of properties (Schedule A and
      B), out which one was also for eviction of defendants Nos. 26 to
      125 & 127 – Will pertaining to Schedule A property was executed
      in favour of ‘V’ by one ‘SP’ (brother of V’s grandfather) – Another
D     Will pertaining to Schedule B property was executed in favour of
      ‘V’ by his father (Plaintiff ‘L’) – Defendant Nos. 5 to 125 & 127
      who had purchased the Schedule B property from ‘V’, relied upon
      Will/bequest executed for benefit of ‘V’ – Suits for partition of
      properties were dismissed by the trial Court and confirmed by the
      first appellate Court and the High Court – One of the respondents,
E     namely ‘S’ filed a suit for specific performance of an agreement of
      sale of Schedule A property – The suit for specific performance
      was ultimately decreed against the appellants – Appellants contended
      that ‘V’ didn’t have any right, title or interest over the suit properties
      to the full extent and the Courts below were not justified in
F     concluding that the bequests (Wills) relied upon by the defendants
      in respect of the properties in question were proved – Respondents
      contended that appeals were not maintainable since a number of
      defendants against whom the relief was sought/claimed were either
      deleted from the array of parties, or were dead – On appeal, held:
      All three Courts concurrently on facts have concluded that Wills for
G     benefit of ‘V’ were proved and also, the reasons assigned and
      conclusions arrived at in respect of proof of both the Wills were just
      and proper – Since ‘V’ was the sole owner of the properties by
      virtue of Wills, he had right to alienate the properties – Defendants
      Nos. 5 to 125 and 127 has purchased the properties for valuable
H
                                         222
   SUNKARA LAKSHMINARASAMMA (D) BY LRs. v. SAGI                          223
                  SUBBA RAJU

consideration from ‘V’ – Courts below were justified in concluding       A
that sales made in favour of defendants Nos. 5 to 125 and 127 were
just and proper – Thus, there were no reasons to interfere with the
findings of the Courts below – Furthermore, ‘V’ the vendor of the
properties, had entered the witness box before the trial Court and
supported all his alienations in favour of the defendants – Therefore,
                                                                         B
the Division Bench of High Court rightly decided against the
appellants and granted the decree for specific performance – Insofar
as maintainability of these appeals are concerned, decree passed
in favour of defendants who were either deleted or dead and whose
legal representatives had not been brought on record had attained
finality – In case these appeals are allowed in respect of other         C
defendants, the decree to be passed in these appeals would conflict
with decree already passed in favour of other defendants – Court
cannot be called upon to make two inconsistent decrees about same
subject matter – Thus, appeals not maintainable – Code of Civil
Procedure, 1908 – Or. XXII, r.4.
                                                                         D
      Dismissing the appeals, the Court
      HELD: 1. Exhibit B4, the Will pertains to Schedule A
property. The said Will was executed by ‘SP’, who was admittedly
the owner of the Schedule A properties. He had no issue. His
wife also expired shortly after his death. The beneficiary under         E
the said Will was ‘V’. Exhibit B106, the Will pertains to Schedule
B property. The said Will was executed by ‘L’ (the father of ‘V’)
in favour of his son ‘V’. ‘V’ became the owner of Schedule A and
B properties, after the demise of ‘SP’ and ‘L’. All the three Courts
concurrently on facts have concluded that both the Wills are
proved. The findings of the validity of the Wills etc. have not          F
been seriously disputed by the appellants. Even otherwise, on
going through the judgments of the three Courts, the reasons
assigned and the conclusions arrived at in respect of proof of
both the Wills are just and proper. Hence, no interference is
called for. [Para 5][228-D, G-H]                                         G
      2. Since ‘V’ was the sole owner of the properties by virtue
of Exhibits B4 and B106 Wills, naturally he had the right to
alienate the properties. Defendant Nos. 5 to 125 and 127 had
purchased the properties for valuable consideration from ‘V’. The
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224                SUPREME COURT REPORTS                  [2018] 14 S.C.R.


A     alienations made in favour of these defendants/purchasers were
      not questioned by the appellants in the two suits for partition.
      Be that as it may, since the sales made in favour of Defendant
      Nos. 5 to 125 and 127 are just and proper and as they are bona
      fide purchasers for valuable consideration, no interference is
      called for. [Para 6][229-A-B]
B
            3. Since ‘V’ was the absolute owner of the properties
      including the property involved in the suit for specific
      performance, he had the right to enter into an agreement of sale
      also. This property was bequeathed to ‘V’ under Exhibit B4 Will
      by ‘SP’. Hence, ‘V’ was the sole owner of the property.
C     Consequently, he had entered into an agreement of sale with ‘S’.
      As a matter of fact, ‘V’, the vendor of the properties, had entered
      the witness box before the trial Court and supported all his
      alienations in favour of the defendants. Therefore, the Division
      Bench has rightly concluded in favour of ‘S’ and against the
D     appellants and granted the decree for specific performance.
      [Para 7][229-D-E; 230-B]
            4. Order 22 Rule 4, CPC lays down that where within the
      time limited by law, no application is made to implead the legal
      representatives of a deceased defendant, the suit shall abate as
E     against a deceased defendant. This rule does not provide that by
      the omission to implead the legal representative of a defendant,
      the suit will abate as a whole. If the interests of the co-defendants
      are separate, as in the case of co-owners, the suit will abate only
      as regards the particular interest of the deceased party. In such a
      situation, the question of the abatement of the appeal in its entirety
F     that has arisen in this case depends upon general principles. If
      the case is of such a nature that the absence of the legal
      representatives of the deceased respondent prevents the court
      from hearing the appeal as against the other respondents, then
      the appeal abates in toto. Otherwise, the abatement takes place
G     only in respect of the interest of the respondent who has died.
      The test often adopted in such cases is whether in the event of
      the appeal being allowed as against the remaining respondents
      there would or would not be two contradictory decrees in the
      same suit with respect to the same subject matter. The court

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   SUNKARA LAKSHMINARASAMMA (D) BY LRs. v. SAGI                        225
                  SUBBA RAJU

cannot be called upon to make two inconsistent decrees about           A
the same property, and in order to avoid conflicting decrees the
court has no alternative but to dismiss the appeal as a whole. If
on the other hand, the success of the appeal would not lead to
conflicting decrees, then there is no valid reason why the court
should not hear the appeal and adjudicate upon the dispute
                                                                       B
between the parties. In the matter on hand, the absence of certain
defendants who have been deleted from the array of parties along
with the absence of legal representatives of a number of deceased
defendants will prevent the court from hearing the appeals as
against the other defendants. Because in the event of these
appeals being allowed as against the remaining defendants, there       C
would be two contradictory decrees in the same suit in respect of
the same subject matter. One decree would be in favour of the
defendants who are deleted or dead and whose legal
representatives have not been brought on record; while the other
decree would be against the defendants who are still on record in
                                                                       D
respect of the same subject matter. The Court cannot be called
upon to make two inconsistent decrees about the same
subject matter. In order to avoid conflicting decrees, the Court
has no alternative but to dismiss the appeals in their entirety.
[Para 9][230-F-H; 231-A-G]
      Shahazada Bi v. Halimabi, (2004) 7 SCC 354: [2004]               E
      3 Suppl. SCR 222 – relied on.
                      Case Law Reference
[2004] 3 Suppl. SCR 222        relied on               Para 7
      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4380-           F
4382 of 2016.
      From the Judgment and Order dated 11.09.2003 of the High Court
of Andhra Pradesh at Hyderabad in Letters Patent Appeal No. 323 of
1992 and Appeal Nos. 2959 and 2960 of 2001.
                                                                       G
      A. Subba Rao, K. L. D. S. Vinober, Advs. for the Appellants.
      Thomas P. Joseph, Sr. Adv., V. N. Raghupathy, R. V.
Kameshwaran, Mullapudi Rambabu, Ajay Choudhary, V. Sridhar Reddy,
Abhijit Sengupta, Advs. for the Respondents.
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226                SUPREME COURT REPORTS                      [2018] 14 S.C.R.


A           The Judgment of the Court was delivered by
            MOHAN M. SHANTANAGOUDAR, J.
              1. These appeals are directed against the common judgment in
      Letters Patent Appeal No. 323 of 1992 and Appeal Nos. 2959 and 2960
      of 2001 dated 11 September, 2003 passed by the High Court of Judicature
B     of Andhra Pradesh at Hyderabad. The appellants herein were the
      plaintiffs in O.S. No. 98 of 1984 on the file of the Subordinate Judge,
      Bhimavaram (formerly O.P. No.124/1980), and O.S. No. 97 of 1984 on
      the file of the Subordinate Judge, Bhimavaram (formerly O.P. No.10/
      1982). They were the defendants in O.S. No. 72 of 1983 on the file of
C     the Subordinate Judge, Bhimavaram (formerly O.P. No.32/1978 on the
      file of the Subordinate Judge, Narsapur).
             2. O.S. No. 98 of 1984 was filed for partition of Schedule A
      property against Defendant Nos. 5 to 25. In this suit, only one alienation
      made by Veeraswamy (the plaintiff Lakshminarasamma’s son) was
D     assailed, though Veeraswamy had alienated various other properties
      through different sale deeds falling under Schedule A. O.S. No. 97 of
      1984 was filed for partition of Schedule A and B properties as well as
      for eviction of Defendant Nos. 26 to 125 and 127 from the said properties.
      O.S. No. 72 of 1983 was filed by one Sagi Subba Raju (one of the
      respondents in these appeals) for specific performance of an agreement
E     of sale dated 19.09.1974 executed by the late Veeraswamy covering an
      extent of 3 acres 56 cents in Revenue Survey Nos. 347 and 347/3 of
      Bhimavaram village.
             O.S. Nos. 97 of 1984 and 98 of 1984 (for partition of Schedule A
      and B properties) were dismissed by the trial Court and confirmed by
F     the first appellate Court. O.S. No. 72 of 1983 (suit for specific
      performance) was decreed partly, directing sale of 1/3rd of the property
      in favour of the plaintiff Sagi Subba Raju, and such decree was confirmed
      by the first appellate Court. Feeling aggrieved by these judgments and
      decrees, the unsuccessful appellants filed appeals before the High Court.
G     So also, Sagi Subba Raju, who was to get 1/3rd of the property in the suit
      for specific performance filed L.P.A. No. 323 of 1992 before the High
      Court. All these appeals were heard together by the High Court and
      decided against the appellants herein, which means that the judgments
      and decrees of dismissal passed in O.S. Nos. 97 & 98 of 1984 were
      confirmed by the Division Bench of the High Court also. Thus, there
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   SUNKARA LAKSHMINARASAMMA (D) BY LRs. v. SAGI                                227
    SUBBA RAJU [MOHAN M. SHANTANAGOUDAR, J.]

are concurrent findings of three Courts in respect of those two suits          A
filed by appellants for partition against the appellants herein. In respect
of O.S. No. 72 of 1983 also, the Division Bench proceeded to grant a
decree, as prayed for, in favour of Sagi Subba Raju and against the
appellants herein. In other words, the suit for specific performance also
was decreed fully against the appellants herein. Hence, the appellants
                                                                               B
are before this Court.
       3. Shri A. Subba Rao, learned advocate appearing on behalf of
the appellants, taking us through the material on record, submits that the
Courts below were not justified in concluding that the bequests (Wills)
relied upon by the defendants, i.e. Will dated 14.08.1932 (Exhibit B4/
Ex.P1) in respect of Schedule A property and the Will dated 05.10.1968         C
(Exhibit B106/Ex. P2) in respect of Schedule B property executed for
the benefit of Veeraswamy, were proved; that the plaintiffs have got 2/
3rd share in the suit properties and therefore the bequests (Exhibits B4
and B106) will not confer any right to the beneficiary in excess of
remaining 1/3rd of the properties. Lastly, he submitted that the Defendant     D
Nos. 5 to 125 & 127, being the purchasers of the properties from
Veeraswamy (in whose favour the Wills were executed), are liable to be
evicted inasmuch as Veeraswamy did not have any right, title or interest
over the suit properties to the full extent, on the other hand, Veeraswamy
had only 1/3rd share in the suit properties.
                                                                               E
       4. Per contra, learned counsel appearing on behalf of the
respondents contends that the judgment of the Division Bench of the
High Court is just and proper and needs no interference. The trial Court,
the first appellate Court and the Division Bench of the High Court have
held that Exhibit B4 and Exhibit B106 are proved in accordance with
law and consequently Veeraswamy became the owner of the property               F
from the said Wills. He further submitted that the defendants/purchasers
have been in peaceful possession of the suit properties for more than 40
to 50 years and some of the defendants have even alienated the properties
to third parties. Lastly, he submitted that the appeals are not maintainable
since a number of defendants (purchasers from Veeraswamy) were                 G
deleted from the array of parties by the appellants herein, and some of
the defendants have died during the pendency of the suits as well as the
first appeals and second appeals and their legal representatives were
not brought on record by the appellants herein. Even before this Court,
some of the defendants/respondents have expired. The appellants have
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228                 SUPREME COURT REPORTS                       [2018] 14 S.C.R.


A     not bothered to bring on record the legal representatives of such deceased
      defendants. As a result, the decree passed in favour of the deceased
      and deleted defendants holding that Veeraswamy had the right to sell
      the property has attained finality, and consequently the sales made in
      favour of such defendants have attained finality too. In other words, the
      validity of the Wills as well as that of the sale deeds stands confirmed in
B
      respect of the deceased/deleted defendants and therefore these appeals,
      which are pending consideration in respect of other defendants before
      this Court, are liable to be dismissed in view of the fact that in case any
      order is passed adverse to the interest of the respondents herein/remaining
      defendants, the same would be conflicting with the judgments and decrees
C     which are already confirmed as against the deceased/deleted defendants.
             5. Exhibit B4, the Will dated 14.08.1932, pertains to Schedule A
      property. The said Will was executed by Sunkara Padmanabhudu, who
      was admittedly the owner of the Schedule A properties. He had no
      issue. His wife also expired shortly after his death. The beneficiary
D     under the said Will was Veeraswamy, who is none other than the grandson
      of Sunkara Venkataramaiah (the brother of Sunkara Padmanabhudu).
      Exhibit B106, the Will dated 05.10.1968 pertains to Schedule B property.
      The said Will was executed by Laxmipathi (the father of Veeraswamy)
      in favour of his son Veeraswamy. Sunkara Padmanabhudu expired on
      20.08.1932 and Laxmipathi died on 21.01.1969. Thus, Veeraswamy
E     became the owner of Schedule A and B properties, after the demise of
      Sunkara Padmanabhudu and Laxmipathi. There is nothing on record to
      show that the properties in Schedule B were the joint properties of
      Laxmipathi and his son. So also, it is not established by the plaintiffs that
      Schedule B properties were available for partition. There are concurrent
F     findings of three Courts on the said point against the appellants/plaintiffs
      in partition suits. The plaintiff Laxminarasamma is the second wife of
      Laxmipathi, who has not specifically questioned the alienations made by
      her son Veeraswamy in favour of Defendant Nos. 5 to 125 by filing
      O.S. Nos. 97 & 98 of 1984. There is no prayer by her for getting the
      sale deeds cancelled. All the three Courts concurrently on facts have
G     concluded that both the Wills are proved. Even before us, the findings of
      the validity of the Wills etc. have not been seriously disputed by the
      appellants. Even otherwise, on going through the judgments of the three
      Courts, we find that the reasons assigned and the conclusions arrived at
      in respect of proof of both the Wills are just and proper. Hence, no
H     interference is called for.
   SUNKARA LAKSHMINARASAMMA (D) BY LRs. v. SAGI                                  229
    SUBBA RAJU [MOHAN M. SHANTANAGOUDAR, J.]

       6. Since Veeraswamy was the sole owner of the properties by               A
virtue of Exhibits B4 and B106 Wills, naturally he had the right to alienate
the properties. Defendant Nos. 5 to 125 and 127 had purchased the
properties for valuable consideration from Veeraswamy. As mentioned
supra, the alienations made in favour of these defendants/purchasers
were not questioned by the appellants in the aforementioned two suits
                                                                                 B
for partition. Be that as it may, since we find that the Courts below are
justified in concluding that the sales made in favour of Defendant Nos. 5
to 125 and 127 are just and proper and as they are bona fide purchasers
for valuable consideration, no interference is called for.
        7. Shri A. Subba Rao, learned counsel for the appellants was
however forceful in his arguments, insofar as the suit for specific              C
performance is concerned. According to him, the appellants herein
(defendants in the suit for specific performance) would be put to hardship
if the decree for specific performance is confirmed, inasmuch as there
has been a huge escalation in the price of the properties since the
agreement of sale. Such plea of escalation in price cannot be accepted           D
in view of the fact that the appellants in the first instance do not have the
right to question the agreement of sale. As mentioned supra, since
Veeraswamy was the absolute owner of the properties including the
property involved in the suit for specific performance, he had the right to
enter into an agreement of sale also. This property was bequeathed to
Veeraswamy under Exhibit B4 Will by Padmanabhudu. Hence,                         E
Veeraswamy was the sole owner of the property. Consequently, he had
entered into an agreement of sale with Sagi Subba Raju, as far back as
on 19.09.1974. The suit was filed in the year 1978, which was later
transferred to another Court and the same was re-numbered as O.S.
No. 72 of 1983. Since 1978, this litigation is being fought by the prospective   F
vendee. The property of about three and half acres was agreed to be
sold by Veeraswamy in favour of the prospective vendee in the year
1974 for a sum of Rs.51,000/. Such price was agreed to between the
vendor as well as the prospective vendee. This Court cannot imagine
the value of the property as it stood in the year 1974 in the said area, i.e.
at Bhimavaram village in Andhra Pradesh. Be that as it may, we find              G
that hardship was neither pleaded nor proved by the appellants herein
before the trial Court. No issue was raised relating to hardship before
the trial Court. A plea which was not urged before the trial Court cannot
be allowed to be raised for the first time before the appellate Courts.
Moreover, mere escalation of price is no ground for interference at this         H
230                 SUPREME COURT REPORTS                     [2018] 14 S.C.R.


A     stage (see the judgment of this Court in the case of Narinderjit Singh
      vs. North Star Estate Promoters Limited, (2012) 5 SCC 712). Added
      to it, as mentioned supra, the appellants do not have the locus standi to
      question the judgment of the Division Bench since they are not the owners
      of the property. As a matter of fact, Veeraswamy, the vendor of the
      properties, had entered the witness box before the trial Court and
B
      supported all his alienations in favour of the defendants. Therefore, in
      our considered opinion, the Division Bench has rightly concluded in favour
      of Sagi Subba Raju and against the appellants and granted the decree
      for specific performance.
             8. In any event, Shri Thomas P. Joseph, learned senior advocate
C     appearing on behalf of the respondents is justified in contending that
      these appeals are not maintainable since a number of defendants against
      whom the relief is sought/claimed have either been deleted from the
      array of parties, or are dead. The legal representatives of such deceased
      defendants have not been brought on record. Even before this Court,
D     Respondent No.7 (D8), Respondent No.8 (D9), Respondent No.9 (D10)
      and Respondent No.11 (D13) in Civil Appeal No. 4382/2016 @ SLP(C)
      No. 20376/2004 have died. Their legal representatives have also not
      been brought on record. It is relevant to note here itself that Defendant
      Nos. 4, 6, 36, 50, 54, 58, 67, 69, 73, 77, 82, 92, 93, 113, 120 and 127
      expired during the pendency of the matter before the trial Court in O.S.
E     No. 97 of 1984. So also, Defendant Nos. 20, 53, 64 and 118 have also
      died and their legal representatives have also not been brought on record.
             9. Order 22 Rule 4, CPC lays down that where within the time
      limited by law, no application is made to implead the legal representatives
      of a deceased defendant, the suit shall abate as against a deceased
F     defendant. This rule does not provide that by the omission to implead
      the legal representative of a defendant, the suit will abate as a whole. If
      the interests of the co-defendants are separate, as in the case of co-
      owners, the suit will abate only as regards the particular interest of the
      deceased party. In such a situation, the question of the abatement of the
G     appeal in its entirety that has arisen in this case depends upon general
      principles. If the case is of such a nature that the absence of the legal
      representatives of the deceased respondent prevents the court from
      hearing the appeal as against the other respondents, then the appeal
      abates in toto. Otherwise, the abatement takes place only in respect of
      the interest of the respondent who has died. The test often adopted in
H
   SUNKARA LAKSHMINARASAMMA (D) BY LRs. v. SAGI                                   231
    SUBBA RAJU [MOHAN M. SHANTANAGOUDAR, J.]

such cases is whether in the event of the appeal being allowed as against         A
the remaining respondents there would or would not be two contradictory
decrees in the same suit with respect to the same subject matter. The
court cannot be called upon to make two inconsistent decrees about the
same property, and in order to avoid conflicting decrees the court has no
alternative but to dismiss the appeal as a whole. If on the other hand,
                                                                                  B
the success of the appeal would not lead to conflicting decrees, then
there is no valid reason why the court should not hear the appeal and
adjudicate upon the dispute between the parties. In the matter on hand,
the absence of certain defendants who have been deleted from the array
of parties along with the absence of legal representatives of a number of
deceased defendants will prevent the court from hearing the appeals as            C
against the other defendants. We say so because in the event of these
appeals being allowed as against the remaining defendants, there would
be two contradictory decrees in the same suit in respect of the same
subject matter. One decree would be in favour of the defendants who
are deleted or dead and whose legal representatives have not been brought
                                                                                  D
on record; while the other decree would be against the defendants who
are still on record in respect of the same subject matter. The subject
matter in the suit is the validity of the two Wills. The Courts including the
Division Bench of the High Court have consistently held that the two
Wills are proved, and thus Veeraswamy being the beneficiary under the
two Wills had become the absolute owner of the suit properties in question.       E
Such decree has attained finality in favour of the defendants who are
either deleted or dead and whose legal representatives have not been
brought on record. In case these appeals are allowed in respect of the
other defendants, the decree to be passed by this Court in these appeals
would definitely conflict with the decree already passed in favour of the
                                                                                  F
other defendants. As mentioned supra, the Court cannot be called upon
to make two inconsistent decrees about the same subject matter. In
order to avoid conflicting decrees, the Court has no alternative but to
dismiss the appeals in their entirety (see the judgment of this Court in the
case of Shahazada Bi vs. Halimabi, (2004) 7 SCC 354).
     10. In view of the above, the appeals fail not only on the ground of         G
non-maintainability, but also on merits, and are dismissed.

Ankit Gyan                                                   Appeals dismissed.


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