Sugni Devi Thr. LRs. Vs. Jodhi Devi Thr. LRs.
EmailAppeal: Civil Appeal No. 3521 of 1996
Petitioner: Sugni Devi Thr. LRs.
Respondent: Jodhi Devi Thr. LRs.
Apeal: Civil Appeal No. 3521 of 1996
Judges: A.P. MISRA & RUMA PAL, JJ.
Date of Judgment: Jul 26, 2000
Head Note:
CIVIL LAW
Civil Procedure Code, 1908
Order 22, Rules 3, 4, 9 – Abatement – Transfer by sale and question of adoption – Death of transferor and also of adoptor – LRs. not brought on record – No application for substitution. Held that appeals abate. Hence, no case of interference.
(Para 3)
JUDGEMENT:
ORDER
Civil Appeal No. 3521 of 1996
1. Heard learned Counsel for the parties.
2. The appellant in this appeal and C.A. No. 3520/96 are plaintiffs. A preliminary objection has been raised regarding the abatement of this appeal in view of the death of all the three defendants, i.e., (1) Naraini Devi who died on 1st July, 1984, (2) Sugni Devi who died on 18th February, 1976 and (3) Ram Prasad who died on 15th June, 1988. The suit of the appellant was dismissed on the 26th April, 1977. Appeal was filed which is Appeal No.2 of 1977 which was also dismissed but by default on the 1st June, 1988. It is only on 19th July, 1990 an application for restoration was made which was also dismissed on the 17th November, 1990. The appeal against this to the High Court also stood dismissed on the 23rd December, 1994. Aggrieved by that, the present appellant has filed this appeal.
3. The short facts for the disposal of this appeal are, that Naraini Devi executed a sale deed in favour of Ram Prasad, the defendant no.3. She died during the pendency of the appeal but her LRs. were not brought on record. The submissions made by the learned Counsel for the appellant was that Naraini Devi executed a sale deed in favour of the aforesaid defendant no. 3, hence, it is the vendee who becomes the necessary party as transferee. Thus non-substitution of the LRs. of Naraini Devi could have no effect. But there is another hotly contested issue, viz., the question of the adoption of the plaintiff, alleged to have been made by the husband of Smt. Naraini Devi and Naraini Devi has deposed against this adoption. In fact the plaintiff’s case is that he was adopted by Naraini Devi’s husband Chhotelal. In view of this, Naraini Devi’s LRs. become necessary party. Similarly, even Ram Prasad defendant no. 3 died on the 15th June, 1988 and his heirs were not brought on record, while making an application for the restoration by the appellant . Even according to the learned Counsel for the appellant, vendee is the necessary party and deceased Ram Prasad was a vendee. A faint submission is, since Mahabir Prasad’s name is brought in the application for restoration as respondent no.7 who is the beneficiary under the Will executed by Ram Prasad, hence, deceased heir is already on record. This submission is misconceived. We do not find any such application for substitution being made by the appellant showing all this. Mere statement at the bar that there are no heirs of Smt. Naraini Devi and respondent no.7 is the only heir under the said Will cannot be accepted. The heirs of Naraini Devi, if any, do not get any opportunity to contest whether respondent no.7 is the only heir as beneficiary under a Will. This is a case where the parties are contesting two main issues, first adoption and second transfer. Since the LRs. of the said two deceased persons were not brought on record, the appeal abated. This apart, both the courts below including the High Court even otherwise have dismissed the case against the appellant. For all these reasons, we do not find the submissions made on behalf of the appellant have any merit and hence not a fit case to interfere.
4. This appeal is accordingly dismissed. Costs on the parties.
Civil Appeal No. 3520 of 1996
5. In view of the facts that we have dismissed Civil Appeal No. 3521 of 1996 today, the present appeal also fails as the said findings become res-judicata in this appeal. Accordingly, this appeal is dismissed. Costs on the parties.
Civil Appeal No. 3521 of 1996
1. Heard learned Counsel for the parties.
2. The appellant in this appeal and C.A. No. 3520/96 are plaintiffs. A preliminary objection has been raised regarding the abatement of this appeal in view of the death of all the three defendants, i.e., (1) Naraini Devi who died on 1st July, 1984, (2) Sugni Devi who died on 18th February, 1976 and (3) Ram Prasad who died on 15th June, 1988. The suit of the appellant was dismissed on the 26th April, 1977. Appeal was filed which is Appeal No.2 of 1977 which was also dismissed but by default on the 1st June, 1988. It is only on 19th July, 1990 an application for restoration was made which was also dismissed on the 17th November, 1990. The appeal against this to the High Court also stood dismissed on the 23rd December, 1994. Aggrieved by that, the present appellant has filed this appeal.
3. The short facts for the disposal of this appeal are, that Naraini Devi executed a sale deed in favour of Ram Prasad, the defendant no.3. She died during the pendency of the appeal but her LRs. were not brought on record. The submissions made by the learned Counsel for the appellant was that Naraini Devi executed a sale deed in favour of the aforesaid defendant no. 3, hence, it is the vendee who becomes the necessary party as transferee. Thus non-substitution of the LRs. of Naraini Devi could have no effect. But there is another hotly contested issue, viz., the question of the adoption of the plaintiff, alleged to have been made by the husband of Smt. Naraini Devi and Naraini Devi has deposed against this adoption. In fact the plaintiff’s case is that he was adopted by Naraini Devi’s husband Chhotelal. In view of this, Naraini Devi’s LRs. become necessary party. Similarly, even Ram Prasad defendant no. 3 died on the 15th June, 1988 and his heirs were not brought on record, while making an application for the restoration by the appellant . Even according to the learned Counsel for the appellant, vendee is the necessary party and deceased Ram Prasad was a vendee. A faint submission is, since Mahabir Prasad’s name is brought in the application for restoration as respondent no.7 who is the beneficiary under the Will executed by Ram Prasad, hence, deceased heir is already on record. This submission is misconceived. We do not find any such application for substitution being made by the appellant showing all this. Mere statement at the bar that there are no heirs of Smt. Naraini Devi and respondent no.7 is the only heir under the said Will cannot be accepted. The heirs of Naraini Devi, if any, do not get any opportunity to contest whether respondent no.7 is the only heir as beneficiary under a Will. This is a case where the parties are contesting two main issues, first adoption and second transfer. Since the LRs. of the said two deceased persons were not brought on record, the appeal abated. This apart, both the courts below including the High Court even otherwise have dismissed the case against the appellant. For all these reasons, we do not find the submissions made on behalf of the appellant have any merit and hence not a fit case to interfere.
4. This appeal is accordingly dismissed. Costs on the parties.
Civil Appeal No. 3520 of 1996
5. In view of the facts that we have dismissed Civil Appeal No. 3521 of 1996 today, the present appeal also fails as the said findings become res-judicata in this appeal. Accordingly, this appeal is dismissed. Costs on the parties.
