CHATUR SINGH Vs. GAYARAM ALIAS GENDULAL

JUDGEMENT

(1.) IN this Second Appeal by the unsuccessful Defendants/Appellants, the following substantial question of low arises for determination :

(2.) THE following facts have not been disputed in this appeal :

(3.) IT is not in dispute that during the pendency of the Civil Suit, Daulat Singh had died and his legal representatives namely Sushila (widow), Chatur Singh (Son) and Bahartin (daughter) were brought on record who contested the suit. Sushila, widow of Daulat Singh also died during pendency of First Appeal and her name was deleted, since her legal representatives were already on record. Thus, Chatur Singh and Bahartin were contesting Appellants in First Appeal also. IT has been brought on record that Bahartin had died on 22.12.1998 i.e. much before the filing of Second Appeal on 29.01.1999. The very fact that the Appellants while preferring Second Appeal had impleaded Bahartin (already died) as a Respondent goes to show that their interests with the legal representative of Bahartin were in conflict. In this view of the matter, the judgment and decree passed against Bahartin Bai in First Appeal had become final. In Ramagya Prasad Gupta and Ors. Brahmadeo Prasad Gupta and Anr. v. Murli Prasad and Ors. : AIR 1972 S.C. 1181, it was held that upon death of one of the Respondents and upon failure to bring legal representatives on record, the appeal would abate as a whole. The Apex Court has laid down three tests to determine whether the appeal abates as a whole in such circumstances. IT held that the Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Counts coming to a decision which be in conflict with the decision between the Appellant and the deceased Respondent, and, therefore, it would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the Appellant and the deceased Respondent; (b) when the Appellant could not have brought the action for the necessary relief against those Respondents alone who are still before the Court and (c) when the decree against the surviving Respondents, if the appeal succeeds, be successfully executed. These three tests are not cumulative tests. Even if One of them is satisfied, the Court may dismiss the appeal. In Sardar Amarjit Singh Kalra by L.Rs. v. Pramod Gupta (Smt.) by L.Rs. and Ors. : (2003) 3 SCC 272 it was held by the Apex Court that whether the judgment and decree passed in the proceedings vis-a-vis the remaining parties would suffer the vice of contradictory or inconsistent decree is also a relevant test.