When Does Death Of A Co-Appellant Result In The Abatement Of Appeal As A Whole? SC Answers[Read Judgment]

In the case Hemareddi(died through LRs) vs Ramachandra Yallappa Hosmari and others, the Supreme Court had occasion to deal with a situation where the death of one of the appellants led to the abatement of appeal as a whole.

The appeal arose out of a suit which was instituted by two brothers jointly for declaration that the adoption of the first defendant was invalid and therefore he had no right in the joint properties of the plaintiffs. The trial court dismissed the suit. The matter was taken in appeal to the High Court. During the pendency of appeal, one of the brothers died. But no steps were taken to bring on record the legal representatives of the deceased brother. The appeal was continued by the surviving brother. The High Court dismissed the appeal holding that entire appeal stood abated as a whole, as the abatement in respect of the deceased brother was not set aside and his legal representatives were not brought on record. Challenging this, appeal was filed in the Supreme Court.

The Supreme Court bench of Justices Ashok Bhushan and K M Joseph surveyed a lot of precedents which discussed the circumstances under which the abatement as against one of the parties operated against the appeal as a whole.

Based on this, the Court noted that if the decree is joint and indivisible and the situation is such that it would lead to irreconcilable decrees between the parties, the appeal will abate as a whole. 

The judgment quoted from the precedent State of Punjab vs. Nathu Ram AIR 1962 SC 89 as follows : 

Courts will not proceed with an appeal: (a) when the success of the appeal may lead to the Court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which 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 ineffective, that is to say, it could not be successfully executed.

"If the decree is joint and indivisible, the appeal against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent", the judgment quoted from Nathu Ram(supra).

The Court also referred to the decision in Sardar Amarjit Singh Kalra (Dead) by LRS. & Ors. vs. Pramod Gupta (Smt.)(Dead) by LRS. & Ors. 2003 (3) SCC 272., which was an appeal from a land acquisition claim, where several persons with independent rights had come together in a single appeal. In such a case, abatement as against one of the appellant will not affect other appellants, held the court. Because, the appellants had distinct, independent claims, and the decree was divisible. 

Coming to the facts of the case, the Court noted that the right which was set up by the appellant alongwith his late brother was joint. It was not a case where their claims were distinct claims. This is not the situation which was present in Sardar Amarjit Singh Kalra case, where several persons came together and sought relief in one proceeding. 

If the High Court were to allow the appeal of one of the brothers, it would be contradictory to the decree of the trial court as against the deceased brother, which had attained finality. Thus, there would be two decrees, one upholding the adoption and another invalidating the adoption, in the same proceeding. That is impermissible in law.

"The decree, which the appellant, if successful in the appeal, would obtain, would be absolutely contrary to the decree which has also attained finality between his late brother and the defendants. They are mutually irreconcilable, totally inconsistent. Laying one side by side, the only impression would be that one is in the teeth of the other. In one, the suit is dismissed whereas in the other, the suit would have been decreed", observed Justice K M Joseph in the judgment written for the bench.

The appellant argued in the SC that the High Court had permitted him to proceed with the appeal by an interim order, and this would operate as estoppel. This argument was rejected by the Court observing :

"The impact of death of the late brother of the appellant qua the proceeding is one arising out of the incompatibility of a decree which has become final with the decree which the appellant invites the appellate court to pass. In such circumstances, the mere fact that the appellant was permitted to prosecute the appeal by an interlocutory order would not be sufficient to tide over the legal obstacle posed by the inconsistent decree which emerges as a result of the failure to substitute legal representative of the late brother and the abating of the appeal filed by his late brother".

Consequently, the appeal was dismissed.

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