JUDGMENT S.U. Khan, J.
1. Heard learned Counsel for the parties.
2. This second appeal was earlier allowed by this Court (by Hon'ble O.P. Jain, J., since retired) on 22.5.1997. Thereafter, review was filed, which was dismissed on 4.9.1998 by the same Hon'ble Judge. Thereafter, matter was carried to the Supreme Court in the form of Civil Appeals No. 7373 and 7374 of 2000. On 12.4.2007, the Supreme Court set aside the judgment of the High Court on the ground that substantial questions of law had not been framed before hearing and allowing the second appeal and the matter was remanded to the High Court for rehearing of the appeal after framing substantial questions of law.
3. After remand from the Supreme Court, three substantial questions of law were framed in this appeal on 18.7.2007, which are quoted below:
1. Whether the lower appellate court is justified in decreeing the plaintiffs' suit for cancellation of registered 'Will', the power-of-attorney as well as sale deed in absence of legal heirs of the plaintiffs respondents, i.e., Viswanath Tiwari for whom the trial court's decree has become final and their interest are inseparable?
2. Whether the decree passed by the lower appellate court is inconsistent in view of the fact that the joint decree passed by the trial court has become final for the heirs of Vishwanath Tiwari (deceased), plaintiff-respondent on the ground of the abatement of appeal/suit in respect of Viswanath Tiwari?
3. Whether in the facts and circumstances of the present case, the lower appellate court has misunderstood the scope of Section 68 of Indian Evidence Act?
4. During arguments at the final hearing stage of this appeal on 15.11.2007, Sri R. N. Singh, learned senior counsel for the appellants, argued only first and second substantial question of law (supra). Absolutely, no argument regarding Section 68 of Indian Evidence Act was advanced, hence there is no necessity to decide the said question.
5. This is defendants' second appeal. The suit (O.S. No. 446 of 1979) was filed by three plaintiffs, i.e., Vijai Shanker, Banke Lal and Viswanath Tiwari. Respondents No. 2 to 5 in this second appeal are legal representatives of Banke Lal and respondents No. 6 to 8 are legal representatives of Viswanath Tiwari. The suit was dismissed by the trial court (XV Additional Munsif, Azamgarh) on 1.4.1992. Against judgment and decree passed by the trial court, plaintiffs filed Civil Appeal No. 219 of 1992. Civil Judge, Azamgarh allowed the appeal on 23.5.1995, set aside the judgment and decree passed by the trial court and decreed the suit of the plaintiffs giving rise to the instant second appeal.
6. During pendency of civil appeal before lower appellate court, Viswanath Tiwari died. A belated substitution application was filed, which was rejected by the lower appellate court, however, it was observed that rejection of substitution application to bring on record legal representatives of Viswanath Tiwari would not abate the whole appeal or make the appeal defective or not maintainable. Learned Counsel for the appellants in this second appeal has argued that as far as plaintiff Viswanath is concerned, suit stood dismissed by the trial court, hence Judgment and decree passed by the lower appellate court decreeing the suit of the other two plaintiffs (including legal representatives of plaintiff No. 2) has given rise to two contradictory decrees in the sense that in respect of plaintiff Viswanath, suit stands dismissed while in respect of plaintiffs Vijai Shanker and Banke Lal (since deceased) and substituted by legal representatives at the trial court stage itself), suit stands decreed. Learned Counsel for the appellant has in support of his contention cited and placed reliance upon the same authorities of the Supreme Court, which were cited and relied upon when second appeal was decided earlier. The authorities are quoted below:
1. Rameshwar Prasad v. Shambehari Lal Jagannath ;
2. Union of India v. Ram Bohra ;
3. Ramagya Prasad Gupta v. Murli Prasad ;
4. Bakhshish Singh v. Arjan Singh ;
5. Mukhtiyar Singh v. Krishna Kaur ; and
6. Satguru Sharan Shrivastava v. Dwarka Prasad Mathur .
7. In the plaint, power-of-attorney and sale-deed alleged to have been executed by deceased Kamla Tiwari had been challenged and it had been stated that original plaintiffs No. 1 and 2, Vijai Shanker and Banke Lal Tiwari were the legal representatives of Kamla Tiwari and as the alleged power-of-attorney and sale deed were void, hence after death of Kamla Tiwari, original plaintiffs No. 1 and 2 inherited the property of Kamla Tiwari. It was further stated in the plaint that even though original plaintiff No. 3 Viswanath was distant family member of other two plaintiffs, however, during consolidation, shares had been separated and separate chaks had been allotted and in the absence of power-of-attorney and sale deed, plaintiffs No. 1 and 2 would have inherited the agricultural property in dispute belonging to Kamla Tiwari. Relief for cancellation/declaration as void of a 'Will deed' alleged to have been executed by Smt. Kamla Tiwari dated 30.7.1976 was also sought. Decree for permanent prohibitory injunction seeking to restrain the defendants from interfering in the possession of the plaintiffs was also sought. The only mention of plaintiff No. 3 Viswanath Tiwari was in para 12 of the plaint. The said paragraph translated into English reads as under:
that plaintiffs No. 1 and 2 since the time of death of Smt. Kamla Devi are in possession of lands of Kamla Devi mentioned below. On some lands, plaintiff No. 3 is also in possession through agreement.
8. Title docs not pass to a person if he is in possession on the basis of agreement. Bhumidhari land in Uttar Pradesh cannot be transferred through agreement and possession under U.P.Z.A. and L.R. Act, can be transferred only through registered sale deed/gift deed. Reading the whole plaint, it becomes quite clear that Viswanath Tiwari was a superfluous party. By maximum, he may be described as 'proper but not necessary party'. Even in his absence, the suit would have been perfectly maintainable.
9. The Supreme Court in Rant v. Santa Bala Debnath has held that death of a party (one of the defendants in the said case), against whom no relief is claimed nor any averment made in the plaint about the reasons for and the circumstances in which he was impleaded will not abate the appeal as a whole.
10. Supreme Court in Upper India Cable Co. v. Bal Kishan AIR 1984 SC 1381, has held that in case eviction suit is filed against tenant firm and partners of the firm are joined as mere proper parties, then on death of one partner transfer and failure to bring his legal representatives on record does not abate the appeal. Contrary view taken by the Allahabad High Court was reversed.
11. In respect of abatement of appeal due to death of one or some of the parties, the following authorities of the Supreme Court may also be noticed:
1. N. Khosla v. Rajlaksmi ;
2. Shahazada Bt v. Halimabi ;
3. S. Amarjit Singh Kalra v. Pramod Gupta (Constitution Bench).
12. In the Constitution Bench authority of 2003, it has been held that unless the decree is joint and inseparable, abatement of appeal against one does not render the whole appeal defective.
13. In the 2006 authority, it was held that if each respondent had distinct and separate share by metes and bounds in the suit property, then death of one and non-substitution of his heirs will not render the whole suit defective.
14. In the 2004 authority, It has been held that if interest of co-defendants are separate as in case of co-owners, then due to death of one of them, suit abates only as regards interest of deceased.
15. Accordingly, as it was not claimed in the plaint that Viswanath Tiwari would have jointly inherited the property alongwith other two plaintiffs after the death of Kamla Tiwari (Devi), hence death of Viswanath Tiwari and non-substitution of his heirs did not render the appeal before the lower appellate court defective. Accordingly, the substantial questions of law No. 1 and 2 (supra), are decided against the appellant and in favour of the respondents and second appeal is dismissed.