REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 4380­4382 OF 2016

SUNKARA LAKSHMINARASAMMA (D) BY LRs. ..APPELLANTS

VERSUS

SAGI SUBBA RAJU & OTHERS ETC. ..RESPONDENTS

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

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 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.

1

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 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 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 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 the first appellate Court. O.S. No. 72 of 1983

2

(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.  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 are concurrent findings of

three Courts in respect of those two suits 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 are before this Court.

3. Shri A. Subba Rao, learned advocate appearing on behalf of

the appellants, taking us through the material on record,

3

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 (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  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.

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

4

became the owner of the property 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 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

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 respect of the

deceased/deleted defendants and therefore these appeals, which

are pending consideration in respect of other defendants before

5

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  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 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 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

6

Schedule  B properties  were available for partition. There are

concurrent 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 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

interference is called for.

6. Since Veeraswamy 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

Veeraswamy. As mentioned supra, the alienations made in favour

of these defendants/purchasers were not questioned by the

7

appellants in the aforementioned two suits 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

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 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, Veeraswamy was the sole owner of the

8

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 re­numbered as O.S. No. 72 of

1983.   Since 1978, this litigation is being fought by the

prospective 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 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 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

9

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

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 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,  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. No. 97 of 1984. So also, Defendant

10

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 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 co­owners, 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 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 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

11

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, 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 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 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

12

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. 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  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 non­maintainability, but also on merits, and are dismissed.

               ……………………………J                   [ N.V. RAMANA]

                                …......……………………J

13

       [MOHAN M. SHANTANAGOUDAR]

NEW DELHI;                                ……………………………J. NOVEMBER 28, 2018. [MUKESHKUMAR RASIKBHAI SHAH]

14