Case Note & Summary
The Supreme Court dismissed an appeal arising from a suit challenging the validity of an adoption. The appellants, two brothers, had filed a suit seeking a declaration that the first defendant was not the adopted son of the second defendant and had no title or interest over the suit property, which they claimed was joint family property. The trial court dismissed the suit, upholding the adoption. The brothers filed a first appeal before the High Court. During the pendency of the appeal, one of the brothers died, and his legal representatives were not brought on record. The High Court held that the appeal abated as a whole, as the right to sue did not survive to the surviving appellant alone, and allowing the appeal to proceed would result in conflicting decrees: the trial court's decree upholding the adoption would become final as against the deceased appellant, while the High Court might pass a decree declaring the adoption invalid in favour of the surviving appellant. The Supreme Court affirmed this reasoning. It noted that under Order XXII Rule 3 CPC, where one of several plaintiffs dies and the right to sue does not survive to the surviving plaintiffs alone, the suit abates as against the deceased plaintiff if no substitution is made. The same principle applies to appeals. In this case, the right to sue did not survive to the surviving appellant alone because the estate of the deceased brother did not pass to the survivor by survivorship or otherwise. Therefore, the appeal abated as against the deceased brother. The Court further held that allowing the appeal to proceed would lead to two contradictory decrees regarding the same subject matter, which is impermissible. The appeal was accordingly dismissed.
Headnote
A) Civil Procedure - Abatement of Appeal - Order XXII Rule 3 CPC - Survival of Right to Sue - Where one of two joint appellants dies and the right to sue does not survive to the surviving appellant alone, failure to bring legal representatives on record results in abatement of the appeal as a whole if allowing the appeal would lead to conflicting decrees - Held that the appeal abated entirely as the decree of the trial court had become final qua the deceased appellant and a contrary decree in favour of the surviving appellant would create irreconcilable conflict (Paras 8-13). B) Hindu Law - Adoption - Validity - Joint Family Property - Suit for declaration that adoption was invalid and for injunction - Trial court upheld adoption; appeal by both plaintiffs - Death of one plaintiff during appeal - Since the right to sue did not survive to the surviving plaintiff alone, and the estate of the deceased did not pass to the survivor, the appeal abated as a whole to avoid conflicting decrees (Paras 10-13).
Issue of Consideration
Whether the appeal abated as a whole when one of two joint appellants died and his legal representatives were not brought on record, given that the right to sue did not survive to the surviving appellant alone and allowing the appeal would create conflicting decrees.
Final Decision
The Supreme Court dismissed the appeal, holding that the High Court correctly held that the appeal abated as a whole. The right to sue did not survive to the surviving appellant alone, and allowing the appeal to proceed would result in irreconcilable conflicting decrees.
Law Points
- abatement of appeal
- survival of right to sue
- conflict of decrees
- Order XXII Rule 3 CPC
- joint family property
- adoption validity
