When an appeal is filed against a joint and indivisible decree and one of the co-appellant dies and the legal representative of the deceased appellant is not brought on record, the appeal will abate against the surviving appellant also.

The Apex Court in Hemreddi (D) Through Lrs. versus Ramachandra Yallappa Hosmani and Ors. bearing no. Civil Appeal No. 4103 of 2008 decided on 07.05.2019 held that where appeal is being filed by more than one appellant against a joint and inseparable decree and one of the appellants die and his legal representatives are not impleaded then the appeal will abate as a whole.

Challenge

The factual matrix of this case is that one Mr. Govindareddi died in the year 1946 leaving his two sons and a daughter. The present suit was instituted by two brothers from one of the sons of Mr. Govindareddi, Late Mr. Shri Ram Reddy. The second defendant was the wife of the other brother, Late Mr. Basavareddi. The first defendant was the adopted son of the second defendant. The two brothers jointly filed a suit for the declaration that the adoption of the first defendant by the second defendant vide adoption document dated 27.04.1991 was invalid and therefore he had no right in the property of Govindareddi. The trial court dismissed the suit and held that the adoption was valid. Aggrieved by the trial court order, an appeal was filed before the High Court. While appeal was pending, one of the appellants died  and the surviving co-appellant brother sought permission of the High Court to proceed with the appeal on the ground that the legal representatives of the deceased appellant were not interested to proceed with the appeal and the High Court vide order dated 10.09.2001 allowed the surviving brother to proceed with the appeal. However, the High Court vide impugned order dismissed the appeal on the ground that the appeal got abated as a whole for not bringing the legal representative of the deceased co-appellant. Aggrieved by the order of the High Court, the appellants filed the present civil appeal before the Supreme Court.

The Appellant argued before the Apex Court that the appeal should not have been dismissed on the ground that the High Court itself allowed the appeal to be proceeded without impleading the legal representative and therefore rule of estoppel should apply against the High Court. The counsel for the Respondent, on the other hand argued that the order passed by the High Court dated 10.09.2001 will not operate as estoppel estopping them from deciding that the appeal has abated as a whole on the ground that it would lead to conflict of decrees as on one hand, the trial court has passed a decree upholding the adoption and if the appeal is being allowed and High Court decides to declare the adoption invalid, then there would be two contracting decrees with respect to the deceased brother, one of Trial Court, being final due to abatement and another by the High Court, for the appeal being joint and inseparable in nature which is not allowed in law, therefore, the Court should avoid such conflicting decrees.

The Court, after considering the arguments of the parties and the reasoning given by the High Court, dismissed the Appeal.

Held

The Apex Court while upholding the order of the High Court, held that if the appeal is against a decree being inseparable and joint, then death of one of the co-appellant and not impleading his legal representative would result in the whole appeal being declared abated. The Court further held that if the appeal is such that the more than one appellants are challenging distinct and independent decrees/ interest and rights and for the sake of convenience, they had joined as plaintiffs and the court passed a common order then decree should be treated as a mere combination of several decrees and not joint and inseparable for the purpose of abatement. The Court further held, relying upon the arguments of the Respondent that in the present case, the plaintiff/ appellants were seeking a declaration that the adoption of the first defendant was not proper and therefore, he does not have right over the joint property and the trial court has held that that the adoption is valid and if appeal is not abated as a whole and is allowed against the surviving brother then the order of the high court declaring the adoption invalid would result in two conflicting decrees which is not allowed in law and therefore, the decision of the High Court to abate the appeal as a whole is valid in the eyes of law and order dated 10.09.2001 would not work as estoppel.