Judgment:
1. Plaintiffs 1 and 2 have filed a suit in O.S. No. 113/1992 on the file of the Civil Judge, Dharwad for the relief of (i) declaration that the defendant No. 1 is not the adopted son and has no title, interest or right over the suit property; (ii) defendants be restrained by permanent injunction from disturbing the joint possession of the suit agricultural land of the plaintiff and defendant No. 2 and (c) plaintiff be awarded cost of the suit.
2. The fact leading to the filing of the suit can be summarized as follows:
One Govindareddi, the propositus died in 1946 leaving behind two sons and one daughter Ramareddi, Tulasawwa and Basavareddi. Plaintiffs 1 and 2 are the children of Ramareddi, defendant No. l is the adopted son of defendant No. 2. Defendant No. 2 is the wife of Basavareddi. The plaintiffs' case is that Govindareddi died in 1946 as the head and manager of the Hindu joint family consisting of himself, Ramareddi, and Basavareddi. The suit properties are the joint family properties of Govindareddi and his sons. It appears the plaintiffs haw filed another suit in O.S. No. 66/1991 against defendant No. 2 for a declaration that she has no right, title or interest in the suit properties and that the plaintiffs are in occupation and enjoyment of the suit properties and consequently for relief of permanent injunction. The said suit, it appears is still pending. It is the further case of the plaintiffs that notwithstanding the filing of the said suit, temporary injunction is operating against defendant No. 2, she at the instigation of some of the ill advisors has created a false document of an adoption deed dated 27th April 1991 adopting defendant No. l. The defendants have collusively created the said baseless, false adoption deed taking defendant No. l in adoption by defendant No. 2 on 16.05.1983. According to the plaintiffs, no ceremonies have taken place and there was no incident of giving defendant No. l by defendants 3 and 4 to defendant No. 2. The story is imaginary etc. The sum and substance is the total denial of adoption of defendant No. l by defendant No. 2.
3. The defendants have entered appearance and have contested the suit inter alia contending that the suit is not maintainable and the necessary ceremonies for adoption have taken place and defendant No. l is the adopted son of defendant No. 2
4. The learned trial Judge, having considered the oral and documentary evidence, has dismissed the suit holding that the plaintiffs have failed to prove that all necessary formalities regarding adoption having not taken place. The said judgment and decree is questioned in this appeal.
5. Before embarking upon the merits and demerits and the contentions of the learned Counsel appearing for the plaintiffs and the defendants, it is necessary to consider the preliminary objection raised by Mr. Padubidri Raghavendra Rao, learned Counsel appearing for the defendants. He submits that the second plaintiff having died during the pendency of the appeal and the appeal having abated insofar as the plaintiff No. 2 is concerned, the proceedings as a whole would abate and does not survive for consideration inasmuch as the decree which is passed by the Courts below is one and indivisible.
6. Mr. V. Tarakaram, learned senior counsel appearing for the plaintiffs would submit that the fact that one of the plaintiffs having died, the proceedings do not abate. He would also submit that the first plaintiff being the brother of deceased second plaintiff, would succeed to his interest and would be a crowner and consequently the question of the entire appeal abating does not arise. He would submit that the first plaintiff can still continue with the proceedings.
7. Before adverting to the submission made by the learned Counsel appearing for the parties, it is necessary to refer to certain events which have transpired in this appeal.
8. When the matter was listed on 20th July 2001, this Court observed thus:
It is stated by the learned Counsel for the appellant that the second appellant (plaintiff No. 2) is dead and in view of the death of second appellant, the matter is adjourned by two weeks to enable the appellants' counsel to take steps.
9. The appeal was relisted on 10.09.2001. This Court has observed thus:
It is submitted that appellant No. 2 died about 5 to 6 months ago. No steps are taken to bring the LRs of appellant No. 2 on record.
Hence the appeal filed against the appellant No. 2 abates. Memo filed by appellant No. l submitting himself and appellant No. 2 are brothers and crowners of suit schedule property. Since the LRs of appellant No. 2 have not evinced interest to prosecute the appeal, appellant No. l prays permission to prosecute the appeal. Accordingly permission is granted.
10. It is to be noticed that the appeal of appellant No. 2 (plaintiff No. 2) as of now has abated which would necessarily mean that the judgment and decree passed by the learned trial Judge insofar as rejection of the contention of the plaintiffs regarding the said adoption is invalid. The said finding stands confirmed. It is to be noticed that the law as to the divisibility or indivisibility of the judgment and decree and whether the proceedings would continue, fell for consideration in several decisions.
11. In the case of State of Punjab v. Nathu Ram reported in : [1962]2SCR636 , it is observed thus:
The question whether a Court can deal with such matters or not, will certainly depend on facts of each case and therefore, no exhaustive statement can be made about the circumstances when this possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can said to be properly constituted or can be said to have all the necessary parties for the said decision of the controversy before the Court. The test to determine this has been discussed in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Courts coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Courts passing the 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 reliefs against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents. If the appeal succeeds, will be ineffective, that is to say, it could not be successfully executed.
12. Apparently, the test is that not all the three ingredients as stated in the above said decision are to be cumulatively shown. Even if one of them is satisfied, the Court having regard to the circumstances can hold that the appeal has abated in its entirety. In the case of Srichand and Ors. v. Jagdish Pershad Kishan Chand and Ors. reported in AIR 1966 SC 1437, the Apex Court has observed thus:
The appellate Court has no power to proceed with an appeal and to reverse and vary the decree in favour of application the plaintiffs or defendants under Order 41, Rule 4 when the decree proceeds oil a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned.
13. In the case of Ramappa Mallappa Karunnavar v. Vinayak Shripatharo Patwardhan reported in 1973(1) Mys. LJ 294, this Court has observed:
Now the question is whether the appeal has abated or not, I have seen earlier in the plaint a joint claim is made against all the defendant No. 2. the first appellate Court, as mentioned earlier decreed the suit in part against all the defendants. The High Court has dismissed the suit again all the defendants. In this Court relief asked for was again by the defendants. No separate claim was made against any of the defendants. Under these circumstances, quite clearly, the appeal has abated as a whole under order XXII Rule 4 of CPC. The appeal is accordingly dismissed. No costs.
14. This passage is quoted by this Court from a decision of the Apex Court in the case of Babu Sukhram Singh v. Ram Dular Singh reported in AIR 973 SC 204
15. Apparently, in the case on hand, it is to be noticed that the plaintiffs 1 and 2 claimed that they are the members of the joint family and they have joint interest. Both of them in tandem, have questioned the adoption of the defendant No. l by defendant No. 2. The case of both, the plaintiff No. 1 and plaintiff No. 2 is one and the same. There cannot be any difference. The suit Sled by the plaintiffs is dismissed. Now when this Court has already passed an order holding that the proceedings and the appeal insofar as appellant No. 2 is concerned has abated, which would necessarily mean that the judgment and decree passed by the learned trial Judge holding that there is a valid adoption stands confirmed. This Court certainly cannot vary the judgment and decree and take a different view which would lead to anomalous situation. Insofar as one of the coparceners is concerned, the adoption is deemed to have been valid and insofar as the other coparcener is concerned, the adoption would be invalid. A reading of the plaint averments and the prayer would be a conclusive proof to show that the interest of plaintiffs 1 and 2 are one and the same. It cannot be said that the interest of plaintiff No. 2 has devolved upon plaintiff No. l and he can continue the proceedings as a crowner. Apparently, this would attract Section 6 of the Hindu Succession Act. This is not a case where the plaintiff No. l would become a crowner by survivorship. Proviso to Section 6 would clearly indicate that if the deceased has left the other legal heirs who are classified as Class-I, the survivor will not take the property of the deceased as a crowner. That is the case on hand. Apparently, a statement was made on an earlier occasion that the legal representatives of the plaintiff No. 2 have not evinced any keen interest to proceed with the matter. When that ia the case, I am of the view that the decree which is passed by the learned trial Judge is one and indivisible and there cannot be two conflicting decrees in respect of the same relief which is sought for by the plaintiffs. Insofar as the decisions which are cited by Mr. Tarakaram learned senior counsel ia concerned, it is to be noticed that those decisions are not applicable to the case on hand. In the case of Dattatraya Prahlad Mutalik Desai and Anr. v. Basawanappa Chanabasappa Mulgund reported in 1960 Mys. LJ 1028 is concerned it is to be noticed that was a case where one of the parties had died and this Court was of the opinion that since one of the superfluous parties had died pendent elite and since his LRs were not brought on record, the appeal does not abate. That is not the case here. In the case of Shivangouda v. Gangawwa reported in 1966(2) Mys.LJ 148, that was also a case where a crowner had sued against a trespasser. This Court was of the opinion that in a suit for ejectment a trespasser of the very property owned by him and others jointly or as crowners it is always open for one of the crowners to sue for recovery of the possession and other crowners are not necessary parties in a suit of this nature. The facts once again are altogether different.
16. As stated earlier, a suit was filed on the basis that they are the members of the joint family and the adoption of defendant No. l is not binding on the family.
Obviously, there cannot be two separate sets of decisions in respect of the said adoption. Having regard to the factual aspect, I am of the view that the appeal of plaintiff No. l does not survive for consideration. Consequently, the entire appeal stands abated.