Appeal Against Joint Inseverable Decree Abates Entirely If Non-Substitution Of LRs Would Cause Inconsistent Decrees: J&K And Ladakh High Court
The Court dismissed two civil second appeals as abated, holding that a surviving appellant could not alone challenge a joint and inseverable ancestral property decree after the appeal had abated against the deceased co-appellant.
The Jammu and Kashmir and Ladakh High Court has held that where non-substitution of the legal representatives of a deceased party would make any appellate interference result in inconsistent decrees, the appeal would abate in its entirety.
The High Court held that an appeal against a joint and inseverable decree determining ancestral property shares could not be continued by one surviving appellant alone after the appeal had abated against the deceased co-appellant, whose legal representatives were not brought on record.
The Court was hearing two civil second appeals arising from consolidated suits concerning a declaration and injunction over ancestral property. During the pendency of the appeals, one of the appellants died, and applications filed by his legal representatives for setting aside the abatement and substitution had already been dismissed.
A Bench of Justice Sanjay Dhar observed: “… the question whether upon death of one of several parties during pendency of a suit or appeal, the suit or appeal would abate as a whole on account of non-substitution of legal heirs of deceased party, is a matter which has to be decided in the facts and circumstances of a particular case.
The Bench further added: “While deciding the said question, the Court should be mindful that it cannot pass inconsistent decrees. Thus, if due to non-substitution of LRs of a deceased party, the decree passed against a deceased party has attained finality by abatement of proceedings qua him, the Court cannot set aside or modify the decree under appeal, as the same would result in passing of inconsistent decrees. In such a situation, the appeal would abate in its entirety.”
Advocate Sheikh Hilal appeared for the appellants, while Senior Advocate Altaf Haqani appeared for the respondents.
Background
The dispute arose from two civil suits concerning ownership, possession and declaration over ancestral land. The suits were consolidated and, during trial, the parties agreed to the appointment of Commissioners for local inspection and determination of entitlement over properties that had devolved from their common ancestors.
The trial court passed a common decree on the basis of the compromise between the parties and the Commissioners’ reports, determining the shares of the parties and directing adjustment where any party was found holding excess land. The first appellate court dismissed the appeals against that decree.
The appellants then filed second appeals before the High Court. One of the appellants died during the pendency of the appeals. His legal representatives sought substitution, but their applications were dismissed. The question that remained was whether the surviving appellant could continue the appeals alone or whether the appeals had abated in entirety.
Court’s Observations
The Court first examined Order XXII of the CPC, noting that death of a plaintiff or defendant does not cause abatement if the right to sue survives. However, where the right does not survive to the surviving plaintiff or appellant alone, legal representatives must be brought on record.
The Court stated: “Rule 11 of Order XXII makes the application of said order to appeals as well. Thus, if one of the several appellants dies during the pendency of the appeal and the right to sue does not survive to the surviving appellant or appellants alone, the appeal as a whole would abate.”
The Court therefore framed the issue as whether the right to pursue the appeals survived to the sole remaining appellant.
The Court referred to Sardar Amarjit Singh Kalra v. Pramod Gupta (2003), State of Punjab v. Nathu Ram (1962), Ram Sarup v. Munshi (1963), and Suresh Chandra v. Parasram (2025), observing that whether an appeal abates wholly or only qua the deceased party depends on the facts of each case.
The Court noted that the controlling test is whether the decree under challenge is joint and inseverable, and whether continuing the appeal would create contradictory or inconsistent decrees.
Applying the law to the facts, the Court held that the decree under challenge determined shares of all parties in ancestral property and also prescribed the manner in which those shares were to be adjusted.
The Court held: “The said judgment and the decree is clearly joint and inseverable, inasmuch as it determines the shares of all the parties to the suit in respect of the ancestral property.”
The Court reasoned that if the surviving appellant alone were allowed to continue and succeed, the decree would be reopened for him while remaining final against the deceased appellant’s legal heirs and the defendants who had not challenged it.
The Court stated: “Thus, allowing appellant No.1 to proceed with the appeals alone would amount to passing of two conflicting decrees, one upholding the judgment and decree of the trial court qua the legal heirs of appellant No.2, and the other, reopening the whole issue of determination of shares of the parties in the ancestral property.”
The appellants relied on Order XLI Rule 4 CPC, arguing that one of several plaintiffs could maintain an appeal where the decree proceeded on a ground common to all.
The Court rejected the argument, relying on Suresh Chandra (2025), and held that Order XLI Rule 4 applies at the stage when an appeal is filed. Once all aggrieved plaintiffs or defendants have filed an appeal and one of them dies during pendency, Order XXII consequences follow.
The Court observed: “However, once an appeal is filed by all the plaintiffs or all the defendants aggrieved by a decree, and one of the parties dies during the pendency of the appeal, the provisions of Rule 4 of 41 Rule CPC would not come into play and the consequences of Order 22 of CPC would follow.”
The surviving appellant also argued that he represented the estate of the deceased appellant as his brother. The Court rejected this, distinguishing Shivshankara v. H.P. Vedavyasa Char (2023).
The Court noted that the deceased appellant was survived by daughters, who had themselves filed substitution applications. Since they represented his estate, the surviving brother could not be treated as a sufficient representation of the deceased appellant’s estate.
Conclusion
The High Court held that the decree under challenge was joint and inseverable and could not be challenged by the surviving appellant alone without impleading the deceased appellant’s legal heirs.
Accordingly, once the appeals had abated against the deceased appellant, they abated in their entirety. The appeals were dismissed as abated.
Cause Title: Gulam Ahmad Raina & Anr. v. Mst. Hameeda Akhtar & Ors.
Appearances
Appellants: Sheikh Hilal, Advocate, with Shaziya Kamal, Advocate
Respondents: Senior Advocate Altaf Haqani, with Asif, Advocate