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When Does Death Of A Co-Appellant Result In The Abatement Of Appeal As A Whole?

In CIVIL APPEAL NO.4103 OF 2008, HEMAREDDI vs RAMACHANDRA YALLAPPA HOSMANI, an appeal was brought before the Supreme Court out of a suit which was instituted by two brothers jointly for declaration that the adoption of the first defendant was invalid and therefore he had no right in the joint properties of the plaintiffs. The trial court dismissed the Courts will not proceed with an appeal: (a) when the success of the appeal may lead to the Court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject suit. The matter was taken in appeal to the High Court. During the pendency of appeal, one of the brothers died. But no steps were taken to bring on record the legal representatives of the deceased brother. The appeal was continued by the surviving brother. The High Court dismissed the appeal holding that entire appeal stood abated as a whole, as the abatement in respect of the deceased brother was not set aside and his legal representatives were not brought on record. Challenging this, appeal was filed in the Supreme Court.

The Supreme Court surveyed a lot of precedents which discussed the circumstances under which the abatement as against one of the parties operated against the appeal as a whole and came to the conclusion that there is no doubt that when in a suit filed by one or more litigants, and one of the dies, if the legal representative of the deceased litigant does not substitute themselves in the suit within stipulated time, the appeal would abate for the legal representative of the deceased litigant. As for the question of the status of the other litigant(s) in a situation where appeal has abated for the deceased litigant, the Supreme Court took the view that in such a situation it would have to be seen that if the appeal is allowed to be continued with the surviving litigant, it must be ensured that the final decree is not unfair to the deceased litigant. Therefore each issue should be considered on case to case basis and that in the current matter the right which was set up by the appellant alongwith his late brother was joint. It was not a case where their claims were distinct claims. If the High Court were to allow the appeal of one of the brothers, it would be contradictory to the decree of the trial court as against the deceased brother, which had attained finality. Thus, there would be two decrees, one upholding the adoption and another invalidating the adoption, in the same proceeding. That is impermissible in law.

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