This civil second appeal addressed whether an appeal can proceed with a single surviving appellant when the co-appellant has passed away, their legal representatives have failed to come on record within the limitation period, and the underlying decree is joint and indivisible. The High Court of Jammu and Kashmir and Ladakh held that because the trial court’s judgment determined the shares of all parties in a composite ancestral property based on a collective compromise report, the decree is joint and inseverable. Consequently, the failure to bring the legal heirs of the deceased appellant on record caused the entire appeals to abate in their entirety, as permitting only the surviving appellant to continue would create contradictory and irreconcilable judicial outcomes.
- Background of Litigation:
- The appellants/plaintiffs filed original suits seeking declarations of ownership, possession, and cancellation of a confirmation deed concerning ancestral properties in Chadoora.
- During the trial, the parties entered into a compromise agreement to appoint commissioners for local inspection and measurement of the entire hereditary landed estate.
- Based on the commissioners’ reports, the trial court passed a common judgment on May 31, 2016, defining and settling the ownership shares of all contesting branches of the family.
- The first appellate court dismissed the subsequent appeals on May 19, 2021, prompting the filing of the present Civil Second Appeals.
- Abatement and Procedural Hurdles:
- During the pendency of the appeal proceedings, appellant No. 2 passed away.
- Applications filed by the legal representatives of deceased appellant No. 2 to set aside the abatement and substitute their names were dismissed by the Court on March 6, 2026, leaving appellant No. 1 attempting to pursue the appeals alone.
- The respondents raised preliminary objections, asserting that the appeals had abated as a whole.
- Legal Principles Analyzed by the Court:
- Order XXII of the CPC: Outlines that if an appellant dies and the legal representatives are not brought on record within the limitation period, the appeal abates as far as the deceased party is concerned.
- Joint and Inseverable Decrees: Citing Supreme Court precedents (such as Suresh Chandra v. Parasram and State of Punjab v. Nathu Ram), the Court reiterated that if a decree is joint and inseverable, the abatement regarding one party proves fatal to the entire proceeding. This prevents the anomaly of conflicting or mutually self-destructive decrees.
- Order XLI Rule 4 of the CPC: The appellants argued that one plaintiff can maintain an appeal for a common ground. The High Court clarified that Rule 4 applies at the institution stage of an appeal, whereas Order XXII governs subsequent events during pendency (such as death). Once an appeal is jointly filed, the death of a party triggers Order XXII, making Rule 4 inapplicable.
- Representation of Estate: The contention that appellant No. 1 (brother of deceased appellant No. 2) sufficiently represented the estate was rejected, as the deceased left behind daughters who were his direct legal heirs.
- Final Conclusion:
- Because the underlying decree inextricably intertwined the shares of the family members based on a collective settlement, allowing appellant No. 1 to proceed alone would reopen a final adjudication and risk conflicting decrees.
- The Court ruled that the appeals abated in their entirety and dismissed them accordingly.
J.O. (Web) 2026 J & K 20
Gulam Ahmad Raina & Anr. v. Mst. Hameeda Akhtar & Ors. (D.O.J. 24.07.2026)
J.O. (Web) 2026 J & K 20 click here to view full text of judgment
