J&K and Ladakh High Court Holds Failure to Substitute Legal Heirs of Deceased Appellant Results in Abatement of Entire Appeal
Facts
The appellants filed two Regular Second Appeals challenging concurrent judgments of the Trial Court and the First Appellate Court concerning disputes over ancestral property situated at Hassipora, Chadoora. The original suits sought declarations of ownership, cancellation of a deed of confirmation, and consequential injunctions relating to various parcels of ancestral land. During the trial, the parties entered into a compromise agreeing to appointment of Commissioners to inspect, measure and determine their respective entitlements in the entire ancestral estate, and further agreed that the Commissioners’ report would be binding.
The Trial Court accepted the Commissioners’ reports and passed a common decree determining the shares of all parties in the ancestral property. The First Appellate Court dismissed both appeals. During the pendency of the second appeals, Appellant No.2 died. Though applications for substitution of his legal representatives were filed, they were ultimately dismissed. The surviving appellant sought to prosecute the appeals alone, giving rise to the principal question whether the appeals had abated entirely.
Issues
- Whether failure to substitute the legal representatives of a deceased appellant resulted in abatement of the entire appeal.
- Whether the decree passed by the courts below was joint and inseverable or joint and severable.
- Whether the surviving appellant could continue the appeals alone.
- Whether Order XLI Rule 4 CPC permitted continuation of the appeals despite abatement under Order XXII CPC.
Appellants’ Arguments
The surviving appellant argued that Order XLI Rule 4 CPC enabled one of several plaintiffs to maintain an appeal on grounds common to all and empowered the appellate court to reverse the decree in favour of all interested parties.
It was further contended that the estate of the deceased appellant was sufficiently represented by the surviving appellant, who happened to be his brother. Reliance was placed upon the Supreme Court’s decision in Shivshankara v. H.P. Vedavyasa Char (2023) to contend that the appeal should not abate where the deceased’s estate continued to be adequately represented.
Respondents’ Arguments
The respondents contended that since the legal representatives of the deceased appellant had not been validly substituted within time, the appeal had abated against him.
They further argued that the decree under challenge determined the shares of all parties in the ancestral property through a common compromise and Commissioners’ report, making it a joint and inseverable decree. Therefore, permitting the surviving appellant alone to continue the appeals would result in contradictory and irreconcilable decrees.
Analysis of the Law
The Court extensively analysed the provisions of Order XXII Rules 1, 2, 3 and 11 CPC, dealing with survival of the right to sue and abatement upon failure to substitute legal representatives.
The Court explained that while Order XLI Rule 4 CPC permits one among several persons to institute an appeal on grounds common to all, that provision operates only at the stage of filing an appeal. Once an appeal has been filed jointly and one appellant dies during its pendency, the consequences are governed exclusively by Order XXII CPC.
The Court reiterated that the crucial enquiry is whether the decree under challenge is joint and inseverable or merely a combination of independent decrees. If allowing the surviving appeal would create inconsistent or contradictory decrees, the entire appeal necessarily abates.
Precedent Analysis
The Court relied upon several Supreme Court decisions, including:
- State of Punjab v. Nathu Ram (AIR 1962 SC 89)—laying down the tests for determining whether an appeal abates in entirety, particularly where conflicting decrees may result.
- Ram Sarup v. Munshi (AIR 1963 SC 553)—holding that where the decree is joint, partial abatement results in abatement of the whole appeal.
- Sardar Amarjit Singh Kalra v. Pramod Gupta (2003) 3 SCC 272—explaining the distinction between joint and inseverable decrees and joint but severable decrees, and emphasising that courts must examine whether inconsistent decrees would follow.
- Suresh Chandra (Deceased) through LRs v. Parasram (2025 SCC OnLine SC 1472)—summarising the governing principles regarding abatement, interplay between Order XXII and Order XLI Rule 4 CPC, and clarifying that once a joint appeal has been instituted, Order XLI Rule 4 does not override the consequences of Order XXII.
The Court distinguished Shivshankara v. H.P. Vedavyasa Char (2023), observing that in that case the deceased’s estate was fully represented by the surviving parties, whereas in the present case the deceased appellant’s daughters alone represented his estate.
Court’s Reasoning
The High Court observed that the Trial Court’s decree was founded upon a compromise and Commissioners’ reports determining the shares of every party in the entire ancestral estate. Such a decree was plainly joint and inseverable, since modification in favour of one appellant would necessarily reopen the entire determination of shares.
The Court held that if the surviving appellant alone were permitted to continue the appeals, the decree would become final against the legal representatives of the deceased appellant while simultaneously being reopened against the remaining parties, resulting in two mutually inconsistent decrees governing the same ancestral property.
Rejecting the reliance on Order XLI Rule 4 CPC, the Court held that once the appeal had already been filed jointly, the death of one appellant attracted Order XXII CPC, requiring substitution of legal representatives. Since the deceased appellant’s daughters were the true representatives of his estate and their substitution applications had already been dismissed, the surviving brother could not be treated as representing the deceased’s estate. Consequently, the entire appeals stood abated.
Conclusion
The High Court held that the decree determining the parties’ shares in the ancestral property was joint and inseverable.
Since the legal representatives of the deceased appellant were not brought on record and the decree had attained finality against them, permitting the surviving appellant alone to continue the appeals would result in contradictory decrees. Accordingly, both Regular Second Appeals were dismissed as having abated in their entirety.
Case Details
Case: Gulam Ahmad Raina & Anr. v. Mst. Hameeda Akhtar & Ors.
Court: High Court of Jammu & Kashmir and Ladakh at Srinagar
Case Number: RSA No. 12 of 2021 c/w RSA No. 11 of 2021
Judge: Hon’ble Mr. Justice Sanjay Dhar
Date: 24 July 2026
Result: Appeals Dismissed as Abated. The High Court held that the decree under challenge was joint and inseverable, and failure to substitute the legal representatives of the deceased appellant resulted in abatement of the entire appeals.
