# THE STATE OF PUNJAB v. NATHU RAM

- **Citation:** [1962] 2 S.C.R. 636
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeals Nos. 635 to 641 of 1957
- **Bench:** K. Subba Rao, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-punjab-v-nathu-ram-2280
- **Pages:** 9

## Headnote

Abatement of appeal-Joint decree in favour of respondentsDeath of one of the respondents in appeal-Failure to bring legal
representative on record-Whether the appeal abates as a whoteTest-Code of Civil Procedure, I908 (V of I9D8), 0. 22, r. 4.
The Punjab Government acquired certain parcels of land
belonging to two brothers L and N who refused to accept the
compensation offered to them and applied to the Government of
Punjab under r. 6 of the Punjab Land Acquisition (Defence of
India) Rules, 1943, to refer to arbitration their joint claim based
on the allegation that the land belonged to them jointly. The
State Government referred the matter to an arbitrator as required under r. IO who passed an award in favour of both Land N
ordering inter alia payment of an amount higher than what was
offered to them by the Government. The Government appealed
against the said award to the High Court. During the pendency
of the appeal before the High Court respondent L died and as no
application for bringing on record his legal representative had
been made within the time limit, the High Court dismissed the
appeal holding that the appeal had abated against Land that
its effect was that the appeai against N also abated.
Held, that there can be no question of abatement of appeal
against the co-respondents oJ the deceased respondent as Order
22 Rule 4 of the Code of Civil Procedure does not provide for
the same but in certain circumstances the appeal cannot proceed
against them and such a result depends on the nature of the
relief sought in the appeal.
If the Court can deal with the matter in controversy so far
as regards the rights and interest of the appellant and the respondents other than the deceased respondent, it has to proceed
with the appeal and decide it; otherwise it will have to refuse
to proceed further with the appeal and therefore dismiss
it. Ordinarily, the consideration which will weigh with the
court in deciding upon the question whether the entire appeal
had abated or not will be whether the appeal between the
appellants and the respondents other than the deceased respondent can be said to be properly constituted or can be said to
have all the necessary parties for the decision of the controversy
before the court and the tests to determine this have been described thus: (a) when the success of the appeal may lead to
the court's 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 court's passing a decree
which will be contradictory to the decree which had become
2 S.C.R.
SUPREME COURT REPORTS
637
final with respect to the same subject matter between the appellant and the deceasefl respondent; (b) when the appellant could
not have brought the action for the necessary relief against those
respondents alone who are still before the court and (c) when
the decree against the surviving respondents, if the appeal
succeeds, be incffecti ve that is to say it could not be successfully
executed.
The abatement of an appeal against the deceased respondent means not only that the decree between the appellant and
the deceased respondent has become final but also as a necessary
corollary that the appellate court cannot in any way modify
that decree directly or indirectly.
When the decree in favour of the respondents is joint and
indivisible, the appeal against the respondents other than the
deceased respondent cannot be proceeded with if the appeal
against the deceased respondent has abated.
In the present case the appeal against N alone was not properly constituted when the appeal against L had abated and the
State appeal against N alone could not proceed.

## Text

May I.
636
SUPREME COURT REPORTS
(1962)
THE STATE OF PUNJAB
v.
NATHU RAM
(K. SUBBA RAO and RAGHUBAR DAYAL, JJ.)
Abatement of appeal-Joint decree in favour of respondentsDeath of one of the respondents in appeal-Failure to bring legal
representative on record-Whether the appeal abates as a whoteTest-Code of Civil Procedure, I908 (V of I9D8), 0. 22, r. 4.
The Punjab Government acquired certain parcels of land
belonging to two brothers L and N who refused to accept the
compensation offered to them and applied to the Government of
Punjab under r. 6 of the Punjab Land Acquisition (Defence of
India) Rules, 1943, to refer to arbitration their joint claim based
on the allegation that the land belonged to them jointly. The
State Government referred the matter to an arbitrator as required under r. IO who passed an award in favour of both Land N
ordering inter alia payment of an amount higher than what was
offered to them by the Government. The Government appealed
against the said award to the High Court. During the pendency
of the appeal before the High Court respondent L died and as no
application for bringing on record his legal representative had
been made within the time limit, the High Court dismissed the
appeal holding that the appeal had abated against Land that
its effect was that the appeai against N also abated.
Held, that there can be no question of abatement of appeal
against the co-respondents oJ the deceased respondent as Order
22 Rule 4 of the Code of Civil Procedure does not provide for
the same but in certain circumstances the appeal cannot proceed
against them and such a result depends on the nature of the
relief sought in the appeal.
If the Court can deal with the matter in controversy so far
as regards the rights and interest of the appellant and the respondents other than the deceased respondent, it has to proceed
with the appeal and decide it; otherwise it will have to refuse
to proceed further with the appeal and therefore dismiss
it. Ordinarily, the consideration which will weigh with the
court in deciding upon the question whether the entire appeal
had abated or not will be whether the appeal between the
appellants and the respondents other than the deceased respondent can be said to be properly constituted or can be said to
have all the necessary parties for the decision of the controversy
before the court and the tests to determine this have been described thus: (a) when the success of the appeal may lead to
the court's 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 court's passing a decree
which will be contradictory to the decree which had become
2 S.C.R.
SUPREME COURT REPORTS
637
final with respect to the same subject matter between the appellant and the deceasefl respondent; (b) when the appellant could
not have brought the action for the necessary relief against those
respondents alone who are still before the court and (c) when
the decree against the surviving respondents, if the appeal
succeeds, be incffecti ve that is to say it could not be successfully
executed.
The abatement of an appeal against the deceased respondent means not only that the decree between the appellant and
the deceased respondent has become final but also as a necessary
corollary that the appellate court cannot in any way modify
that decree directly or indirectly.
When the decree in favour of the respondents is joint and
indivisible, the appeal against the respondents other than the
deceased respondent cannot be proceeded with if the appeal
against the deceased respondent has abated.
In the present case the appeal against N alone was not properly constituted when the appeal against L had abated and the
State appeal against N alone could not proceed.
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.
635 to 641 of 1957.
Appeals from the judgment and decree dated
September 8, 1954, of the Punjab High Court in
Regular .E'irat Appeals Nos. 42, 43, 44, 45, 46, 47 and
48 of 1949.
R. Gopalakrishnan, T. M. Sen and R. H. Dhebar, for
the appellants.
Darya Dutt Chawla, for the respondents.
1961. May 1.
The Judgment of the Court was
delivered by
The State of
Jlunjab
v.
Nathu Rain
RAGHUBAR DAYAL, J.-Civil Appeal No. 635 of 1957
Raghubar
is an appeal, by certificate, and raises the question
Dayal J.
regarding the effect of the abatement of the appeal,
by the State of Punjab, against Labhu Ram, one of
the respondents, on the State appeal against Nathu
Ram, co-respondent.
Civil Appeals Nos. 636 to 641 of 1957 also raise the
same question between the same parties.
The facts leading to the appeal are that the Punjab
Government acquired on lease certain parcels of land
belonging to Labhu Ram and Nathu Ram, for different
military purposes, under the Defence of India Act,
81
The State of
Punjab
v.
Nathu Rani
Raghubar
Dayal j.
638
SUPREME COURT REPORTS
[1962]
1939 (XXXV of 1939). Labhu Ram and Nathu Ram,
brothers, refused to accept the compensation offered
to them by the Collector and applied to the Punjab
Government, through the Collector, under r. 6 of the
Punjab Land Acquisition (Defence of India) Rules,
1943, hereinafter· called the Rules, as amended by the
Notification of the Punjab Government No. 1444-HM44/19124, dated 10th March, 1944, and published in
the Punjab Gazette, Part I, dated 17th March, 1944
(Home Department). The State Government referred
the matter to an arbitrator as required under r. 10,
who, after enquiry, passed an award ordering the payment of an amount higher than what was offered by
the Collector and also ordered the payment of certain
amount on account of income-tax which would be paid
on the compensation received. The State Government
appealed against the award to the High Court of Punjab. During the pendency of the appeal, Labhu Ram,
one of the respondents, died. The High Court, holding
that the appeal abated against Labhu Ram and that
its effect was that the appeal against Nathu Ram also
abated, dismissed the appeal. It also dismissed the
cross-objections. The State Government applied for
a certificate of fitness of the case for appeal to this
Court and the High Court granted it, as questions of
great private and public importance were involved.
It is not disputed that in view of 0. XXII, r. 4, Civil
Procedure Code, hereinafter called the Code, the
appeal abated against Labhu Ram, deceased, when no
application for bringing on record his legal representatives had been made within the time limited by
law. The Code does not provide for the abatement
of the appeal against the other respondents. Courts
have held that in certain circumstances, the appeals
against the co-respondents would also abate as a.
result of the abatement of the appeal against the
deceased respondent. They have not been always
agreed with respect to the result of the particular circumstances of a case .and there has been, consequently,
divergence of opinion in the application of the principle. It will serve no useful purpose to consider the
cases. Suffice it to say that when 0. XXII, r. 4 does
2 s.c.R. SUPREME COURT REPOH.TS
639
not provide for the abatement of the appeals against
the co-respondents of the deceased rc~spondent, there
can be no question of abatement of the appeals
against them. To say that the appeals against them
abated in certain circumstances, is not a correct statement. Of course, the appeals against them cannot
proceed in certain circumstances and have therefore
to be dismissed. Such a result depends on the nature
of the relief sought in the appeal.
The same conclusion is to be drawn from the provisions of O. I, r. 9, of the Code which provides that no
suit shall be defeated by reason of the misjoiner or
non-joiner of parties and the Court may, in every suit,
deal with the matter in controversy so far as regards
the rights and interests of the parties actually before
it. It follows, therefore, that if the Court can deal
with the matter in controversy so far as regards the
rights and interests of the appellant and the respondents other than the deceased respondent, it has to
proceed with the appeal and decide it. It is only when
it is not possible for the Court to deal with such
matters, that it will have to refuse to proceed further
with the appeal and therefore dismiss it.
The question whether a Court can deal with such
matters or not, will depend on the facts of each case
and therefore no exhaustive statement can be made
about the circumstances when this is 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 be said to be properly constituted or can be said to have all the necessary parties
for the decision of the controversy before the Court.
The test to determine this has been described in
diverse forms. 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 w hicl;! will be contradictory
to the decree which had become fina.l with respect to
Th, State of
Punjab
v.
Nathu Ram
Raghubar
Dayal j.
I96r
The State of
Punjab
v
Nathu Ram
Raghubar
Dayal ].
640
SUPREME COURT REPORTS
[Ia62]
the same subject matter betweeen the appellant and
the deceased respondent; (b) when the appellant could
not have brought the action for the necessary relief
against those respondents alone who are still before
the Court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed.
There has been no divergence between the Courts
about the Court's proceeding with the appeal between
the respondents other than the deceased respondent,
when the decree in appeal was not a joint decree in
favour of all the respondents. The abatement of the
appeal against the deceased respondent, in such a case,
would make the decree in his favour alone final, and
this can, in no circumstances, have a repercussion,
on the decision of the controversy between the appellant and the other decree-holders or on the execution
of the ultimate decree between them.
The difficulty arises always when there is a joint
decree. Here again, the consensus of opinion is that
if the decree is joint and indivisible, the appeal against
the other respondents also will not be proceeded with
and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent.
Different views exist in the case of joint decrees in
favour of respondents whose rights in the subject
matter of the decree are specified. One view is that
in such cases, the abatement of the appeal against the
deceased respondent will have the result of making
the decree affecting his specific interest to be final and
that the decree against the other respondents can be
suitably dealt with by the appellate Court. We do
not consider this view correct. The specification of
shares or of interest of the deceased respondent do,es
not affect the nature of the decree and the capacity of
the joint decree-holder to execute the entire decree or
to resist the attempt of the other party to interfere
with the joint right decreed in his favour. The abatement of an appeal means not only that the decree
between the appellant and the deceased responde11t
has become final, but also, as a necessary corollary,
2 S.C.R. SUPREME COURT REPOiiTS
641
that the appellate Court cannot, in any way, modify
that decree directly or indirectly.
The reason is
plain. It is that in the absence of the legal representatives of the deceased respondents, the appellate
Court cannot determine anything between the appellant and the legal representatives which may affect
the rights of the legal representatives under the decree.
It is immaterial that the modification which the Court
will do is one to which exception can or cannot be
taken.
It is therefore necessary to determine, on the facts
of this case, whether the State appeal could proceed
against Nathu Ram. The award of the arbitrator in
each of these cases was a. joint one, in favour of both
the respondents La.bhu Ram and Nathu Ram. To
illustrate the form of the award, we may quote the
award for the year 1945-46 in the proceedings leading
to Civil Appeal No. 635 of 1957. It is:
"On the basis of the report of S. La.I Singh, Naib
Tehsildar (Exhibit P. W. 9/1) and Sheikh Aziz Din,
Tehsildar, Exhibit P. W. 9/2, the applicants are entitled to a sum of Rs. 4,140 on account of rent, plus
Rs. 3,872-8-0 on account of Income-tax etc., due to
the inclusion of Rs. 6,193-8-0 in their total income,
plus such sum as the petitioners have to piiy to the
Income-tax Department on account of the inclusion
of Rs. 4,140 in their income as awarded by this
award."
The result of the abatement of the appeal against
La.bhu Ram is therefore that his legal representatives
a.re entitled to get compensation on the basis of this
a.ward, even if they a.re to be paid separately on
calculating their rightful share in the land acquired,
for which this compensation is decreed. Such calculation is foreign to the appeal between the State of
Punjab and Na.thu Ram. The decree in the appeal
will have to determine not what Nathu Ra.m's ohare
in this compensation is, but what is the correct
a.mount of compensation with respect to the land
acquired for which this compensation has been
a.warded by the arbitrator. The subject matter for
which the compensation is to be calculated is one and
The State of
Punjab
v
Nathu- Ram
Raghubar
Dayal].
The State of
I'unjab
v.
Nalhu Rani
Raghubar
Dayal J.
642
SUPREME COURT REPORTS
[1962]
the same. There cannot be different assessments of
the amounts of compensation for the same parcel of
land. The appeal before the High Court was nn
appeal against a decree jointly in favour of Labhu
Ram and Nathu Ram. The appeal against Nathu
Ram alone cannot be held to be properly constituted
when the appeal against Labhu Ram ba<l abated.
To get rid of the joint decree, it was essenti;:1l
for the appellant, the State of Punjab, to implead
both the joint-decree holders in the appeal. In the
absence of one joint-decree holder, the appeal is not
properly framed. It follows the that State appe1~l
against Nathu Ram alone cannot proceed.
It is however contended for the State that according to the entries in the village records, Labhu Ram
and Nathu !tam had equal shares in the land acquired and that therefore the appeal against Nathu !tarn
alone can deal with half the amount of the award.
We do not agree. The mere record of specific shares
in the revenue records is no guarantee of their correctness. The appellate Court will have to determine the
share of Nathu !tam and necessarily the share o.f
Labhu Ram in the absence of his legal representative11.
This is not permissible in law. Further, the entire case
of Labhu Ram and Nathu Ram, in their application
to the Government for the appointment of an arbitrator, was that the land jointly belonged to them and
had been acquired for military purposes, that a certain amount had been paid to them as compensation,
that they received that amount under protest and
that they were entitled to a larger amount mentioned in tho application and also for the incometax they would have to pay on account of tho
compensation received being added to their income.
Their claim was a joint claim based on the allega·
tion that the land belonged to them jointly. Tho
award and the joint decree are on this basis and tho
appellate Court cannot decide on the basis of tho
separate shares.
The State objected before the arbitrator, and urgeH
before us, that under the rules, the joint applicatfon
of Labhu Ram a.nd Nathu !tam should have been
2 S.C.R. SUPREME COURT REPORTS
643
treated as separate applications with respect to the
correctness of the compensation payable to ea.ch of
them respectively and that the arbitrator should have
made separate awards with respect to such separate
claims of Labhu Ram and Nathu Ram. The necessary corollary of suoh a contention for the State is
that the abatement of the appeal against Labhu Ram
will not.make infructuous the appeal against NathuRam.
The respondent urges that the Punjab Land Acquisition (Defence of India) Rules, do not contemplate
separate applications by the persons interested in the
compensation on account of the acquisition of a particular parcel of land.
The arbitrator did not agree to deal with the claims
of La.bhu Ram and Nathu Ram separately. He, however, did not decide the question on the basis of the
land belonging jointly to the two brothers as members of the joint Hindu family. He however held
that the expression 'a person interested' in r. 3, included all persons claiming an interest in the compensation to be paid on account of the acquisition of the
land and that r. 18 permitted the joinder of applications for joint enquiry when each case rested on the
same and similar basis and each of the applications
included land included in a. larger p11ort of land acquired at one time. He also took into consideration that
the separation of the applications of Labhu Ram and
Nathu Ram would involve various difficulties in
matters of income-tax. He therefore used his discretion and ordered the a pplica.tion to be proceeded
with jointly.
In view of our opinion on the main point, we do
not consider it necessary to interpret the rules and
decide whether the joint application was maintainable or not.
The fact remains that Labhu Ram and
Nathu Ram ma.de a joint claim and got a joint decree
against the State for compensation. The frame of
the appeal is to be with reference to the nature of the
decree challenged.
We therefore see no force in this appeal and dismiss it with costs.· This order will govern the other
The Slate of
Punjab
v.
Nathu Ram
Raghubar
Dayal J.
The State of
Pttnjab
v.
Nathu Rani
Raghubar
Dayal ].
May 2.
644
SUPREME COURT REPORTS
[ 1902]
connected appeals, viz., Civil Appeals Nos. 636 to
641 of 1957.
Appeal di81nissed.
INSTALMENT SUPPLY (P.)LTD. AND
ANOTHER
v.
THE UNION OF INDIA AND OTHERS
(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR,
N. RAJAGoPALA AYYANGAR and
J. R. MUDHOLKAR, JJ.)
Sales Tax-Hire-purchase agreement-Transaction on such
agreemrnt, if liable to tax-Bengal Finance (Sales Tax) Act, 194r,
as extended to Delhi State, s. 2(g).
Section 2(g) of the Bengal Finance (Sales Tax} Act, i941, as
extended to Delhi State, provided as follows,-
" 'Sale' means any transfer of property in goods for cash or
deferred payment or other valuable consideration, including a
transfer of property in goods involved in the execution of a contract, but does not include a mortgage, hypothecation, charge er
pledge.
Explanation 1 .... A transfer of goods on hire-purchase or
other instalment system of payment shall, notwithstanding that
the seller retains a title to any goods as security for payment of
the price, be deemed to be a sale."
The hire-purchase agreement entered into by the petitioneic
company provided that after all the monthly instalments had
been paid, "'the hiring shall come to an encl and the vehicle
shall, at the option of the hirer, become his absolute property;
but until such payments as aforesaid have been made, the veJii ..
cle shall remain the property of the owners. The hirer shall'.
also have the option of purchasing the vehicle at any time dur ..
ing the currency of this agreement by paying in one lump sum
the balance of all the hire hereinbefore mentioned and any
other expenses incurred by the owners relating to the transaction." The question for determination was whether the agreement was a transaction of mere hiring or one of hire-purchase
within the meaning of Explanation 1 to s. 2(g) of the Act.