Jiyubha Pathabhai and Others vs Halubha Muluji and Others

Shah, C.J.—The principal question involved in this second appeal is whether the suit giving rise to this appeal abates as a whole or in part The Respondent Plaintiffs are the Mulgirasias of Panchasar village and the Appellants are said to be the Peta Girasias of the Plaintiff, or a kind of inferior land holders. The Plaintiffs claimed Rs. 4667/- on account of the arrears of vero at the rate of Rs. 359/- per year which they alleged was due from the Defendants. In a former suit, being Civil Suit No. 35 of 1929/30, filed by the Plaintiff Mulgirasias in the Court of the Diwani Nyayadhish of Morvi their right to recover Rs. 359/ - from the Defendants as vero was established after a protracted litigation by a decree of the Huzur Court of the Morvi State in Civil Second appeal No. 20 of 1936-37 dated 27th August 1937. The vero for 13 years had fallen into arrears in the meantime and the present suit was brought to recover the said arrears. The suit was originally filed in the Court of the Nyayadhish of Morvi in December 1942, and the claim was resisted by the Defendants on various grounds. Defendants Nos. 3 to 10 died pending the suit, but their legal representatives were not brought on the record within limitation and the Nyayadhish of Morvi made an order dated 16-4-1944 that the suit had abated against the deceased Defendants.

After the formation of the Saurashtra State and the integration of the Morvi State in it this suit, which had still been pending, was transferred to the Court of the Assistant Judge, Morvi. The learned Judge rejected most of the contentions urged by the Defendants and on the question of limitation he held that the suit was governed by Article 120, Limitation Act, corresponding to Rule 105 of the Morvi State Limitation Rules, which prescribed 9 years for suits not specifically provided for elsewhere, and that the claim for 9 years was within limitation, the rest being time barred. However the learned Judge held that the suit abated as a whole and not against Defendants Nos. 3 and 10 only, and ha therefore dismissed the suit against all the Defendants ordering the parties to bear their own costs.

In appeal, the learned District Judge took the view that the Nyayadhish of Morvi had already decided that the suit abated against Defendants Nos. 3 and 10 and thereby impliedly decided that it did abate as a whole, that it was not competent to the Assistant Judge to reopen the question and to give a fresh finding on it and that if the Defendants were aggrieved by the original finding they ought to have appealed against it. On the merits too he held that the suit abated against Defendants Nos. 3 and 10 only and not as a whole. He accepted the finding of the Assistant Judge on the question of limitation and on other points, and in the result he passed a decree for Rs. 3231/ - less the amount of the shares of Defendants Nos. 3 and 10, the said amount being ordered to be determined in execution proceeding, against the person and property of the remaining Defendants. The said other remaining Defendants have preferred this second appeal.

Now as regards abatement, the learned District Judge is in the first place, in an error in holding that the Nyayadhish of Morvi had already decided that the suit abated as a whole and therefore the question of abatement could not have been inquired into by the Assistant Judge. The order Exhibit 27 of the Nyayadhish, to which the District Judge obviously refers, was made on the Plaintiffs'' application Exhibit 24 for bringing the legal representatives of deceased Defendants Nos. 3 and 10 on the record, and rejecting this application the Nyaydhish made an order dated 16-4-1944 that the suit abated against the said Defendants Nos. 3 and 10. Thereafter, the Court framed issues and issue No. 3 was whether as the suit had abated against the said Defendants whether it abated against the remaining Defendants. Therefore, the learned District Judge was not right in holding that this issue could not have been gone into by the Assistant Judge.

On the merits of the question, the interest of the Defendants in the land in respect of which the Plaintiffs claim the vero were joint and indivisible, and the interest of deceased Defendants Nos. 3 and 10 could not be separated from those of the remaining Defendants. The claim as made by Plaintiffs is against the body of the Defendants as a whole and the Defendants too did not set up separate or separable rights in the matter, nor did allege a separate liability. The right to the vero is not enforceable without all the Defendants being joined as co-Defendants, and the relief claimed in paragraph 3 of the plaint also is for a joint decree against all the Defendants. Therefore all the Defendants are necessary parties to the suit and the suit becomes incompetently constituted in the absence of the legal representatives of the Defendants who had died pending the suit. Whether the abatement will take place as a whole or in part will depend on whether the suit could have been instituted and prosecuted without the deceased Defendants, or whether separate suits could have been brought against the Defendants severally for recovering the amount of the vero. That could not have been done on the Plaintiffs'' own case. Both in the former litigation as also in the present suit the claim made is a joint claim against all the Defendants. That claim is not divisible; and this difficulty has been felt by the learned District Judge himself, but he has tried to circumvent it by awarding a sum less the amount of the shares of the deceased Defendants Nos. 3 and 10, which he left for determination in the execution proceedings. The learned Judge''s approach to the question is not correct and his analogy of coparceners in a joint Hindu family also is inept. The liability of the Defendants, on the case made by the Plaintiffs themselves, is joint and indivisible and the suit is therefore li able to abate as a whole and not only against the deceased Defendants. We therefore accept the finding of the learned Assistant Judge on this point and hold that the suit is liable to be, dismissed as against all the Defendants.

In the above view the question of imitation is of academic interest, but since Mr. Baxi has raised the point, we propose to deal with it. He has urged that Article 115, Limitation Act will apply inasmuch as the suit is to recover compensation for breach of a contract which according to him was an implied one. The period of limitation, under the rule of the Morvi State Limitation Rules, corresponding to Article 115, is 5 years and Mr. Baxi has, therefore, urged that the claim for the remaining four years is barred by limitation. The contention is not correct because the claim does not really rest on a contract or agreement, and in the previous litigation the Huzur Court of the Morvi State decreed the claim on the footing that the Plaintiff were entitled to recover the vero according to the old practice dating back to 60 or 70 years.

No plea of a contract was there made in the trial Court and the suggestion of an agreement made in the course of the arguments before the Huzur Court of Morvi was negatived. The basis of that decision is binding on the parties. The Defendants themselves do not plead a contract or agreement, and there is therefore no scope for the contention urged by Mr. Baxi that Article 115 is applicable. The case has not been provided for elsewhere, and the proper article to apply is Article 120, Limitation Act, and the lower Court''s finding to that effect is correct.

In the result therefore the suit abates as a whole and must be dismissed. We therefore allow the appeal, set aside the decree of the District Judge and dismiss the suit against all the Defendants. The Respondents will pay the Appellant''s costs of this appeal and will bear their own. Parties to bear their own costs in the lower appellate Court and in the trial Court.

Baxi, J.

I agree.