Holding

The appeal does not abate; the appellant may continue after substitution, and the High Court erred in dismissing it as abated.

Summary

The appellant Mahendra Kumar filed a suit for partition of property with his mother, which resulted in a preliminary decree granting equal shares to mother and son, and a final decree after a document alleged the son had relinquished his share, giving equal shares to the mother and respondent No.1. Both parties appealed; during the appeals the mother died and substitution applications were allowed. Respondent No.2 claimed to be the legal representative of the deceased under a will and sought dismissal of the appeals as abated for not being joined. The High Court dismissed the appellant's appeal as abated but allowed the other appeal and impleaded respondent No.2. The Supreme Court held that the appellant, as the legal heir, could be substituted as the representative and that the appeal does not abate merely because a claimant under a will has not obtained probate; the proper procedure under Order XXII Rule 5 CPC must be followed. Consequently, the High Court's abatement order was set aside and the appeal was allowed.

Issues considered

Whether an appeal abates when a person claiming to be the legal representative of a deceased under a will is not joined as a party.
Whether substitution of the legal heir under Order XXII Rule 2 CPC suffices to continue the appeal.
Whether Order XXII Rule 5 CPC mandates a specific procedure before declaring an appeal abated in such circumstances.

Legislation cited

Code of Civil Procedure, 1908s. Order XXII Rule 2, s. Order XXII Rule 5, s. Section 151

Subjects

partition suitlegal representativeabated appealsubstitutionOrder XXIICPCwillprobateappeal procedure

Judgment

MAHENDRA KUMAR A
v.
LALCHAND AND ANR.

FEBRUARY 6, 2001

[M.B. SHAH AND S.N. PHUKAN, JJ.] B

Code of Civil Procedure, 1908:

Order XXJJ Rule 5-Motherfiled suit/or partition ofproperties claiming
to be joint family properties between herself, her son and one l-Preliminary C
decree passed holding that the mother and son would get equal share-
Subsequently, a document was introduced alleging that the son had
relinquished his share and, therefore, final decree passed holding that the
mother and l were having an equal share in the said properties-Appeals
filed by son and l-Mother died during pendency of the appeals-Application D
for substitution in both the appeals allowed-J filed an application before
High Court contending that he was the legal representative (LR) under a
Will executed by the mother and as he had not been brought on record as
LR of deceased in pending appeals, the same be dismissed as abated-J's
-1 application in the son's appeal was allowed and the appeal was dismissed
as abated-In L's appeal the application for dismissal of appeal as abated E
was dismissed and J was permitted to be impleaded-Validity of-Held:
Undisputedly, the son is the legal heir of his mother-Therefore, the son is
entitled to be substituted as legal heir of the deceased-J has not obtained
probate of the Will and, therefore, there is no question of abatement of
appeal-Hence, High Court erred in holding that the appeal filed by the son F
abated.

The appellant's mother filed a suit for partition of properties claiming
to be joint family properties between herself, the appellant and respondent
No. I. A preliminary decree was passed holding that the appellant and his
mother would get equal share. Pending the passing of final decree a document G
was introduced alleging that the appellant had relinquished his share in the
property in favour of his mother. The trial court hdd that the appellant had
relinquished his share and therefore, a final decree was passed holding that
his mother and respondent No. t were having equal share in the said
properties.
877 H
878 SUPREME COURT REPORTS [2001) I S.C.R.

A The appellant and respondent No. 1 filed appeals against the aforesaid
judgment. During the pend ency of the appeals the appellant's mother died.
Applications for substitution filed in both the appeals under Order XXII Rule
2 of the Code of Civil Procedure, 1908 were allowed.

Thereafter, respondent No. 2. filed an application before the High Court
B contending that he was the Legal Representative (LR) of the deceased mother
under a Will executed by her and as he was not brought on record as the LR
of the deceased in the pending appeals, the same be dismissed as abated. The ·""' -
High Court allowed the said application and dismissed the appellant's appeal
as abated. However, in respondent No. I's appeal the application for dismissal
C of appeal as abated was dismissed and respondent No. 2. was permitted to be
impleaded. For setting aside the said abatement order the appellant preferred
an application before the High Court, which was rejected. Hence this appeal.

Allowing the appeal, the Court

D HELD : I. The order passed by the High Court holding that the appeal
filed by the appellant stands abated is contrary to its own order passed in the
appeal filed by respondent No. I. It is also contrary to Order XXII Rule 5 of
the Code of Civil Procedure, 1908. [880-Cj

2. Undisputedly, the appellant is a legal heir of his mother. Therefore, .l. -
E his right to sue survives ~rnd the appellant was entitled to be substituted as
the legal representative of his deceased mother. Respondent No. 2. has not
obtained probate. Hence, considering the procedure prescribed under Order
XXII Rule 5 CPC, there is no question of abatement of appeal. It was for the
respondent No. 2. who claims that the deceased has executed a Will in his
favour to file proper application to be joined as party respondent by contending
F that he is the legal representative as the estate has devolved upon him on the
basis of the Will. On such application being filed, the court was required to
determine it under Order XXII Rule 5. This legal provision was completely
overlooked by the High Court and on this ground the impugned judgment and
order is not sustainable. [880-F-H; 881-AJ

G CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1051 of2001.

From the Judgment and Order dated I 0.2.2000 of the Madhya Pradesh
High Court in M.C.C. No. 283of1998

Nikhil Sakhardande, Ms. Meenakshi Sakhardande, Pramit Saxena and
H S. V. Deshpande for the Appellant.
MAHENDRA KUMAR v. LALCHAND AND ANR. jS.N. PHU KAN . .I.] 879

In-person for Respondent No. 2. A
The Judgment of the Court was delivered by

PHU KAN, J. Leave granted.

The appellant Mahendra Kumar filed M.C.C. No. 283 of 1998 for setting B
aside the abatement order passed in First Appeal No. 69 of 1987. The appeal
was filed challenging the judgment and decree dated 6th June, 1987 and 14th
July, 1987 passed by the 5th Additional District Judge, Indore in Civil Suit
No.2 of 1972. During the pendency of the said appeal appellant's mother
Rambh:ilia·i ·died. That appeal was dismissed as abated on the ground that
legatee under the Will ex~cuted by Rambhabai was not joined as party C
respondent.

The Suit was filed by Rambhabai for partition of the properties claiming
to be joint family properties between herself, the appellant and respondent
Lalchand S/o Dhanna Lal Mahajan. A preliminary decree was passed in the D
said suit holding that appellant and his mother will get equal share i.e. 50: 50
percent, in the property left by Dhanna Lal father of Lalchand. Pending
passing of final decree a document dated 7th July, 1961 was introduced by
alleging that her son (Appellant) has relinquished all his rights and share in
the property in her favour. That said document was denied by the appellant
and the evidence was recorded by the trial court. The trial court held that E
appellant has relinquished his share by the said document and, therefore, final
decree was passed holding that Rambhabai and Respondent No. I, Lalchand
were having equal share in the said properties.

-'r Against the said judgment and decree, appellant preferred First Appeal
No. 69 of l 987 and Lalchand preferred First Appeal No. 80 of 1987. In both F
these appeals deceased Rambhabai was respondent No. I. She died on
9.11.1995. The appellant filed an application for substitution under Order XXll
Rule 2 read with Section 151 C.P.C. contending that he was the son of
deceased Rambhabai and was the sole legal representative and the name of
respondent No. I, Rambhabai, be deleted from the cause list. That application G
was allowed by order dated I st February, 1996. To that effect Lalchand also
filed an application in the First Appeal which was also allowed by order dated
17th January, 1996.

Thereafter, respondent No.2, Shrikrishna S/o Jitendra Kumar Chaurasia,
filed an application in the High' Court that he is L.R. of deceased Rambhabai H
880 SUPREME COURT REPORTS [200 I) I S.C.R.

A as she has executed Will on 20th August, 1980 in his favour and as he has
not been brought on record as legal representative of deceased in pending
appeals, the same be dismissed as abated. On 13th March, 1997 both the
appeals were placed before the court and court allowed the application and
dismissed the appeal filed by the appellant as abated. However, in First
Appeal No. 80 of 1987 the application for dismissal of appeal as abated was
B dismissed and applicant was permitted to be impleaded as respondent No. 2.
For setting aside the said abatement order the appellant preferred the aforesaid
application which was rejected, hence this appeal.

In our view, the order passed by the High Court holding that appeal
C filed by the appellant stands abated is contrary to its own order passed in
appeal filed by Lalchand. It is also contrary to order XXII Rule 5, which is
as under: -

"5. Determination of question as to legal representative - Where a
question arises as to whether any person is or is not the legal
D representative of a deceased plaintiff or a deceased defendant, such
question shall be determined by the Court :

Provided that where such question arises before an Appellate Court,
that Court may, before determining the question, direct any subordinate l _
Court to try the question and to return the records together with
E evidence, if any, recorded at such trial, its findings and reasons
therefor, and the Appellate Court may take the same into consideration
in determining the question.

Undisputedly, the appellant is a legal heir of his mother Rambhabai.
Therefore, his right to sue survives and appellant was entitled to be substituted
F as legal representative of deceased Rambhabai. However, the question would
be, whether Rambhabai has executed Will dated 20th August, 1980, in favour
of Respondent No. 2, Shrikrishna, and if so, by not joining him whether the
appeal would abate? Respondent No. 2 has not obtained probate, hence
considering the procedure prescribed under the above-qooted Order XXII
G Rule 5, there is no question of abatement of appeal. It was for the respondent
No. 2 Shrikrishna Chourasia, who claims that Will has been executed by the
deceased Rambhabai in his favour to file proper application to be joined as
party respondent by contending that he is legal representative as the estate
has devolved upon him on the basis of the Will. On such application being
filed, the Court was required to determine it under Order XXII Rule 5. This
H legal provision was completely overlooked by the High Court and on this
MAHENDRA KUMAR v. LALCHAND AND ANR. [S.N. PHUKAN, J.] 881
ground the impugned judgment and order is not sustainable. A
Further, while dismissing the appeal filed by the present appellant by
the impugned judgment, High Court did not recall the Order already passed
for deletion of name of late Rambhabai. Having formed the opinion that the
appeal could proceed in the absence of late Rambhabai, High Court erred in
law in dismissing the appeal filed by the present appellant on the ground that B
appeal has abated.

·Learned :ounsel for the appellant has fairly stated that the appellant
would make an application before the court below for impleadment of the
present respondent no.2 as party and we direct him to do so.
c
For the reasons stated above, we hold that the High Court erred in law
in dismissing the appeal filed by the present appellant on the ground of
abatement without following the procedure laid down under Order XXll CPC.

In the result, the appeal is allowed and the impugned order is set aside.
Parties to bear their own costs. D
V.S.S. Appeal allowed.

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