Case Note & Summary
The dispute arose from a partition suit filed by Rambhabai, who sought to partition properties claimed to be joint family properties. The appellant, Mahendra Kumar, was her son and a party to the suit. After Rambhabai's death, the appeal against the trial court's decree was dismissed as abated due to the non-joinder of Shrikrishna, who claimed to be a legal heir under a Will executed by Rambhabai. The appellant contended that he was the sole legal representative and sought to substitute himself in the appeal. The High Court dismissed the appeal, leading to the present appeal before the Supreme Court. The Supreme Court found that the High Court had erred in dismissing the appeal without determining the legal representation issue as required by Order XXII Rule 5 of the Code of Civil Procedure, 1908. The Court noted that the appellant's right to sue survived his mother's death and that the question of Shrikrishna's claim to the estate needed to be properly adjudicated. The Supreme Court allowed the appeal, set aside the High Court's order, and directed the appellant to apply for Shrikrishna's impleadment as a party. The parties were directed to bear their own costs.
Headnote
A) Civil Procedure - Legal Representation - Right to Sue - Code of Civil Procedure, 1908, Order XXII - The appellant, being the legal heir of the deceased, was entitled to be substituted as a legal representative. The High Court's dismissal of the appeal on the grounds of abatement was erroneous as it did not follow the procedure under Order XXII CPC regarding the determination of legal representatives (Paras 1-3).
Issue of Consideration
Whether the appeal abated due to the non-joinder of a party claiming to be a legal representative under a Will.
Final Decision
The Supreme Court allowed the appeal, set aside the High Court's order dismissing the appeal as abated, and directed the appellant to apply for the impleadment of the respondent claiming rights under the Will.
Law Points
- Legal representation
- Abatement of appeal
- Will execution
- Legal heir rights
- Order XXII CPC
