Case Note & Summary
The case arises from a partition suit filed by the respondent-plaintiff (Smt. Dhanuben Rathod) against her brothers and sisters, seeking partition and separate possession of the suit property. The suit was decreed by the Civil Judge, Dadra and Nagar Haveli, Silvassa on 30th August 2006. The defendants appealed this decree in Regular Civil Appeal No. 4/2006 before the District Judge, Dadra & Nagar Haveli at Silvassa. During the pendency of the appeal, one of the appellants, Savitaben Vithalbhai Chauhan (original defendant no.3), died on 20th February 2011. However, her legal representatives were not brought on record, and this fact was not brought to the notice of the learned District Judge. The appeal was heard and partly allowed by judgment and order dated 20th March 2012. Feeling aggrieved, defendants no.1, 2, and 4 preferred the present Second Appeal before the Bombay High Court. The appellants' counsel argued that due to the death of one of the appellants and the failure to bring her legal representatives on record, the entire appeal stood abated, relying on the judgment in Ramrao Joti Godase v. Kisan Joti Godase (2012(2) Mh.L.J.741). The High Court examined the facts and the law. It noted that the suit was for partition, where all co-sharers are necessary parties. The death of Savitaben during the pendency of the appeal and the non-substitution of her legal representatives rendered the appeal abated. The court held that the judgment and decree passed by the lower appellate court without bringing the legal representatives on record are null and void. Consequently, the Second Appeal was allowed, the impugned judgment and decree were set aside, and the appeal before the District Judge was restored to its original number. The court directed the District Judge to decide the appeal afresh after bringing the legal representatives of the deceased appellant on record.
Headnote
A) Civil Procedure - Abatement of Appeal - Failure to Bring Legal Representatives - Order 22 Rule 4, Code of Civil Procedure, 1908 - In a partition suit, one of the appellants died during the pendency of the appeal, and her legal representatives were not brought on record. The appellate court proceeded to decide the appeal without noticing this fact. Held that the appeal abated in its entirety, and the judgment and decree passed by the lower appellate court are null and void. (Paras 2-5) B) Civil Procedure - Partition Suit - Necessity of Impleading All Parties - Order 22 Rule 4, Code of Civil Procedure, 1908 - In a suit for partition, all co-sharers are necessary parties. The death of one co-sharer without substitution of legal representatives renders the appeal incompetent and the decree unworkable, as it may lead to conflicting decrees. (Paras 3-5)
Issue of Consideration
Whether the appeal stood abated due to the failure to bring the legal representatives of the deceased appellant on record, and whether the judgment and decree passed by the lower appellate court is null and void.
Final Decision
Second Appeal allowed. Impugned judgment and decree dated 20th March 2012 passed by the District Judge, Dadra & Nagar Haveli at Silvassa in Regular Civil Appeal No. 4/2006 are set aside. The appeal is restored to its original number. The District Judge is directed to decide the appeal afresh after bringing the legal representatives of the deceased appellant on record. Pending civil applications disposed of.
Law Points
- Abatement of appeal
- Failure to bring legal representatives
- Partition suit
- Right to sue survives
- Order 22 Rule 4 CPC
- Section 4 of Limitation Act
