Case Note & Summary
The case involves a second appeal arising from a suit for partition and separate possession. The original suit was filed by the plaintiffs (now respondents) against the defendants (now appellants) seeking partition of joint family property. The trial court decreed the suit, and the defendants appealed to the District Court at Satara in Regular Civil Appeal No. 149 of 2004. During the pendency of that appeal, two of the appellants, Bhagirathibai Maruti Dhane (original Defendant No. 3) and Gangubai Khashaba Kurne (original Defendant No. 6), died. The District Court, however, proceeded to hear the appeal and passed a judgment and decree on 30th March 2010, modifying the trial court's decree and granting shares to the deceased appellants. The appellants (the remaining defendants) then filed the present second appeal before the Bombay High Court, challenging the District Court's decree on the ground that the appeal had abated entirely due to the death of the two appellants, and thus the decree was a nullity. The High Court framed two questions of law: (1) whether the appeal abated only qua the deceased or entirely, and (2) if entirely, whether the decree was a nullity. The court held that in a partition suit, the right to sue survives against the remaining parties, and the death of some appellants does not cause abatement of the entire appeal. The appeal abates only qua the deceased appellants. Consequently, the decree passed by the District Court is not a nullity. The court answered the questions accordingly and dismissed the second appeal, confirming the District Court's decree.
Headnote
A) Civil Procedure - Abatement of Appeal - Partition Suit - Death of Appellant - Effect - In a suit for partition and separate possession, the death of some appellants during the pendency of the appeal does not cause abatement of the entire appeal; the appeal abates only qua the deceased appellants. The right to sue does not survive against the remaining parties as the suit is for partition and separate possession, and the shares of the deceased can be determined without their presence. (Paras 3-5) B) Civil Procedure - Nullity of Decree - Abatement - If the entire appeal does not abate, the judgment and decree passed by the lower appellate court after the death of some appellants is not a nullity. The decree is valid and binding on the remaining parties. (Para 5)
Issue of Consideration
Whether on the death of some appellants during the pendency of a partition appeal, the entire appeal abates or only qua the deceased, and whether the judgment and decree passed thereafter is a nullity.
Final Decision
The High Court held that the appeal abates only qua the deceased appellants and not entirely. Consequently, the judgment and decree of the District Court is not a nullity. The second appeal was dismissed.
Law Points
- Abatement of appeal in partition suit
- Partial abatement
- Nullity of decree
- Order 22 CPC
- Section 4 Partition Act
