Case Note & Summary
The case involves a second appeal arising from a partition suit. The appellant, original Defendant No.1, challenged the decrees passed by the trial court and the lower appellate court. The suit was for partition and separate possession of property. During the pendency of the suit, two defendants (Defendant No.3 and Defendant No.5) died. Their legal heirs were not brought on record. The trial court passed a decree on 30.12.2009, and the lower appellate court partly allowed the appeal on 20.06.2012. The appellant contended that the entire suit abated due to the failure to bring the legal heirs of the deceased defendants on record. The High Court framed two substantial questions of law regarding abatement. The court held that in a partition suit, the right to sue is joint and indivisible; if any party dies and their legal representatives are not brought on record, the entire suit abates. The court relied on the principle that a decree for partition cannot be passed in the absence of necessary parties. Consequently, the High Court allowed the appeal, set aside the judgments of the courts below, and held that the suit abated as a whole.
Headnote
A) Civil Procedure - Abatement of Suit - Partition Suit - Order 22 Rule 4 CPC - Death of Defendant - Failure to bring legal heirs on record - The suit for partition and separate possession was filed by the plaintiff. During pendency, Defendant No.3 died on 10.07.2007 and Defendant No.5 died on 22.07.2001. Their legal heirs were not brought on record. The trial court and lower appellate court proceeded to decide the suit on merits. Held that the entire suit abates as the right to sue does not survive against the remaining defendants alone in a partition suit. (Paras 3-5)
Issue of Consideration
Whether the suit for partition abates entirely when some defendants die during pendency and their legal heirs are not brought on record.
Final Decision
The High Court allowed the second appeal, set aside the judgments and decrees of the trial court and lower appellate court, and held that the entire suit abated.
Law Points
- Abatement of suit
- Partition suit
- Legal representatives
- Order 22 CPC
- Entire suit abates if any party dies and legal heirs not brought on record
