High Court of Karnataka Allows Appeal in Partition Suit Due to Non-Joinder of Necessary Party and Lack of Proper Representation. The court set aside the trial court's decree as it was passed against a dead person and without impleading legal representatives of the deceased plaintiff, violating principles of natural justice under Order 1 Rule 9 CPC.

High Court: Karnataka High Court Bench: BENGALURU In Favour of Accused

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2026-05-18 15:52:49

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Case Note & Summary

The appellants, who were defendants 1 to 6 in the trial court, filed this Regular First Appeal under Section 96 read with Order 41 Rule 1 of the Code of Civil Procedure, 1908 (CPC), challenging the judgment and decree dated 30.04.2015 passed in O.S. No.68/2013 by the II Additional Senior Civil Judge at Kalaburagi. The suit was for partition and separate possession of suit properties. The trial court decreed the suit in favor of the plaintiffs. The appellants contended that the suit was filed by one plaintiff, who died during the pendency of the suit, and his legal representatives were not brought on record. Additionally, one of the defendants died, and the suit proceeded against a dead person. The appellate court found that the trial court's decree was passed against a dead person and without impleading necessary parties, rendering the decree a nullity. The court allowed the appeal, set aside the trial court's judgment and decree, and remanded the matter to the trial court for fresh disposal after impleading the legal representatives of the deceased plaintiff and the deceased defendant. The court directed the trial court to give an opportunity to the parties to lead evidence and dispose of the suit afresh in accordance with law.

Headnote

A) Civil Procedure Code - Non-Joinder of Necessary Party - Order 1 Rule 9 CPC - Partition Suit - The suit was filed by one plaintiff who died during pendency; his legal representatives were not brought on record, and the suit proceeded against a dead defendant. The appellate court held that the trial court's decree was a nullity as it was passed against a dead person and without impleading necessary parties. (Paras 1-10)

B) Civil Procedure Code - Decree Against Dead Person - Abatement - Section 96 CPC - The appeal was allowed, the judgment and decree of the trial court were set aside, and the matter was remanded for fresh disposal after impleading the legal representatives of the deceased plaintiff and the deceased defendant. (Paras 10-12)

Issue of Consideration

Whether the trial court's judgment and decree in a partition suit are sustainable when a necessary party (the deceased plaintiff's legal representatives) was not brought on record and the suit proceeded against a dead person.

Final Decision

The appeal is allowed. The judgment and decree dated 30.04.2015 passed in O.S. No.68/2013 by the II Additional Senior Civil Judge at Kalaburagi are set aside. The matter is remanded to the trial court for fresh disposal after impleading the legal representatives of the deceased plaintiff and the deceased defendant. The trial court shall give an opportunity to the parties to lead evidence and dispose of the suit afresh in accordance with law. No order as to costs.

Law Points

Non-joinder of necessary party
Order 1 Rule 9 CPC
Section 96 CPC
Order 41 Rule 1 CPC
Partition suit
Necessary party
Proper party
Right to sue
Decree against dead person
Abatement

Case Details

NC: 2024:KHC-K:2119

RFA No. 200084 of 2018 (PAR/POS)

2024-03-12

G Basavaraja

NC: 2024:KHC-K:2119

Sri. Naresh V. Kulkarni (for appellants)

Smt. Kasturibai, Smt. Shivaleela, Smt. Jaya Shree, Smt. Vijaylaxmi, Srishail, Sharanu

Smt. Kantabai, Smt. Roopa, Chanveer, Pavitra, Shantappa

Nature of Litigation

Regular First Appeal against judgment and decree in a partition suit.

Remedy Sought

Appellants sought to set aside the trial court's judgment and decree and remand the matter for fresh disposal.

Filing Reason

The trial court decreed the suit in favor of the plaintiffs despite the death of the plaintiff and a defendant, without impleading their legal representatives.

Previous Decisions

The trial court (II Addl. Senior Civil Judge, Kalaburagi) passed judgment and decree dated 30.04.2015 in O.S. No.68/2013, decreeing the suit for partition.

Issues

Whether the trial court's decree is sustainable when the suit proceeded against a dead defendant and without bringing the legal representatives of the deceased plaintiff on record.

Submissions/Arguments

Appellants argued that the suit was filed by one plaintiff who died during pendency, and his legal representatives were not brought on record; also, one defendant died and the suit proceeded against a dead person, making the decree a nullity.

Ratio Decidendi

A decree passed against a dead person is a nullity. Non-joinder of necessary parties, such as legal representatives of a deceased party, vitiates the proceedings. The trial court must ensure all necessary parties are on record before proceeding with the suit.

Judgment Excerpts

The appellants, who are defendants 1 to 6 before the trial court, have preferred this appeal, being aggrieved by the judgment and decree dated 30.04.2015, passed in OS No. 68/2013 on the file of II Addl. Senior Civil Judge at Kalaburagi. The suit was filed by one plaintiff, who died during the pendency of the suit, and his legal representatives were not brought on record. One of the defendants also died, and the suit proceeded against a dead person. The trial court's decree is a nullity as it was passed against a dead person and without impleading necessary parties.

Procedural History

The suit O.S. No.68/2013 was filed before the II Addl. Senior Civil Judge at Kalaburagi for partition. The trial court decreed the suit on 30.04.2015. Aggrieved, the defendants (appellants) filed this Regular First Appeal under Section 96 CPC before the High Court of Karnataka, Kalaburagi Bench, which was heard and disposed of on 12.03.2024.