Kumar Vs. Lalchand & Anr  Insc 65 (6 February 2001)
Shah & S.N. Phukan. Phukan, J.
appellant Mahendra Kumar filed M.C.C. No. 283 of 1998 for setting aside the
abatement order passed in First Appeal No. 69 of 1987. The appeal was filed
challenging the judgment and decree dated 6th June, 1987 and 14th July, 1987 passed by the 5th Additional District Judge, Indore in Civil Suit No.2 of 1972. During
the pendency of the said appeal appellants mother Rambhabai died. That appeal
was dismissed as abated on the ground that legatee under the Will executed by Rambhabai
was not joined as party respondent.
Suit was filed by Rambhabai for partition of the properties claiming to be
joint family properties between herself, the appellant and respondent Lalchand
S/o Dhanna Lal Mahajan. A preliminary decree was passed in the said suit
holding that appellant and his mother will get equal share i.e. 50: 50 percent,
in the property left by Dhanna Lal father of Lalchand. Pending passing of final
decree a document dated 7th
July, 1961 was
introduced by alleging that her son (Appellant) has relinquished all his rights
and share in the property in her favour. That said document was denied by the
appellant and the evidence was recorded by the trial court. The trial court
held that appellant has relinquished his share by the said document and,
therefore, final decree was passed holding that Rambhabai and Respondent No.1, Lalchand
were having equal share in the said properties.
the said judgment and decree, appellant preferred First Appeal No. 69 of 1987
and Lalchand preferred First Appeal No. 80 of 1987. In both these appeals
deceased Rambhabai was respondent No.1. She died on 9.11.1995. The appellant
filed an application for substitution under Order XXII Rule 2 read with Section
151 C.P.C. contending that he was the son of deceased Rambhabai and was the
sole legal representative and the name of respondent No.1, Rambhabai, be deleted
from the cause list.
application was allowed by order dated 1st February, 1996. To that effect Lalchand also filed
an application in the First Appeal which was also allowed by order dated 17th January, 1996.
respondent No.2, Shrikrishna S/O Jitendra Kumar Chaurasia, filed an application
in the High Court that he is L.R. of deceased Rambhabai as she has executed
Will on 20th August, 1980 in his favour and as he has not been brought on
record as legal representative of deceased in pending appeals, the same be
dismissed as abated. On 13th
March, 1997 both the
appeals were placed before the court and court allowed the application and
dismissed the appeal filed by the appellant as abated. However, in First Appeal
No.80 of 1987 the application for dismissal of appeal as abated was dismissed
and applicant was permitted to be impleaded as respondent No.2. For setting
aside the said abatement order the appellant preferred the aforesaid
application which was rejected, hence this appeal.
view, the order passed by the High Court holding that appeal filed by the
appellant stands abated is contrary to its own order passed in appeal filed by Lalchand.
It is also contrary to order XXII Rule 5, which is as under: -
Determination of question as to legal representative Where a question arises as
to whether any person is or is not the legal representative of a deceased
plaintiff or a deceased defendant, such question shall be determined by the
that where such question arises before an Appellate Court, that Court may,
before determining the question, direct any subordinate Court to try the
question and to return the records together with evidence, if any, recorded at
such trial, its findings and reasons therefor, and the Appellate Court may take
the same into consideration in determining the question.
the appellant is a legal heir of his mother Rambhabai. Therefore, his right to
sue survives and appellant was entitled to be substituted as legal
representative of deceased Rambhabai. However, the question would be, whether Rambhabai
has executed Will dated 20th
August, 1980, in favour
of Respondent No.2, Shrikrishna, and if so, by not joining him whether the
appeal would abate? Respondent No.2 has not obtained probate, hence considering
the procedure prescribed under the above-quoted Order XXII Rule 5, there is no
question of abatement of appeal. It was for the respondent No.2 Shrikrishna Chourasia,
who claims that Will has been executed by the deceased Rambhabai in his favour
to file proper application to be joined as party respondent by contending that
he is legal representative as the estate has devolved upon him on the basis of
such application being filed, the Court was required to determine it under
Order XXII Rule 5. This legal provision was completely overlooked by the High
Court and on this ground the impugned judgment and order is not sustainable.
while dismissing the appeal filed by the present appellant by the impugned
judgment, High Court did not recall the Order already passed for deletion of
name of late Rambhabai. Having formed the opinion that the appeal could proceed
in the absence of late Rambhabai, High Court erred in law in dismissing the
appeal filed by the present appellant on the ground that appeal has abated.
counsel for the appellant has fairly stated that the appellant would make an
application before the court below for impleadment of the present respondent
no.2 as party and we direct him to do so.
the reasons stated above, we hold that the High Court erred in law in
dismissing the appeal filed by the present appellant on the ground of abatement
without following the procedure laid down under Order XXII CPC.
result, the appeal is allowed and the impugned order is set aside. Parties to
bear their own costs.