If a Sharer Dies & the LRs are Not Impleaded – Partition Suit as a Whole Abates. But the Court SHOULD Direct Either Side to Take Steps to Bring in the Legal Heirs

Saji Koduvath, Advocate, Kottayam.

Introspection

Will a partition suit as a whole abate if a sharer dies and his legal representatives are not impleaded?

Answer – Yes, the entire partition suit will abate.

  • This is because it involves and hinges on the legal question – whether a sharer in a partition suit is a necessary party.
  • Since the rights and interests of all co-sharers must be determined collectively, the absence of a necessary party renders the adjudication incomplete and invalid, thereby causing the suit to abate as a whole.
  • Order 22, rules 3 and 4 of the Code of Civil Procedure provide for an automatic abatement.

Can a partition suit be dismissed for ‘abatement’?

Answer – No, the suit cannot be dismissed for abatement.

  • This is because partition suits are treated with certain unique characteristics under our benevolent legal system.
  • Unlike ordinary civil suits, a partition suit is considered a continuing cause of action, and the rights involved do not lapse merely due to the death or absence of a party.
  • The courts, recognising the collective and evolving nature of such claims, allow for substitution or continuation, ensuring that justice is not defeated by procedural technicalities.
  • Therefore, whenever it comes to the notice of the court that there will be prejudice to the parties for not impleading the legal heirs of a deceased party to a partition suit, the court should direct either side of the proceedings to take steps to bring in the legal heirs to the party array, and proceed thereon; because, it will be improper, if not illegal, to dismiss a partition suit or appeal on the principles of ‘abatement’.

Prologue

  • 1. It is axiomatic that a suit cannot proceed in the absence of a necessary party – Mitthulal v. Badri Prasad, AIR 1981 MP 1; Mumbai International Airport v. Regency Convention Centre , (2010) 7 SCC 417; Udit Narain Singh v. Addl. Member, Board of Revenue, AIR 1963 SC 786.
  • 2. A sale deed was executed by one person in favour of several persons (jointly). One among them died, and his legal heirs were not impleaded. Hence, the suit was abated (put an end) against him/successors. It results in the abatement (end) of the entire appeal – Raghu Sutar v. Nrusingha Nath Thakur, AIR 1959 Ori. 148; Bhajan Jena v. Panchu Jena,  AIR 1958 Ori. 246;  Harihar Pati v Sisir Kumar Bose,  AIR 1959 Ori. 41.
  • 3. It is different from a case where the interests of the purchasers were separable (by the sale deed itself) – Baij Nath v. Ram Bharose, AIR 1953 All 565; Raghu Sutar v. Nrusingha Nath Thakur, AIR 1959 Ori. 148.
  • 4. An Appeal would abate on account of the death of a necessary party whose legal representatives have not been brought on record within the prescribed period – Om Sarup Nand Lal v. Gur Narain, AIR 1965 Punj 367.
  • 5. On the death of a necessary party, the suit will stand abated due to the failure of the plaintiff to take steps for substitution – Shrimati Panna Bala Manna v. Basudeb Manna, 2011-2 CalLJ 471.
  • 6. If a plaintiff/respondent in whose favour the decree was passed dies, the appeal abates so far as he is concerned on the omission to implead his legal representative within the time allowed by law and if he was a necessary party to the appeal, the entire appeal becomes incompetent and cannot be proceeded with – Santosh Kumar Mondal v. Nandalal Chakrapani, AIR 1963 Cal. 289; State of Punjab v. Nathu Ram, AIR 1962 SC 89, Kali Dayal v. Nagendra Nath, 24 Cal WN 44 : AIR 1920 Cal 264; Bishnu Bijoy v. Chandra Bijoy, AIR 1955 Cal 281.

Necessary Party

In Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited, (2010) 7 SCC 417, it is held as under:

  • “15. A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party” is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.” (Quoted in: Urban Improvement Trust, Bikaner v. Gordhan Dass, 2024-3 SCC 250.)

In Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar, AIR 1963 SC 786, it was held as under:

  • “The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.” (Quoted in: Assam Small Scale Ind. Dev. Corp. Ltd.  v. JD Pharmaceuticals, AIR2006 SC131; 2005-13 SCC 1)

Potential Arguments Against Abatement

In a partition suit, every party—whether plaintiff or defendant—is considered a necessary party. Ordinarily, unless appropriate steps are taken to bring the legal heirs on record, the death of a party may lead to abatement of the suit. However, there are strong legal and equitable arguments that can be raised to say that there is no abatement (of the whole suit) in certain situations, such as:

  1. One of the plaintiffs died. His legal heirs cannot take a different stand from what had been taken by their predecessor (and that taken by the living co-plaintiffs).
  2. If the deceased defendant had filed a written statement admitting the plaint, and his legal heirs cannot take a different stand.
  3. The heirs of the deceased co-sharer or co-owner is a necessary party to the suit, and each one can come on record, afterwards, on his own application, under Order 21, Rule 10 CPC.

Counter to the above arguments is that there is no settled legal principle that supports the view. But, in case of a final decree proceedings, the following assertions are germane –

  1. Once a court passes a preliminary decree, it must ensure that the matter is referred to the Collector or a Commissioner for division unless the parties themselves agree the manner of division.
  2. A decree in a partition suit enures to the benefit of all co-owners.
  3. There is no limitation for filing a final decree application in law.

Final decree without LRs may cause prejudice

It is plain – it is a reality that the final decree proceedings without a sharer may cause prejudice to the legal heirs of the deceased, and also to other parties to the suit; and that there is a possibility of inconsistent decrees – one in favour of the surviving parties and the other in favour of the deceased party.

Recent Supreme Court Decisions

In a recent decision of our Apex Court, Suresh Chandra v.  Parasram, 18 July 2025, the verdict of the High Court, that found that there was no sufficient cause to condone the delay in filing an application to set aside the abatement on the death of a co-appellant, while the appeal was pending in the High Court, was upheld; and also confirmed the dismissal of the suit by the High Court. The application had been filed by the first appellant, on the death of the second appellant, his near relative. The Supreme Court held as under:

  • “On abatement of second appeal qua the second appellant Ram Babu, the entire second appeal abated as continuance of the second appeal would have given rise to a possibility of inconsistent decrees i.e., one in favour of the plaintiff against the deceased defendant-appellant  and the other in favour of the surviving defendant appellant, even though both defendants claimed joint interest in the suit property flowing from their father.”

In Venigalla Koteswaramma v. Malampati Suryamba, 2021 (4) SCC 246, a suit was instituted, inter alia, for partition, our Apex Court accepted the submission that the whole appeal before the High Court had been abated due to non-substitution of the legal representatives of the deceased defendant, after surveying several decisions including a five-Judge Bench decision of the Supreme Court in Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272.  (Venigalla Koteswaramma v. Malampati Suryamba, 2021 (4) SCC 246, is referred to in: Suresh Chandra v.  Parasram, 18 July 2025)

Court WILL Exercise its Inherent Power to set aside Abatement

Rule 9 of Order 22 CPC enables only the plaintiff or the person claiming to be the legal representative of the deceased plaintiff to apply for an order to set aside the abatement – the legal representatives of a deceased defendant are not so enabled. Therefore, the heirs of the deceased defendant are free to come on record on his own application, invoking the inherent power of the court. (See: Provat Chandra v. Rabindra Nath, AIR 1960 Cal 291;  Sriramula Ramachandram v. Sriramula Bhoodamma, AIR 1994 AP 79.)

In such cases, even though the defendant has been given no power to make an application to set aside the abatement, the Court has inherent power to set aside the abatement and enable the suit to be proceeded with. The Court should exercise this inherent power to save the parties from the trouble and costs of a second partition suit and traverse the grounds already traversed. The court will exercise this power in appropriate cases. (See: Provat Chandra v. Rabindra Nath, AIR 1960 Cal 291;  Sriramula Ramachandram v. Sriramula Bhoodamma, AIR 1994 AP 79.) It is further held in Provat Chandra v. Rabindra Nath, AIR 1960 Cal 291, as under:

  • “There is however the provisions of O. 1, R. 10 of the Code which is very wide in its terms and which would enable the legal representative of a deceased defendant to be added as a party. ……. This power is very extensive and there is no limitation curtailing or restricting the power of the Court to add parties under O. 1, R. 10 of the Code of Civil Procedure. In exercise of the power under this rule, the Court has power and should exercise that power to save a partition suit which has abated.” (Quoted in: Sriramula Ramachandram v. Sriramula Bhoodamma, AIR 1994 AP 79.)

Earlier, in Morasa Anjaiah v. Kondragunte Venkateswarlu, AIR 1993 AP 156, it was opined that the court has no inherent power to set aside abatement, as it can be invoked only when there is no specific provision in the Code and that a party cannot be allowed to have recourse to the general provisions of Order 1, Rule 10 C.P.C. for impleading the legal representatives. This view is not accepted by a single judge in Sriramula Ramachandram v. Sriramula Bhoodamma, AIR 1994 AP 79, and said as under:

  • “But in Morasa Anjaiah v. Kondragunte Venkateswarlu, AIR 1993 AP 156 a Division Bench of this Court relying on the judgment of the Supreme Court in Union of India v. Ram Charan, AIR 1964 SC 215 held as follows:– “in view of this decision of the Supreme Court (Ram Charan’ ‘s case, AIR 1964 SC 215), the judgment of the Madras High Court in M. Ramakrishna Reddi v. R. Narasimha Reddi, AIR 1932 Mad 527 and the judgment of the Calcutta High Court in Provat Chandra v. Rabindra Nath, AIR 1960 Cal 291, in so far as they held that the Court has inherent power to set aside the abatement, are no longer good law.” With respect to the Division Bench, I demur.”

The Legitimate View to Settle the Controversies

  • Whenever it comes to the notice of the court that there will be prejudice to the parties for not impleading the legal heirs of a deceased party to a partition suit, the court SHOULD direct either side of the proceedings to take steps to bring in the legal heirs to the party array, and proceed thereon; because, it will be improper, if not illegal, to dismiss a partition suit or appeal on the principles of ‘abatement’.

No abatement in execution of a partition suit because of a Specific Provision

In UP, there will be no abatement in execution of a decree in a partition suit (for not impleading LRs), because of a specific provision.  It is pointed out in Rudra Pal Singh v. Ram Pal Singh, AIR 1972 All. 67, as under:

  • “The Allahabad High Court has made certain amendments in the Rule, and the amended Rule 12 of Order XXII, C.P.C. reads thus:
    • “Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order or to proceedings in the original court taken after the passing of the preliminary decree where a final decree also requires to be passed having regard to the nature of the suit.” 
  • Because of this amendment, there is no question of abatement either of the execution proceeding or of the preparation of the final decree in case of the death of a party. The amendment made by the Allahabad High Court certainly has got no retrospective effect, as was held by this Court in ‘AIR 1935 ALL 180’ (Sewa Ram v. Gian Singh).” See also: AIR 1931 ALL 490 (FB)”. 
  • Quoted in: Muthulakshmi v. R. Purusothaman, decided on 27 April, 2009 (Madras).

No Final Decree Against the Deceased Party; If so, Nullity

AN Ray, J. further observed in 1962, in Sohanlal Serowgie v. Gambhirmull Serowgie, 1962-67 CalWN 417, as under:

  • “Mr. Bhabra rightly contended that if, after the preliminary decree, the party dies, then the final decree could not be made against the deceased party, as such decree would be a nullity as against the deceased party.
    • See: Sakti Nath v. Jessore United Bank Ltd., AIR 1939 Cal. 403,
    • Mr. Abdur Rahim v. Ezekiel, 39 CWN 1284.
  • It was pointed out in Nazir Ahmed v. Tamizaddin, 57 Cal. 285, that it is necessary to have the legal representative of the deceased party substituted in place of the deceased party. Mr. Bhahra contended that this substitution is made under Or. 22 r. 10 of the Code and the provision under rr. 3 and 4 of O. 22 have no application.
    • See: Shanti Devi v. Khodai Prosad Sinha, AIR 1924 Pat. 340
    • Lalbehari v. Ishwar, AIR (1956) Pat. 376
    • Eknath v. Hanmantram,   AIR (1947) Nag. 75,
    • Bhusan Chandra v. Chabimoni, 53 C. W. N. 582.
  • It is thus manifest that a party may be added to the suit after the preliminary decree and the manner in which the legal representative has to be brought on record should be by amending the cause title in the plaint and also by inserting in the body of the plaint, if necessary, the character in which he is brought and the liabilities which he has or the rights which he asserts.
    • See: Janab All v. Satis Chandra, AIR 1936 Cal. 698 at 699 and
    • Jagannath v. Parameshwar, AIR 1940 PC 11.”

Preliminary Decree Must Be Potential Enough

A N Ray, J. pointed out in 1962, in Sohanlal Serowgie v. Gambhirmull Serowgie, 1962-67 CalWN 417, that the definition of decree says that the decree conclusively determines the rights of the parties with regard to all or any of the matters in controversy in suit; and that the preliminary decree must be pregnant enough to take further proceedings. It is observed as under:

  • “It will appear from the definition of decree that the decree conclusively determines the rights of the parties with regard to all or any of the matters in controversy in suit. In the preliminary decree, there are further proceedings to be taken before the suit can be completely disposed of. When such further proceedings remain to be taken, the suit is pending and there can be amendment of the plaint as has been held by the Judicial Committee in Jagannath Roy v. Parameshwar,   AIR 1940 PC 11, and Bhutnath v. Tarachand, 25 C. W. N. 595.

In Phoolchand v.. Gopal Lal, AIR 1967 SC 1470, it was found, in a partition suit – even after the preliminary decree, an amendment is permissible until the passing of the final decree on account of subsequent events leading to variation in shares.

In Partition Suits, No adjudication of Title of Transferee; Still Add him

In Ram Prasad Rauniar v. Bishwanath Prasad Rauniar, AIR 1976 Pat 94, it was pointed out, relying on Khetterpal Sritirutno v. Khelal Kristo Bhuttacharjee, (1894) ILR 21 Cal. 904, that two fundamental principles were to be borne in mind in dealing with such cases.

  • (i) “A transferee from one of the co-sharers from out of his share of an undivided property has no separate existence for the purpose of the partition suit, apart from his transferor. That being so, in a pure suit for partition, the derivative title of such a transferee does not fall for any adjudication.”
  • (ii) “The second basic principle in cases of this nature is that although such a transferee of an undivided share of a joint property cannot claim as a matter of right to be added as a necessary party to the suit, yet the important advantage of his being so permitted to be represented at the time of final allocation and allotment of shares is that it lightens the partition suit by avoiding the necessity of deciding as to the existence and validity of the transfers claimed over the undivided shares. Keeping these principles in view, it cannot be said that in the absence of defendant No. 9, who was appellant No. 3 in the Lower Appellate Court, the rights and liabilities of the parties in so far as the partition of the suit lands was concerned, could not be effectively adjudicated upon. It also follows as a necessary concomitant of the second principle enunciated above that in order to lighten the partition suit by avoiding the necessity of deciding as to the existence and validity of the transfers in question it is meet and proper in the circumstances of the case to add the present appellants 4 to 9, who are the heirs of the original defendant No. 9 as party appellants before the Lower Appellate Court ex debito justitiae.”

This decision emphasises that a ‘sharer’ is a necessary party.

Partition  Suits – Whether Mortgagee a Necessary Party

In Jadu Nath Roy v. Parameswar Mullick, AIR 1940 PC 11, it was considered whether a mortgagee was a necessary party in a partition suit. It was pointed out that a partition necessarily affected the interest of a mortgagee, but he was not a necessary party. Sir George Rankin said as under:

  • “A partition necessarily affects the interest of a mortgagee of an undivided share, since after the partition, his security is upon the divided share or the separate allotment. For this reason, some High Courts in India would appear to join such mortgagees as parties to the suit as a matter of course, and by some English authorities [cf. Daniel’s Chancery Practice (Edn. 8) p. 198] the practice is considered to be that while a mortgagee upon the whole estate is not a necessary party a mortgagee of one of the undivided portions would be a necessary party [cf. Swan v. Swan, (1819) 8 Price 518=22 RR 770 ; Sinclair v. James, (1894) 3 Ch 554=63 LJ Ch 873=8 R 637=71 LT 483. The practice in Bengal follows the lines laid down by Sir Arthur Wilson in 1880 in Mohindro Bhoosun v. Soshee Bhoosun, (1880) 5 Cal 882 where a person having a disputed claim to be a mortgagee from the plaintiff in a partition suit applied to be joined.”
  • “In Khetterpal Sritirutno v. Khelal Kristo Bhuttacharjee, (1894) 21 Cal 904 at p. 909 stated the practice succinctly: A mortgagee is not a necessary party to a partition suit but he may and frequently does obtain leave to attend the proceedings as a quasi-party.”
  • “The question as between the plaintiff and the defendant is who is entitled to the property in dispute? To determine that question it is not necessary that the mortgagees should appear; they will not be bound by any finding come to in their absence. In case of a decree for partition being made the mortgagees should have leave to come in and attend the partition proceedings.”

Sir George Rankin quoted from Khetterpal Sritirutno v. Khelal Kristo Bhuttacharjee, (1894) ILR 21 Cal. 904, where Sale J. said as under:

  • “A mortgagee is not a necessary party to a partition suit, but he may, and frequently does, obtain leave to attend the ‘proceedings as a quasi-party’.”

Further, Sale J. added as under:

  • “If the mortgagee had proceeded to a sale pending the partition, the purchaser would have become a necessary party to the partition suit’.”

It is beyond doubt – the Privy Council proceeded on the basis that a ‘sharer’ was a necessary party.

End Notes

Order 22, Rule 3 of Code of Civil Procedure reads as under:

  • 3. Procedure in case of death of one of several plaintiffs or of sole plaintiff– (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
  • (2) Where within the time limited by law no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the decreased plaintiff.

Order 22, Rule 10 of the CPC reads as under::

  • 10. Procedure in case of assignment before final order in suit. (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
  • (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).

Note – Order 22, Rule 10, CPC recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made.

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