Appeal Won't Abate For Not Adding Legal Heirs If Interest Of Deceased Is Sufficiently Represented By Others : Supreme Court

The Supreme Court on Monday (January 12) ruled that mere non-substitution of one of the legal heirs of a deceased party wouldn't render the suit abated if the deceased party's interest is adequately represented by other legal heirs.

A bench comprising Justices Manoj Misra and Ujjal Bhuyan set aside the Madhya Pradesh High Court's order, which declared the appeal against the specific performance decree as abated, merely because one of the legal heirs of the deceased vendor was not substituted, although his interest was adequately represented by other legal heirs.

The Court took reference from the recent case of Shivashankara vs HP Vedavyasa Char, 2023 LiveLaw (SC) 261 where it was observed that “where the estate of a deceased party is sufficiently represented by his legal heirs on record, proceedings would not abate if some of the heirs are left out.”

The case arose from a complex litigation history involving two interconnected suits. The first was a suit for specific performance filed by Respondent No.1 against deceased-Appellant, the original owner of the property, which culminated in a decree in Respondent No.1's favour in 2000. The second was a suit filed by purchasers who had bought the property from Appellant during the pendency of the first suit, seeking Respondent No.1's eviction. Both suits resulted in appeals before the High Court.

During the pendency of the specific performance appeal, Appellant-vendor died in 2005. His four legal heirs were substituted in 2006. One of them, Murarilal, later died in 2007, but his legal heirs were not immediately brought on record. Despite this, in 2013 the High Court passed an order holding that the appeal had not abated and later allowed Murarilal's heirs to be impleaded as pro forma respondents. However, in 2017, the High Court reversed course and declared the appeal abated, reasoning that Murarilal's non-substitution had vitiated the proceedings.

Aggrieved by the High Court's decision, the vendor's heirs appealed to the Supreme Court.

Setting aside the impugner order, the judgment authored by Justice Misra held that abatement is not to be applied mechanically and that the real test is whether the interest of the deceased party is “sufficiently represented” by those already on record.

In the present case, the deceased vendor's estate was represented by three surviving legal heirs and by the purchasers of the property, who held the title subject to the doctrine of lis pendens. This, the Court said, amounted to substantial and effective representation of the deceased's interest.

“In our view, there is a clear distinction between non-substitution of the legal representatives/ legal heirs of a deceased party and non-substitution of one of the heirs of a deceased party. In the latter, if the interest of the deceased party is sufficiently represented by other heirs/ legal representatives on record, there will be no abatement…”, the court observed.

Applying the law, the Court observed:

“In the present case, on the death of Kishorilal (i.e., appellant No.1) all his LRs were substituted as appellants No. 1(1), 1(2), 1(3) and 1(4), though, later, one of them, namely, Murarilal i.e., appellant 1(2), died. Since three legal heirs of Kishorilal were already on record, besides the appellants No.2 and 3 in whom title in the property resided, the estate of Kishorilal was sufficiently represented and, therefore, in our view, the appeal did not abate on non substitution of LRs of Murarilal….”

Furthermore, the Court summarized the following legal principles:

"(1) Before declaring a suit or proceeding to have abated on ground of non-substitution of the heirs/ legal representatives of a deceased party, the Court must examine whether the interest of the deceased party qua the subject matter of the proceeding is sufficiently represented by other parties already on record. If the interest of the deceased party is sufficiently represented by other parties already on record, and the decree/order eventually passed in the suit or proceeding would not be rendered nonexecutable for absence of that party, the suit or proceeding would not abate.

(2) In a suit for specific performance of an agreement for sale of an immovable property, vendor is a necessary party notwithstanding he has transferred his interest in the property to a third party. As a sequitur, a suit or an appeal emanating from such a suit would abate if, upon death of the vendor, his legal heirs/ representatives are not substituted.

(3) Though a transfer lis pendens is not always void, such transferee's title is subservient to the decree that may ultimately be passed in the pending suit. As a sequitur, a transferee lis pendens is not a necessary party in a suit for specific performance.

(4) However, a transferee lis pendens may pursue the appeal against a decree of specific performance against the vendor, as a legal representative/ inter-meddler of the estate of the vendor. But, having regard to the nature of decree that is required to be passed in a suit for specific performance, as held in Lala Durga Prasad (supra) and Dwarka Prasad (supra), the vendor would have to be impleaded as a party in the appeal and on his death, on non-substitution of his heirs /legal representatives, the appeal would abate."

Accordingly, the appeal was allowed, and the matter was restored to the High Court's file to be decided on the merits.

Cause Title: KISHORILAL (D) THR. LRS & ORS. VERSUS GOPAL & ORS.

Citation : 2026 LiveLaw (SC) 39

Click here to download judgment

Appearance:

For Petitioner(s) :Mr. Puneet Jain, Sr. Adv. Ms. Pratibha Jain, AOR Mrs. Christi Jain, Adv. Ms. Akriti Sharma, Adv. Mr. Harsh Jain, Adv. Mr. Mann Arora, Adv. Mr. Om Sudhir Vidyarthi, Adv. Mr. Aditya Jain, Adv. Mr. Siddharth Jain, Adv. Mr. Yogit Kamat, Adv. Mr. Abrar Ahmed, Adv. Mr. Arjun Kanadi, Adv.

For Respondent(s) :Mr. Yatindra Singh, Sr. Adv. Mr. Prashant Shukla, Adv. Mrs. Anushree Shukla, Adv. Mr. Kartik Kumar, Adv. Ms. Ojasvi, Adv. M/S. Prashant Shukla Law Chambers, AOR