Suit Won't Abate For Not Impleading All LRs Of Deceased Defendant If Estate Was Substantially Represented By Other Defendants : Supreme Court

The Supreme Court has held that a suit will not abate for not impleading all legal representatives of the deceased defendant, if the estate of the deceased was otherwise substantially represented by other defendants on record.Suit can't be held to be abated in the event of death of one of the defendants, when the estate/interest was being fully and substantially represented in the suit jointly by the other defendants along with deceased defendant and when they are also his legal representatives, observed a bench comprising Justices BR Gavai and CT Ravikumar.The bench was deciding the issue in a civil appeal whether the suit was abated on account of non-joinder of all legal representatives of a deceased defendant. The bench noted that the the first appellant and deceased second appellant as also their father were all arrayed in the suit as defendants and they were jointly defending the suit. Upon the death of original third defendant no.3 (the father), the defendants No.1 and 2, who are sons of the original defendant No.3 fully and substantially representing the joint interest contested the suit. In appeal before the Supreme Court, they raised a contention that the suit is bad for non-joinder of the parties, from who the defendants claimed title (it was a suit by the plaintiff based on possessory title).The appellants also contended that the suit ought to have been held as abated against all the defendants owing to nonsubstitution of all the legal representatives of the deceased defendant No. 3 upon his death.In this regard, the bench referred to the precedents in Bhurey Khan v. Yaseen Khan (Dead) By LRs. And Ors 1995 Supp. (3) SCC 331 and State of Andhra Pradesh through Principal Secretary and Ors. v. Pratap Karan and Ors (2016) 2 SCC 82. As per these decisions, the suit will not abate for the reason of non-substitution of all the legal representatives of the deceased defendant, if the estate is otherwise substantially represented.Based on these precedents, the bench observed :"We are of the considered view that the same analogy is applicable in a case where even in the event of death of one of the defendants, when the estate/interest was being fully and substantially represented in the suit jointly by the other defendants along with deceased defendant and when they are also his legal representatives. In such cases, by reason of non-impleadment of all other legal heirs consequential to the death of the said defendant, the defendants could not be heard to contend that the suit should stand abated on account of non-substitution of all the other legal representatives of the deceased defendant".The judgment authored by Justice Ravikumar further stated :"In this case, it is to be noted that along with the deceased 3rd defendant the original defendant Nos. 1 and 2 were jointly defending their joint interest. Hence, applying the ratio of the aforesaid decision and taking into account the fact that the appellants/ the original defendants No. 1 and 2 despite the death of original defendant No.3 defended the suit and preferred and prosecuted the first appeal. Upon the death of the second appellant the joint interest is being fully and substantially taken forward in this proceeding as well by the first appellant along with the substituted legal representatives of the deceased second appellant, we do not find any reason to disagree with the conclusions and findings of the courts below for rejecting the contention that suit ought to have held abated owing to the nonsubstitution of all the legal heirs of deceased third defendant against all defendants. For the same reason, the contention that the suit was bad for non-joinder of necessary parties of all his legal heirs/representatives also has to fail".Also from the judgment : Section 52 TP Act -Alienation Of Suit Property Pendente Lite Not Invalid; But It'll Be Subject To Rights Of Litigants : Supreme CourtIn Suit For Possession, Prior Possession Becomes Relevant When Both Parties Fail To Establish Title : Supreme CourtCase Title : Shivashankara vs HP Vedavyasa CharCitation : 2023 LiveLaw (SC) 261Code of Civil Procedure 1908 - Order XLI Rule 23 - There can be no doubt with respect to the settled position that the Court to which the case is remanded has to comply with the order of remand and acting contrary to the order of remand is contrary to law. In other words, an order of remand has to be followed in its true spirit - Para 7Code of Civil Procedure 1908 - Order VI Rule 17 -in dealing with prayers for amendment of the pleadings the Courts should avoid hyper technical approach. But at the same time, we should keep reminded of the position that the same cannot be granted on the mere request through an application for amendment of the written statement, especially at the appellate stage - Para 14Transfer of Property Act 1882 - Section 52- Lis Pendens- It is a well-nigh settled position that wherever TP Act is not applicable, such principle in the said provision of the...

Suit Won't Abate For Not Impleading All LRs Of Deceased Defendant If Estate Was Substantially Represented By Other Defendants : Supreme Court

LIVELAW NEWS NETWORK

Tags