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CASE NO.: Appeal (civil) 1051  of  2001

PETITIONER: MAHENDRA KUMAR

       Vs.

RESPONDENT: LALCHAND AND ANOTHER

DATE OF JUDGMENT:       06/02/2001

BENCH: M.B. Shah & S.N. Phukan.

JUDGMENT:

Phukan, J. L...I...T.......T.......T.......T.......T.......T.......T..J Leave granted.

   The  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.

   The  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.

   Against   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.

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That  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.

   Thereafter,  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.

   In  our 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:  -

   5.    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 Court :

   Provided  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.

   Undisputedly,  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 the  Will. On  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.

   Further,  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

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appellant on the ground that appeal has abated.

   Learned 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.

   For  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.

   In  the  result, the appeal is allowed and the  impugned order is set aside.  Parties to bear their own costs.