DWARIKA PRASAD versus NIRMALA AND ORS.

Citation: [2009] 16 S.C.R. 605 · Decided: 17-12-2009 · Supreme Court of India · Bench: B. SUDERSHAN REDDY · Disposal: Dismissed

Judgment (excerpt)

. ; 
(2009) 16 (ADDL.) S.C.R. 605 
DWARIKA PRASAD 
v. 
NIRMALA AND ORS. 
(Civil Appeal No. 8407 of 2009) 
DECEMBER 17, 2009 
[B. SUDERSHAN REDDY AND J.M. PANCHAL, JJ.] 
Suit: Restoration of suit -
Suit for partition of joint 
properties filed by deceased father- Dismissed as withdrawn 
A 
B 
- Right of plaintiff's daughter to restore the suit after death of C 
plaintiff - Held: Daughter and legal representative are entitled 
to continue the suit in view of the provisions of Hindu 
Succession Act - Only when right to sue is personal to 
deceased, same would not survive for benefit of his legal 
representatives - As per record she came to know later on 
D 
that.fraud was committed while getting partition suit dismissed 
as withdrawn - Hence, she was entitled to file application for 
restoration of the suit - Hindu Succession Act, 1956 - s.6 -
Code of Civil Procedure, 1908 - 0.22 r.3. 
Partition suit - Withdrawal of - Permissibility - Held: In 
E 
a suit for partition of joint properties every defendant is also 
in the capacity of the plaintiff and is entitled to decree in his 
favour, if it is established that he has share in the properties 
- On facts, suit for partition of the joint properties, dismissed 
as withdrawn without notice to another brother, who was also 
F 
entitled to share in the properties - Suit directed to be 
restored - Suit - Code of Civil Procedure, 1908 - 0.23 r.1. 
The father of respondent no.1 filed suit for partition 
of joint properties. The suit was decreed. In first appeal, 
G 
'r 
High Court set aside decree and remanded matter to trial 
court for fresh decision. Against order of remand, father 
of respondent no. 1 filed LPA. On 24.2.1997, an 
application for withdrawal of LPA was filed. The LPA was 
dismissed as withdrawn on the same day. On 28.2.1997, 
605 
H 
606 SUPREME COURT REPORTS (2009] 16 (ADOL.) S.C.R. 
t • 
A another application was filed for withdrawal of partition 
suit. The suit was dismissed as withdrawn on same day. 
On 11.8.1998, father of respondent no.1 expired. 
Respondent no.1 filed application for recalling the order 
dated 24.2.1997 on the ground that the application of 
B withdrawal did not bear signature of her father and her 
father's signatures were forged. It was mentioned in the 
application that one J.P. Sharma, advocate, had noted his 
appearance on behalf of her father in partition suit 
,. . 
subsequently without seeking no objection certificate 
c from the previous counsel, who had filed the plaint, and 
thereafter filed application for withdrawal of LPA, which 
was illegal and, therefore, the order disposing of the LPA 
as withdrawn should be recalled. 
High Court allowed the application for recalling the 
D order dated 24.2.1997 observing that fraud was played 
' .._ 
upon the Court and directed the Registrar of the Court 
to file a complaint against advocate J.P. Sharma and also 
against advocate who had identified the signature of 
father of the respondent No. 1. The High Court also 
E directed the Registrar to initiate criminal proceedings 
against the appellant who was supposed to be the 
beneficiary of the act of forging for initiating criminal 
proceedings by filing a complaint. In SLP, said order was 
upheld. 
F 
After hearing LPA, it was dismissed by High Court as 
not maintainable. SLP thereagainst was also dismissed. 
Thus order of remand became final. 
The trial court allowed the application of respondent 
G no.1 for restoration of partition suit. High Court upheld 
the same. Hence the present appeal. 
Dismissing the appeal, the Court 
HELD: 1. It is well settled that where the right to sue 
H 
is personal to the deceased, the same does not survive 
DWARIKA PRASAD v. NIRMALA AND ORS . 
607 
.... t 
for the benefit of his legal representatives. There is no 
A 
manner of doubt that late father of the respondent No. 1 
had filed suit for partition of the joint properties. On his 
death right to sue survived and the respondent No. 1 
being his daughter and legal representative was entitled 
to continue the suit in view of the provisions of Hindu 
B 
Succession Act. The deceased who was a male Hindu, 
-.\ 
claimed interest in the joint properties which were subject 
matter of suit for partition. The record does not indicate 
that he had executed a Will though the appellant claimed 
that he had executed a Will in favour of 'V'. The said 'V' c 
did not apply for being impleaded as a party to the 
proceedings nor claimed interest in the properties of 

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