MAHENDRA KUMAR versus LALCHAND AND ANR.

Citation: [2001] 1 S.C.R. 877 · Decided: 06-02-2001 · Supreme Court of India · Bench: M.B. SHAH · Disposal: Appeal(s) allowed

Judgment (excerpt)

-1 
MAHENDRA KUMAR 
A 
v. 
LALCHAND AND ANR. 
FEBRUARY 6, 2001 
[M.B. SHAH AND S.N. PHUKAN, JJ.] 
B 
Code of Civil Procedure, 1908: 
Order XXJJ Rule 5-Motherfiled suit/or partition of properties claiming 
to be joint family properties between herself, her son and one l-Preliminary C 
decree passed holding that the mother and son would get equal share-
Subsequently, a document was introduced alleging that the son had 
relinquished his share and, therefore, final decree passed holding that the 
mother and l were having an equal share in the said properties-Appeals 
filed by son and l-Mother died during pendency of the appeals-Application D 
for substitution in both the appeals allowed-J filed an application before 
High Court contending that he was the legal representative (LR) under a 
Will executed by the mother and as he had not been brought on record as 
LR of deceased in pending appeals, the same be dismissed as abated-J's 
application in the son's appeal was allowed and the appeal was dismissed 
as abated-In L's appeal the application for dismissal of appeal as abated E 
was dismissed and J was permitted to be impleaded-Validity of-Held: 
Undisputedly, the son is the legal heir of his mother-Therefore, the son is 
entitled to be substituted as legal heir of the deceased-J has not obtained 
probate of the Will and, therefore, there is no question of abatement of 
appeal-Hence, High Court erred in holding that the appeal filed by the son F 
abated. 
The appellant's mother filed a suit for partition of properties claiming 
to be joint family properties between herself, the appellant and respondent 
No. I. A preliminary decree was passed holding that the appellant and his 
mother would get equal share. Pending the passing of final decree a document G 
was introduced alleging that the appellant had relinquished his share in the 
property in favour of his mother. The trial court hdd that the appellant had 
relinquished his share and therefore, a final decree was passed holding that 
his mother and respondent No. t were having equal share in the said 
properties. 
877 
H 
878 
SUPREME COURT REPORTS 
[2001) I S.C.R. 
A 
The appellant and respondent No. 1 filed appeals against the aforesaid 
judgment. During the pend ency of the appeals the appellant's mother died. 
Applications for substitution filed in both the appeals under Order XXII Rule 
2 of the Code of Civil Procedure, 1908 were allowed. 
Thereafter, respondent No. 2. filed an application before the High Court 
B contending that he was the Legal Representative (LR) of the deceased mother 
under a Will executed by her and as he was not brought on record as the LR 
of the deceased in the pending appeals, the same be dismissed as abated. The 
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High Court allowed the said application and dismissed the appellant's appeal 
as abated. However, in respondent No. I's appeal the application for dismissal 
C of appeal as abated was dismissed and respondent No. 2. was permitted to be 
impleaded. For setting aside the said abatement order the appellant preferred 
an application before the High Court, which was rejected. Hence this appeal. 
Allowing the appeal, the Court 
D 
HELD : I. The order passed by the High Court holding that the appeal 
filed by the appellant stands abated is contrary to its own order passed in the 
appeal filed by respondent No. I. It is also contrary to Order XXII Rule 5 of 
the Code of Civil Procedure, 1908. [880-Cj 
2. Undisputedly, the appellant is a legal heir of his mother. Therefore, 
.l. -
E his right to sue survives ~rnd the appellant was entitled to be substituted as 
the legal representative of his deceased mother. Respondent No. 2. has not 
obtained probate. Hence, considering the procedure prescribed under Order 
XXII Rule 5 CPC, there is no question of abatement of appeal. It was for the 
respondent No. 2. who claims that the deceased has executed a Will in his 
favour to file proper application to be joined as party respondent by contending 
F that he is the 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. [880-F-H; 881-AJ 
G 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1051 of2001. 
From the Judgment and Order dated I 0.2.2000 of the Madhya Pradesh 
High Court in

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