Ishaque Khan and Others vs Jaubar Ali Khan and Others

Ashwini Kumar Sinha, J.—Some of the defendants (heirs of original defendant not. 1 and 2) are the appellants in the present second appeal. This appeal is against the final decree passed in Partition Suit No. 3 of 1961. The question involved in this appeal though seems to be short and simple yet at the same time is a very interesting one. The question is whether absence of the heirs of Shakhawat Khan as also Kabir Khan, the original defendants, on the record after passing of the preliminary decree and before the preparation of the final decree rendered the final decree in question a nullity. The learned counsel appearing for the defendants-appellants has contended that the heirs of Shakhawat Khan and Kabir Khan (the original defendant Nos. 1 and 3) and Most. Nazo (one of the substituted heirs of original defendant No. 2 Baratu Khan) having not been brought on the record before the preparation of the final decree, the final decree was a nullity and has to be set aside and the view of the appellate court, to the effect that the final decree having been prepared in presence of the appellants and the appellants having participated in the preparation of the final decree could not be challenged by the appellants and it was only voidable at the instance of the legal representatives of such defendants who died after the passing of the preliminary decree, was wrong.

Admittedly Sheikhawat Khan (defendant No. 1), Kabir Khan (defendant No. 3) and Most. Nazo (one of the substituted heirs of Baratu Khan (defendant No. 2) died after the preliminary decree and before the final decree was sealed and signed and it is also admitted that the final decree was prepared in absence of the heirs of these persons. So the question is whether the final decree, under such circumstance, was a nullity or only voidable at the instance of the legal representatives of the aforesaid deceased defendants.

It is well settled that there is no abatement on account of the death of a party after the preliminary decree as, the rights of the parties stand already determined by that decree. In view of such well established principle of law the provisions of Rules 3 and 4 of Order 22 of the CPC (hereinafter referred to as ''the Code'') have no application in case of death of a party after the preliminary decree and the case is governed by the provisions of Rule 10 of Order 22 of the Code. Reference be made to the case of Babuie Shanti Devi Vs. Khodai Prasad Singh and Others, and also to the case of Ramsewak Mishra and Another Vs. Mt. Deorati Kuer and Others, .

If the provisions contained in Rules 10 and 11 of Order 22 of the Code are read together, it makes it clear that if, in a suit for partition one of the plaintiff dies after the preliminary decree, his heirs and legal representatives can be brought on the record by original court dealing with proceedings for preparation of the final decree and not by the appellate court before which appeal has been preferred against the final decree passed by the trial court. A substitution, therefore, can be made only by the trial court which passed the final decree and not by court sitting in appeal.

It is also well settled that the effect of non-substitution of the heir of one of the deceased plaintiff before the final decree is to render the decree null and void, as a decree either for or against a dead person is absolutely an ineffectual and invalid. Reference be made to the case of Ajay Kumar Makhopadhaya v. Pushpabala Choudhury (AIR 1952 Asa 54) and the case of Ramsewak Mishra and Another Vs. Mt. Deorati Kuer and Others, .

It is also well settled that where after the preliminary decree in a partition suit one of the defendants dies and no step is taken by the plaintiff to bring the heirs of the deceased-defendant on the record within time, the suit does not abate against the heirs of the deceased. In such a case the proper procedure for the court is that the court should adjourn the proceedings with liberty to the plaintiff to continue the proceedings for final determination of the allotment to all the parties, including the heirs of the deceased. Reference be made to the case of AIR 1924 198 (Privy Council) . In view of such well established principles of law, the court of appeal below, in my opinion, has taken absolutely wrong view of law in holding that a final decree in such a situation can only be challenged by the legal representatives of the deceased-defendants (who died alter the passing of the preliminary decree) who remained non-substituted and not by other defendants who were represented during the entire proceeding of the decree, preliminary as well as the final. This view has been taken by the lower appellate court on the basis of the decision in the case of Jungli Lall and others v. Laddu Ram Marwari and another ( AIR 1919 Pat 430 FB). In my opinion, the ratio decided in the case of Jungli Lal and others (supra) could not be applied by the lower appellate court on the facts of the present case. The question referred to in the full Bench case of Jungli Lal and others (supra) was--"Whether it is open to the representatives of a judgment debtor to object to execution of a decree on the ground that the judgment-debtor was dead at the time the decree was made against him and that the decree was therefore a nullity" and the Full Bench answered the question in affirmative. Thus the court of, appeal below has wrongly relied upon the case of Jungli Lall and others (supra) for the preposition of law to which it came to; that is, the final decree could be challenged only by the legal representatives of the deceased-defendant who died after the passing of the preliminary decree) who remained non-substituted. The question before the Full Bench (supra) was absolutely a different one. In the result, the appeal succeeds and the judgment and decree of the appellate court are set aside and the case is sent back to the trial court. The trial court shall give liberty to the plaintiff to take steps for substitution of the heirs of the deceased defendants and the plaintiffs will be entitled to continue the proceedings for final determination of litigation to all the parties, including the heirs of the deceased defendant. The trial court, after the steps for substitution are taker by the plaintiff, will finally determine the litigation to the parties including the heirs of the deceased-defendants and will then pass a final decree in accordance with law. However, in the circumstances of the case, there will be no order as to costs.