Non-substitution of some of the heirs/ legal representatives of a deceased party – Abatement of proceedings – When not – Estate of a deceased party if sufficiently represented by legal heirs on record, proceedings would not abate if some of the heirs are left out – First respondent filed suit for specific performance of agreement to purchase the suit scheduled property against appellant no.1-‘K’ (since deceased), now represented through his LRs – During pendency of the suit, appellants No.2 and 3 (appellants in connected appeal) purchased the suit property from ‘K’ – Suit decreed– Appeal (F. A. No.213 of 2000) filed by ‘K’ and appellants No.2 and 3 – ‘K’ died during pendency of the appeal, his four legal heirs were substituted as appellants No.1(1), 1(2)-‘M’, 1(3) and 1(4) – One of the LRs, ‘M’-Appellant No.1(2) died – On his death, the remaining appellants filed application for deletion of ‘M’ from the array of parties – On deletion of ‘M’ from the array of parties in the appeal, and non-substitution of his LRs, application was filed by the first respondent to dismiss the appeal as having abated – Dismissed by High Court – Application was filed to implead heirs of ‘M’, allowed vide order dtd.03.05.2013 – Eventually, High Court dismissed the appeal as having abated holding that on deletion of ‘M’s name from the array of parties, the appeal abated – Challenge to: Held: View of the High Court that the appeal had abated is erroneous – Where the estate of a deceased party is sufficiently represented by his legal heirs on record, proceedings would not abate if some of the heirs are left out – On the death of appellant No.1-‘K’, all his LRs were substituted as appellants No.1(1), 1(2)-‘M’, 1(3) and 1(4), though, later, one of them, appellant 1(2)-‘M’, died – Since three out of four legal heirs of ‘K’ were already on record, besides the appellants No.2 and 3 in whom title in the property resided, the estate of ‘K’-the vendor was sufficiently represented and, therefore, the appeal did not abate on non-substitution of LRs of ‘M’ as was rightly held earlier by the High Court vide order dtd.03.05.2013 – Impugned order(s) passed by the High Court, set aside – First appeals restored. [Paras 39, 40, 47] Non-substitution of heirs/ legal representatives of a deceased party – Suit/proceeding, if abates – Factors to be examined: Held: Before declaring a suit or proceeding to have abated on ground of non-substitution of the heirs/ legal representatives of a deceased party, the Court must examine whether the interest of the deceased party qua the subject matter of the proceeding is sufficiently represented by other parties already on record – If the interest of the deceased party is sufficiently represented by other parties already on record, and the decree/order eventually passed in the suit or proceeding would not be rendered non-executable for absence of that party, the suit or proceeding would not abate – In a suit for specific performance of an agreement for sale of an immovable property, vendor is a necessary party notwithstanding he has transferred his interest in the property to a third party – Thus, a suit or an appeal emanating from such a suit would abate if, upon death of the vendor, his legal heirs/ representatives are not substituted – Further, though a transfer lis pendens is not always void, such transferee’s title is subservient to the decree that may ultimately be passed in the pending suit – Therefore, a transferee lis pendens is not a necessary party in a suit for specific performance – However, a transferee lis pendens may pursue the appeal against a decree of specific performance against the vendor, as a legal representative/ inter-meddler of the estate of the vendor – But, having regard to the nature of decree that is required to be passed in a suit for specific performance, the vendor would have to be impleaded as a party in the appeal and on his death, on non-substitution of his heirs / legal representatives, the appeal would abate. [Para 38]
Suit for specific performance – Vendor, if a necessary party: Held: Yes – Vendor is a necessary party in a suit for specific performance of an agreement for sale, notwithstanding that vendor has transferred his interest in the subject matter of the agreement to a third party as the transferee/ third party cannot be subjected to special covenants, if any, between the vendor and the plaintiffpurchaser – Besides that, the object of the decree of specific performance is to put the person who has agreed to purchase the property in the same position which he would have obtained in case the contracting parties i.e., vendor and the purchaser had, pursuant to the agreement, executed a deed of sale and completed it in every way. [Para 35]
Non-substitution of the legal representatives/ legal heirs of a deceased party vis-a-vis non-substitution of one of the heirs of a deceased party:
Held: There is a clear distinction between non-substitution of the legal representatives/ legal heirs of a deceased party and nonsubstitution of one of the heirs of a deceased party – In the latter, if the interest of the deceased party is sufficiently represented by other heirs/ legal representatives on record, there will be no abatement. [Para 40]
Principle of res judicata – Applicability of – Whether the order of the High Court dtd.03.05.2013, holding that appellants No. 2 and 3 along with other heirs of ‘K’ sufficiently represented his interest in the appeal, would, by the principle of res judicata, bar a declaration that the appeal had abated:
Held: Yes – Once the High Court vide order dtd.03.05.2013 had taken the view that appeal had not abated on non-substitution of heirs of ‘M’ i.e., appellant No.1(2), as other heirs of ‘K’ were on record besides appellants 2 and 3, it was not open for the High Court to revisit the issue later, because such an exercise by the High Court was hit by principle of res judicata which applies with equal force to different stages of the same proceeding as it does to a separate subsequent proceeding [Para 41]
Code of Civil Procedure, 1908 – Or.1, r.10 – Whether by allowing impleadment of the heirs and legal representatives of ‘M’ as proforma respondents in F. A. No. 213 of 2000, vide order dtd.03.05.2013, the High Court, in effect set aside abatement, if any:
Held: Since the appeal had not abated on non-substitution of legal heirs of deceased ‘M’ i.e., appellant No.1(2), there was no question of setting aside abatement – Rather, the High Court was well within its jurisdiction in allowing impleadment of his heirs as proforma respondents in exercise of powers u/Or.1, r.10. [Para 46] Whether, in the peculiar facts of the case, the High Court ought to have condoned the delay and set aside the abatement, if any, of F.A. No.213 of 2000:
Held: In view of the conclusion that the appeal had not abated, the High Court had the discretion to allow impleadment of M’s heirs and for such impleadment, it was not required to condone the delay or to set aside abatement. [Para 46] Code of Civil Procedure, 1908 – ss.151, 152:
Held: Direction in the order dtd.09.05.2011 to delete appellant No.1 was a clerical/ typographical error inasmuch as the prayer made was to delete appellant No.1(2) i.e., ‘M’ from the array of parties as other LRs of ‘K’ sufficiently represented his interest – Such a mistake could be corrected at any stage in exercise of powers u/ss.151 and 152 – Therefore, the plaintiff-respondent cannot take advantage of the said mistake. [Para 44]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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