Suit Will Not Be Abated On Death Of One Defendant If Estate Is Fully & Substantially Represented By Other Defendants- SC Affirms

A Supreme Court Bench of Justice BR Gavai and Justice CT Ravikumar has held that a suit cannot be held to be abated due to the death of one of the defendants, when the estate was being fully and substantially represented in the suit jointly by the other defendants on record.

Senior Counsel Kiran Suri appeared for the appellants while Senior Counsel Narender Hooda appeared for the respondent.

In this case, a civil appeal was preferred before the Supreme Court where the primary issue was whether the suit was abated on account of the non-joinder of all legal representatives of a deceased defendant. It was contended that the suit ought to have been held as abated against all the defendants owing to the non-substitution of all the legal representatives of the deceased defendant upon his death.

In that regard, the Apex Court placed reliance on the judgment passed in the cases of Bhurey Khan v. Yaseen Khan (Dead) By LRs. And Ors. and State of Andhra Pradesh through Principal Secretary and Ors. v. Pratap Karan and Ors., to hold that "by reason of non-impleadment of all other legal heirs consequential to the death of the said defendant, the defendants could not be heard to contend that the suit should stand abated on account of non-substitution of all the other legal representatives of the deceased defendant."

In similar context, the Court further took the considered view that "Upon the death of the second appellant the joint interest is being fully and substantially taken forward in this proceeding as well by the first appellant along with the substituted legal representatives of the deceased second appellant, we do not find any reason to disagree with the conclusions and findings of the courts below for rejecting the contention that suit ought to have held abated owing to the nonsubstitution of all the legal heirs of deceased third defendant against all defendants."

Further, the Court also observed that the defendants did not have a case of ownership over the suit schedule property and that they failed to establish any better claim for possession.

By extension of the same, it was held that "the original defendants failed to raise sufficient and appropriate pleadings in the written statement that they have better right for possession of the suit properties. No amount of proof offered without appropriate pleadings would have any relevance". 

Consequently, the appeal failed and was dismissed. No orders were passed as to costs.

Cause Title: Shivshankara & Anr. v. H.P. Vedavyasa Char

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