Savarnkaur & Ors. vs Pratej Singh & Ors.

Invoking the appellate jurisdiction of this Court under Section 96 of the Code of Civil Procedure, 1908, the appellants herein/defendants have preferred this appeal challenging the judgment & decree dated 13.02.2018, passed by the Addl. District Judge, Dhamtari (CG) in Civil Suit No.629A/2012 (Pratej Singh and others v. Savarnkaur and others), by which the learned Additional District Judge has decreed the suit filed by respondent No.01/plaintiff- Pratej Singh for declaration of partition of 1/6 share in the suit house and also for separate possession in respect of the same.

The aforesaid challenge has been made on the following factual backdrop: -

(For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the civil suit before the trial Court.)

It is an admitted fact in the case that original plaintiff/respondent No.01 herein- Pratej Singh, late Harcharan Singh, late Avtar Singh, Smt. Satwant Singh (defendant No.11/respondent No.7 herein), Smt. Rajpal (defendant No.12/respondent No.8 herein) and late Smt. Iqbal, are all brothers and sisters and are the sons/daughters of Dr. Jaswant Singh Bhabra and Smt. Mohini Devi. The property in dispute is ancestral property.

The family tree of late Smt. Mohini Bai Bhabra, W/o Late Jaswant Singh Bhabara is as follows:

As per the averments made in the plaint, the suit property has been described as under:

The case of the respondent No.01/plaintiff, in brief, is that on 13.09.1957 late Mohini Devi purchased the suit property from Maksudan Bee and Saeeda Khatun by way of registered sale deed for consideration of Rs. 7,500/- and came into the possession of the suit property and, thereafter, the names of all the parties were recorded in the revenue records i.e Kistbandh B1 and Khasra by way of mutation dt. 25.03.2010. The suit property is known as “Bhabra Building” in the city.

It is further pleaded that the family of respondent No.01/plaintiff, the family of defendant no.6 and the family of appellant No.01/defendant no.1 are residing after making their own houses in the suit property and further aforesaid suit house and property is a joint property of the family members and no partition has been taken place. In the year 1994, in order to obtain separate possession of the suit house, son of the appellant No.01/defendant no.1 late Gunjeetsingh @ banti had prepared unregistered deed of family settlement through his advocate and without consent of the other co-sharers obtained the signature of the respondent No.01/plaintiff and defendant no.6 in the said deed forcibly. It is further pleaded that the said deed of family settlement is not valid due to non registration and lack of consent with the other co-sharers. Thus, as per Hindu law other co-sharers are also entitled to get 1/6 share in the suit property.

It is also pleaded in the plaint that in the year 2011, dispute arose between the parities for receiving the rent and possession of the shops situated in the suit property and criminal case was also initiated under Section 145 of CrPC between the parties. In the year 2012 another dispute arose for the part of the English liquor shop and further the appellant/defendant no.1 with the help of her son-in-law and outsiders tried to occupy the suit house forcibly. Hence, with aforesaid pleading, the respondent No.01/plaintiff filed a civil suit before the learned trial Court seeking a decree for declaration of partition of 1/6 share in the suit house and also for separate possession in respect of the same

The appellants/defendants filed its written statement and denied the averments of the plaint except the admitted facts and submitted that the civil suit filed by the respondent No.01/plaintiff, is barred by limitation and further respondents/defendant no.10, 11 & 12 have no title and right over the suit property at all because subsequently on 17.05.1994 partition already took place between the Respondent No.1/plaintiff no.1, late Avtarsingh and late Harcharansingh and they have occupied their own part in the suit property. The suit property was purchased by late Sardar Jaswantsingh Bhabra of his own income and, thus, he became the absolute owner of the suit property.

It was further submitted that after partition the appellant/defendant no.1 is receiving the rent amount and neither dispute nor quarrel raised with regard to receiving the rent amount ever by any party and further submitted that as per the deed of family settlement dated 17.05.1994 the respondent No.01/plaintiff accepted the title and ownership of the successors of the appellant/defendant no. 1 to respondent/defendants no. 5 (A), (D) (II) and they are in possession of the suit property as mentioned in the deed of family settlement dated 17.05.1994.

It was further submitted that some dispute arose between the respondent No.01/plaintiff and appellant/defendant no.1 with regard to the wall situated between the two shops, upon which, on 25.05.2012 the Sikh society settled the dispute by way of an agreement that the rent received from the said shops will be distribute by the Sikh society amongst them but the respondent/plaintiff no.1 and his family violated the terms of the deed of family settlement and the aforesaid agreement and trying to change the structure of the suit property as well as trying to enter into possession illegally in the suit property. Hence, on the basis of the above averments, it was prayed that the civil suit is liable to dismiss on grounds including misjoinder of parties, limitation and improper valuation.

The defendant no.6 to defendant no. 12 separately filed their written statement and supported the case of the respondent No.01/plaintiff and submitted that after the death of Mohini Devi, respondent No. 11 received one sealed envelope through his uncle namely late Sardar Chandan Singh and after opening the envelope there are some documents found i.e will, power of attorney and nomination letter left by Mohini Devi, pursuant to which, all parties are entitle to get rent which is received from the suit shops as well as entitle to get their 1/6th share in the suit property. Hence, they prayed to allow the civil suit filed by the respondent/plaintiff no.1.

That, the respondent/defendant no.11 filed a separate counter-claim on the basis of will deed dated 04.06.1989 executed by late Mohini Devi, Wife of late Sardar Jaswantsingh Bhabra and, according to which, all the legal heirs of late Mohini Devi Bhabra entered into an agreement in order to equally distribute 1/6 share of the suit property, but later on, without consent of the respondent/defendant no.11 to no.13, the respondent No.01/plaintiff and appellants/defendant no.1 to no.6 had prepared the deed of family settlement, in which, neither their names are mentioned nor their signatures are present and, due to which, they are deprived of their rights and further the alleged deed is not registered as required under Section 17 of the Registration Act, 1908 and further as per Section 23 of the Hindu Succession Act, 1956 they are entitled to get 1/6 share in the suit property. Hence, on the basis of the family arrangement and continuing cause of action, the counterclaim was filed on 09.05.2012 seeking the relief stated in paragraph 12 of the counterclaim.

On the other hand the respondent/plaintiff no.1 filed her written statement and denied the averment of the counter claim except the admitted fact.

That, the learned Trial Court on the basis of the pleadings and the written statement as well as the material evidence available on record, has framed as may as 17 issues and after due consideration of the facts and circumstances of the case, allowed the civil suit filed by the respondent No.01/plaintiff and counterclaim filed by the respondent/defendant no.11 by holding thus:

Being aggrieved by the aforesaid findings of the trial Court, the appellants herein have filed this appeal on the following grounds:-

Heard on the Appeal. In the context of the appeal and arguments, evidence and documents, available on record of the trial Court were examined.

In order to dispose of both the First Appeals, following questions are to be considered:-

The learned counsel for the appellant/defendants argued that Iqbal, the sixth child of Mohini Devi, who was impleaded as a defendant in the original suit, died on 05.09.2016 during the pendency of the suit. However, the application filed under Order XXII Rule 4 of the CPC for bringing her legal representatives on record was not pressed, and her legal representatives were consequently not brought on record. With the permission of the Court, her name was deleted from the array of parties on 24.03.2017. It was, therefore, contended that the plaintiff’s Pratej Singh suit had already abated before the Trial Court itself. It was further argued that the plaintiff Pratej Singh had deliberately adopted this course to manipulate Iqbal’s share and thereby secure the same for himself.

The learned counsel for the appellants/defendants further placed reliance on Suresh Chandra (Dead) v. Parasram, 2025 SCC OnLine SC 1427, and submitted that the Hon’ble Supreme Court, in the said judgment, has laid down the principles governing the circumstances in which a suit or appeal abates in its entirety and those in which the abatement is only partial. It was contended that, in view of the settled legal position and the principles laid down in the aforesaid judgment, owing to the failure to bring the legal representatives of the original defendant Iqbal on record within the prescribed period, the plaintiff’s suit had abated in its entirety, rendering the judgment and decree passed by the Trial Court defective and unsustainable in law.

Per contra, the learned counsel for the respondent/plaintiff, contended that the failure to bring the legal representatives of deceased defendant Iqbal on record would not result in abatement of the entire suit, as all the other persons having rights in the suit property were already on record. Reliance was placed on T. Gnanavel v. T.S. Kanagaraj and Another, (2009) 14 SCC 294, in support of the contention that the Court has the power under Order XXII Rule 4 CPC to exempt the plaintiff from the necessity of substituting the legal representatives of a deceased defendant.

Further reliance was placed on Dolai Maliko (Dead) v. Krushna Chandra Patnaik and Others, 1966 SCC OnLine SC 152; Morasa Anjaiah v. Kondra Gunte Venkateswarlu, 1992 SCC OnLine AP 20; Kishorilal (D) v. Gopal and Others, 2026 SCC OnLine SC 53; and Mahmud Mian v. Shamsuddin Mian, (2005) 11 SCC 582, in support of the contention that the suit does not necessarily abate in its entirety on account of the failure to bring the legal representatives of a deceased defendant on record.

It was argued that the legal principles laid down in the aforesaid judgments are equally applicable to the facts and circumstances of the present case and, therefore, the Trial Court committed no error in proceeding with the suit without holding that the entire suit had abated. On this basis, the learned counsel submitted that the decision of the Trial Court is proper and warrants no interference.

Before the trial Court, the witnesses examined on behalf of the plaintiff are- Shailvinder Kaur (PW-01), Smt. Jasbir Kaur (Pw-02) and Dhirendra Rao (PW-03) and exhibited documents vide Ex.P/01 to Ex.P/22C. Whereas, in defence, defendants examined Smt. Savarnkaur (DW-01) and Rakesh Diwan (DW-02) [on behalf of Defendants No.01 to 05] and Gurendra Singh (DW-01) [on behalf of defendant No.11] and exhibited documents vide Ex.D/01 to Ex.D/09.

Although the Trial Court has discussed the evidence in detail, it is significant to note that the fact that the suit property belonged to Mohini Devi and that she had six children is undisputed. Five of them are on record, either in person or through their legal representatives. Upon the death of Iqbal, the sixth daughter of Mohini Devi, the Trial Court, vide order dated 24-03-2017, permitted deletion of her name without bringing her legal representatives on record and passed a decree in the following terms:-

Thus, an apparent error emerges from the record of the Trial Court, inasmuch as the legal representatives of one of the defendants, Iqbal, were not brought on record. Although the decree indicates that the Trial Court considered late Iqbal entitled to a one-sixth share in the suit property, the judgment cited by the respondent/plaintiff, T. Gnanavel v. T.S. Kanagaraj and Another, (2009) 14 SCC 294, holds that the Court has the power under Order XXII Rule 4 of the CPC to exempt the plaintiff from the necessity of substituting the legal representatives of a deceased defendant. However, the applicability of this principle depends upon the facts and circumstances of each case, and the said provision does not lay down an inflexible rule applicable to every case.

It is particularly noteworthy that this is not a case where Iqbal, the daughter of Mohini Devi, had no legal representatives. On the contrary, paragraph 25 of the cross-examination of Shaili @ Shailvinder Kaur (P.W.-1) clearly indicates that Iqbal was also married at Devendra Nagar, Raipur, and that her husband and children were residing there.

In view of this, the question that arises for consideration is whether the failure to bring Iqbal’s legal representatives on record resulted in abatement of the entire suit and whether the Trial Court could have proceeded to adjudicate the matter in their absence ?

In this regard, the respondent/defendant has relied upon the judgment in Suresh Chandra (Dead) v. Parasram, 2025 SCC OnLine SC 1427, and contended that, having regard to the nature of the suit instituted, the entire suit would abate. The Supreme Court, in this judgment, has expressed its opinion on this issue with reference to various judicial precedents. The relevant extracts from the said judgment are reproduced herein below.

Although the respondent/plaintiff has also relied upon the judgments in Dolai Maliko (Dead) v. Krushna Chandra Patnaik and Others, 1966 SCC OnLine SC 152; Morasa Anjaiah v. Kondra Gunte Venkateswarlu, 1992 SCC OnLine AP 20; Kishorilal (D) v. Gopal and Others, 2026 SCC OnLine SC 53; and Mahmud Mian v. Shamsuddin Mian, (2005) 11 SCC 582, in support of the contention that the entire suit would not abate, it is pertinent to note that Suresh Chandra (Dead) v. Parasram, 2025 SCC OnLine SC 1427 clarifies that the question of total or partial abatement depends upon the facts and circumstances of each case.

Therefore, the present case is being examined in the light of the principles laid down in Suresh Chandra (supra), particularly the tests governing the nature of the decree and the possibility of contradictory or irreconcilable decrees in the absence of the legal representatives of the deceased party. In the light of the aforesaid principles laid down by the Supreme Court, upon examination of the facts and circumstances of the present case, it appears that the entire suit cannot be held to have abated merely on account of non-substitution of the legal representatives of late Iqbal.

It is neither a case where, in the absence of the legal representatives of the deceased party, the adjudication would result in contradictory decrees, the necessary relief could not be granted against the surviving parties alone, or the decree against them would be ineffective or incapable of execution, nor is it a case where the rights of the parties cannot be adjudicated separately. On the contrary, several material facts in the present case are undisputed, and the rights of the parties can be determined separately, enabling an effective decree to be passed against the surviving parties. Therefore, applying the principles laid down in Suresh Chandra (Dead) v. Parasram, 2025 SCC OnLine SC 1427, the entire suit cannot be held to have abated merely on account of the non-substitution of the legal representatives of late Iqbal.

With regard to the question as to whether the judgment and decree passed by the Trial Court, granting the plaintiff a one-sixth share in the suit property, suffer from any illegality or infirmity warranting interference in this appeal, it is pertinent to note that Iqbal was not residing in the city where the suit property is situated. A perusal of the record further reveals that there is a serious dispute among the legal heirs of Mohini Devi regarding possession of the suit property.

In such circumstances, if Iqbal's legal representatives are not brought on record and are not made aware of the proceedings, There is a possibility that one or more interested parties may misuse or appropriate the share belonging to Iqbal's legal heirs. This also raises material questions as to who would be entitled to Iqbal's share; whether her legal representatives intend to relinquish their rights and, if so, in whose favour; or, if they do not intend to relinquish their rights, who among them is entitled to claim a share in the property as her legal heir. These aspects required proper examination by the Trial Court.

It is significant that, although Iqbal's legal representatives were not impleaded as parties, they fall within the category of necessary parties under Order I Rule 10 of the CPC, and their presence was essential for the effective and complete adjudication of the dispute. The Trial Court committed a material error in overlooking this aspect while passing the decree. In the absence of Iqbal's legal representatives, the decree, insofar as it concerns the determination and enforcement of the respective shares in the suit property, may not be capable of effective execution. Therefore, for the proper and effective adjudication of the dispute, the presence of Iqbal's legal representatives appears to be necessary.

In view of the foregoing discussion, the judgment and decree passed by the Trial Court cannot be sustained and deserve to be set aside. Accordingly, the appeal is allowed, and the judgment and decree dated 13.02.2018, passed by the Addl. District Judge, Dhamtari (CG) in Civil Suit No.629A/2012 (Pratej Singh and others v. Savarnkaur and others) are hereby set aside.

The matter is remanded to the Trial Court for retrial and fresh adjudication in accordance with law, after impleading the legal representatives of Late Iqbal as parties and affording due opportunity of hearing to all concerned parties. The Trial Court shall independently examine the matter afresh on its own merits, without being influenced by any observations or findings made in this judgment, which shall not be treated as binding while deciding the suit afresh.

Considering that the matter is an old one, the Trial Court is directed to conclude the retrial and decide the suit within three months from the date of receipt of the record. The parties are directed to appear before the Trial Court on 17.11.2026.

The record be transmitted to the Trial Court forthwith.