Shankarlal And Ors vs Shivlal And Ors

Birendra Kumar, J

The instant Civil First Appeal is against judgment and decree dated 19.01.2009 passed in Civil Original Suit No.258/2005, whereby, plaintiffs-respondents’ suit for partition of their 1/10th share in the suit property has been decreed.

Appellant No.8-Smit Lalita Devi is already dead and this fact has been brought to the notice of the Court by the respondents by their Application (IA) No.01/2022 dated 29.09.2022. The appellants did not take any steps for substitution of heirs of appellant No.8-Smt. Lalita Devi, hence, by order dated 12.09.2023, a Bench recorded that the appeal is abated against appellant No.8-Smt. Lalita Devi. The Bench further directed for hearing on “whether the appeal would survive at the hands of the remaining appellants or would abate as a whole”.

No one appears for the appellants.

Heard learned counsel for the respondents.

To consider whether the right to sue survives at the hands of the appellants, it would be apt to look into the background of the case.

The case and claim of the plaintiffs is that one Roopchand was common ancestor of the parties. He had acquired self-properties movable and immovable, fully detailed in the plaint. Late Roopchand left behind five sons and four daughters. One of his sons, namely Moolchand predeceased Roopchand way back on 25.07.1988. The widow, sons and daughters of Moolchand brought the suit for partition. The appellants, who are sons and daughters of Roopchand were defendants and contested the suit stating therein that infact the entire property was of Roopchand and he has inducted some of the appellants (sons) as partners in the business and after death of Roopchand, the surviving partners got the entire property.

Appellant No.8-Smt. Lalita Devi was one of the daughters of Roopchand. Roopchand died on 31.05.2005, leaving behind the aforesaid Class-I heirs without making any testamentary disposition of property. Therefore, the self-acquired property of Roopchand after death of Roopchand would go to Class-I heirs of the Schedule of Hindu Succession Act, 1956 consistent with the provisions of Section 8, 9 and 10 of the said Act. On perusal of the list of Class-I heirs, it is evident that all the plaintiffs and defendants are Class-I heirs of Roopchand. They will get equal share in the said property, therefore, in absence of deceased appellant No.8- Smt. Lalita Devi as well as in absence of her legal heirs after death of appellant No.8- Smt. Lalita Devi, a suit for partition and apportionment of share cannot go on. The appeal is continuation of the suit. Hence, after death of appellant No.8-Smt. Lalita Devi and non-substitution of her legal heirs till date, the appeal would abate as a whole.

Accordingly, the instant Civil First Appeal stands dismissed as abated.