DWARIKA PRASAD versus NIRMALA AND ORS.

DWARIKA PRASAD versus NIRMALA AND ORS.

The daughter and legal representative of the deceased plaintiff was entitled to restore and prosecute the partition suit since the right to sue survived to the heirs under Hindu Succession Act and Order 22 Rule 3 CPC; withdrawal of partition suit by fraud without notice to all entitled parties was improper and restoration was rightly ordered.

Parties
Appellant: Dwarika Prasad; Respondent No.1: Nirmala
Jurisdiction
India
Judgment Date
17 December 2009
Procedural Posture
Civil Appeal / Final Judgment on Appeal Against High Court's Dismissal of Revision Petition, After Restoration of Partition Suit
Outcome
Appeal dismissed
Legal Topics
Restoration of Suit, Partition of Joint Properties, Right of Legal Representatives, Withdrawal of Suit, Fraud on Court
Civil Procedure Succession Law Property Law Restoration of Suit Partition of Joint Properties Right of Legal Representatives Withdrawal of Suit Fraud on Court

Case Brief

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Parties

Dwarika Prasad

Appellant

Nirmala

Respondent No.1

Procedural Posture

Civil Appeal / Final Judgment on Appeal Against High Court's Dismissal of Revision Petition, After Restoration of Partition Suit

Legal Issues

  1. 1 Whether the legal representative (daughter) is entitled to restore a partition suit dismissed as withdrawn by fraud after the death of the plaintiff
  2. 2 Whether withdrawal of partition suit without notice to all entitled parties is permissible
  3. 3 Whether the appellant has locus standi to object to restoration when the withdrawal was obtained by fraud

Ratio Decidendi

The daughter and legal representative of the deceased plaintiff was entitled to restore and prosecute the partition suit since the right to sue survived to the heirs under Hindu Succession Act and Order 22 Rule 3 CPC; withdrawal of partition suit by fraud without notice to all entitled parties was improper and restoration was rightly ordered.

Court Disposition

Appeal dismissed

Orders

  • Restoration of Civil Suit No. 3A of 1996 as ordered by High Court and Additional District Judge confirmed
  • No order as to costs