MAHENDRA KUMAR versus LALCHAND AND ANR.

MAHENDRA KUMAR versus LALCHAND AND ANR.

High Court erred in dismissing the appeal as abated without following statutory procedure under Order XXII Rule 5, as the appellant, being undisputedly the legal heir, was entitled to substitution. Abatement was not warranted since Respondent No. 2 had not obtained probate of Will and proper determination of legal representative was not made.

Parties
Appellant: Mahendra Kumar; Respondent No. 1: Lalchand S/o Dhanna Lal Mahajan; Respondent No. 2: Shrikrishna S/o Jitendra Kumar Chaurasia
Jurisdiction
India
Judgment Date
06 February 2001
Procedural Posture
Civil Appeal / Final Decision on Appeal From High Court Order
Outcome
Appeal allowed
Legal Topics
Partition, Substitution of Legal Representatives, Abatement of Appeal
Civil Procedure Partition Substitution of Legal Representatives Abatement of Appeal

Case Brief

Summary, issues, holding and outcome

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Parties

Mahendra Kumar

Appellant

Lalchand S/o Dhanna Lal Mahajan

Respondent No. 1

Shrikrishna S/o Jitendra Kumar Chaurasia

Respondent No. 2

Procedural Posture

Civil Appeal / Final Decision on Appeal From High Court Order

Legal Issues

  1. 1 Whether High Court erred in dismissing appeal as abated without following Order XXII Rule 5 CPC
  2. 2 Whether appellant is entitled to be substituted as legal representative of deceased mother
  3. 3 Effect of absence of probate of Will on abatement of appeal

Ratio Decidendi

High Court erred in dismissing the appeal as abated without following statutory procedure under Order XXII Rule 5, as the appellant, being undisputedly the legal heir, was entitled to substitution. Abatement was not warranted since Respondent No. 2 had not obtained probate of Will and proper determination of legal representative was not made.

Court Disposition

Appeal allowed

Orders

  • Impugned order of High Court is set aside
  • Appellant directed to make application for impleadment of Respondent No. 2 as party