It is common knowledge that in the event of the death of one of the defendants, it is invariably pleaded that the suit has abated for non- impleadment of all the Legal Representatives. But the Apex Court has consistently held that suit does not abate for non impleadment of all of the legal representatives if there is substantial representation by other defendants.

It would be trite to refer to the case of Mahabir Prasad v. Jage Ram (1971) 1 SCC 265 wherein the Apex Court held thus:
"Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he 'is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate."

Reference is also invited to the Apex Court judgment in Dolai Molliko & Ors vs Krushna Chandra Patnaik & Ors 1967 AIR 49, 1966 SCR (2) 22. The brief facts of the case are that on the death of one of the plaintiffs/appellants in an appeal pending before the Subordinate Judge his widow and the major son were substituted on record as heirs. It was later discovered that the deceased had left some other heirs besides the two.

The respondents raised an objection that as some of the heirs of the deceased had been left out and there could be no question of want of 'knowledge of the existence of these heirs on the part of the widow and the major son who had applied for being brought on record, the appeal abated. The Apex Court held thus:

"The estate of the deceased was fully represented by the heirs who had been brought on the record and these heirs represented the absent heirs also, who would be equally bound by the result."

It was further observed thus:
"Even where the plaintiff or the appellant has died and all his heirs have not been brought on the record because of oversight or because of some doubt as to who are his heirs, the suit or the appeal, as the case may be, does not abate and the heirs brought on the record fully represent the estate unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceedings."

It would be apropos to refer to Bhurey Khan v. Yaseen Khan (Dead) By LRs. And Ors. 1995 Supp. (3) SCC 331, wherein the Apex Court following Mahabir Prasad (supra) reiterated the said dictum. The Court held thus:-

"……the estate of the deceased was thus sufficiently represented. If the appellant would not have filed any application to bring on record the daughters and the widow of the deceased the appeal would not have abated under Order 22 Rule 4 of the Code of Civil Procedure as held by this Court in Mahabir Prasad v. Jage Ram [(1971) 1 SCC 265 : AIR 1971 SC 742] . The position, in our opinion, would not be worse where an application was made for bringing on record other legal representatives but that was dismissed for one or the other reason. Since the estate of the deceased was represented the appeal could not have been abated."

It would be relevant to refer to a recent judgment of the Apex Court in the case of Shivshankara & Anr. vs H.P.Vedavyasa Char in Civil Appeal No.10215 of 2011 decided on 29 March, 2023 wherein the said dictum was reiterated holding thus:

33. As noticed earlier, the appellants have also contended that the suit ought to have been held as abated against all the defendants owing to non- substitution of all the legal representatives of the deceased defendant No. 3 upon his death. This contention is bereft of any basis and merits and was rightly repelled by the courts below. In that regard it is to be noted that the first appellant and deceased second appellant as also their father Hanumaiah were all arrayed in the suit as defendants and they were jointly defending the suit.

Upon the death of original third defendant viz., Hanumaiah the original defendants No.1 and 2, who are sons of the original defendant No.3 fully and substantially representing the joint interest contested the suit and, thereafter, after suffering an adverse judgment and decree in the suit diligently preferred the appeal before the High Court which ultimately culminated in the impugned judgment and decree. Even thereafter, obviously they are diligently prosecuting the joint interest, even if the contention of joint interest is taken as correct, by filing the captioned appeal.

35. In the decision in State of Andhra Pradesh through Principal Secretary and Ors. v. Pratap Karan and Ors.(2016) 2 SCC 82 this Court held:-

40. In the instant case, the plaintiffs joined together and filed the suit for rectification of the revenue record by incorporating their names as the owners and possessors in respect of the suit land on the ground inter alia that after the death of their predecessor-in-title, who was admittedly the pattadar and khatadar, the plaintiffs succeeded the estate as sharers being the sons of khatadar. Indisputably, therefore, all the plaintiffs had equal shares in the suit property left by their predecessors. Hence, in the event of death of any of the plaintiffs, the estate is fully and substantially represented by the other sharers as owners of the suit property.

Therefore, by reason of non-substitution of the legal representative(s) of the deceased plaintiffs, who died during the pendency of the appeal in the High Court, entire appeal shall not stand abated. Remaining sharers, having definite shares in the estate of the deceased, shall be entitled to proceed with the appeal without the appeal having been abated. We, therefore, do not find any reason to agree with the submission made by the learned counsel appearing for the appellants.

36. We are of the considered view that the same analogy is applicable in a case where even in the event of death of one of the defendants, when the estate/interest was being fully and substantially represented in the suit jointly by the other defendants along with deceased defendant and when they are also his legal representatives.

In such cases, 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 this case, it is to be noted that along with the deceased 3rd defendant the original defendant Nos. 1 and 2 were jointly defending their joint interest.

Hence, applying the ratio of the aforesaid decision and taking into account the fact that the appellants/ the original defendants No. 1 and 2 despite the death of original defendant No.3 defended the suit and preferred and prosecuted the first appeal. 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 non- substitution of all the legal heirs of deceased third defendant against all defendants. For the same reason, the contention that the suit was bad for non-joinder of necessary parties of all his legal heirs/representatives also has to fail."

The discussion shall be incomplete without referring to the Constitution Bench of the Apex Court in Sardar Amarjit Singh Kalra vs. Pramod Gupta, AIR 2003 SC 2588 which set to rest a similar controversy and held thus:

"Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice.

A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice.

........ With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law inevitably necessitates it."

After the authoritative pronouncements of the Apex Court in a catena of cases, it is no longer Res Integra that Suit does not Abate for non-impleading of All the LR's of deceased when they are substantially represented by other defendants on the suit. Any hyper- technical view against the spirit and dictum of the said judgments which impediments the grant of substantial justice is no longer maintainable in the eyes of law.

Written By: Inder Chand Jain
Email: [email protected], Ph no: 827994502