A partition appeal does not abate as a whole upon a co-sharer’s death.

Smt. Sukari and Smt. Satyawati brought a partition suit concerning agricultural land.

The trial court decreed partition, but the first appellate court reversed that decree.

In the plaintiffs’ second appeal, Sukari died and was deleted from the cause title. Defendant No. 5, Sonai, had also died, but her legal representatives were not brought on record.

The High Court allowed the second appeal and restored the trial court’s partition decree. Defendant Nos. 2 and 3 then sought recall of that judgment, contending that the appeal had abated against Sonai and the decree had been passed without her legal representatives.

Whether the second appeal, arising from a partition suit, abated as a whole because the legal representatives of deceased defendant No. 5 were not brought on record.

Whether the applicants were entitled to recall of the High Court’s judgment and decree on that ground.

Order XXII Rules 4 and 11 of the Code of Civil Procedure, 1908, govern substitution of a deceased defendant’s legal representatives in an appeal.

The court applied the principle stated in Morasa Anjalah v. Kondragunte Venkateswarlu (Died) and Others, 1992 SCC OnLine AP 20, that an administration or partition suit does not abate as a whole merely because the legal representatives of a deceased co-sharer or co-owner have not been brought on record; each party is in the position of a plaintiff, and the deceased co-sharer’s heirs are necessary parties who may be brought on record under Order I Rule 10 CPC.

The applicants also relied on Gurnam Singh (Dead) Through Legal Representatives and Others v. Gurbachan Kaur (Dead) by Legal Representatives, (2017) 13 SCC 414.

The court accepted that Sonai had died and her legal representatives had not been substituted.

However, because the underlying proceeding was a partition suit, the omission did not cause the appeal to abate as a whole: each co-sharer stood in the position of a plaintiff, and the heirs of a deceased co-sharer remained necessary parties who could be brought on record under Order I Rule 10 CPC.

The applicants’ abatement-based challenge therefore did not warrant recall of the partition decree.

It dismissed the MCC as not surviving for further adjudication and vacated any subsisting interim order.