The intricate machinery of civil litigation often throws up complex procedural puzzles, especially when the parties involved change mid-stream due to death. The concepts of "abatement" and "lis pendens" become critical, potentially deciding the fate of a case without ever touching its merits. A recent Supreme Court judgment, arising from a protracted battle over a property sale, offers a masterclass in untangling such procedural knots. This blog post delves into the Court's reasoning in Kishorilal (D) Thr. LRS & Ors. v. Gopal & Ors., clarifying when an appeal dies with a party and when it survives.
I. The Tangled Tale: A Property, Two Suits,
and Multiple Deaths
The legal saga began with Original
Suit No. 5A of 1992. Gopal (the respondent) sued Kishorilal for a declaration,
injunction, and later, specific performance of an agreement to purchase a
property. Crucially, while this suit was pending (lis pendens), Kishorilal sold
the very same property to Brajmohan and Manoj via a sale deed dated April 20,
1992.
The trial court decreed the suit
in Gopal's favour on October 18, 2000. Kishorilal, along with the purchasers
Brajmohan and Manoj (the appellants), jointly filed First Appeal No. 213 of
2000 before the High Court.
Here is where the procedural
complexities arose:
1. Death of the Original
Vendor: During the appeal, Kishorilal died (December 17, 2005). His four
legal heirs (LRs)—Suresh, Murarilal, Prakash, and Sitabai—were duly substituted
in his place.
2. Death of One Legal Heir:
One of these heirs, Murarilal, died on July 22, 2007.
3. Procedural Missteps:
The appellants filed an application to delete Murarilal's name, arguing
Kishorilal's interest was already represented by the other three LRs and the
purchasers (Brajmohan & Manoj). The High Court's order, dated May 9, 2011,
contained a typographical error, directing the deletion of "appellant
no.1" (Kishorilal, who was already dead and substituted) instead of
Murarilal.
4. The Abatement Challenge:
Gopal seized upon this, filing an application stating the appeal had abated due
to the non-substitution of Murarilal's own legal heirs within the limitation
period.
5. Conflicting Orders: The
High Court first rejected the abatement plea (March 4, 2013), noting
Kishorilal's estate was represented. It even allowed the impleadment of
Murarilal's heirs as proforma respondents (May 3, 2013). However, in a later
volte-face, by the impugned order dated September 12, 2017, it held the appeal had
abated and dismissed it.
A connected appeal, F.A. No. 217
of 2000, arose from a separate eviction suit filed by the purchasers (Brajmohan
& Manoj) against Gopal. Its fate was tied to the first appeal; its
dismissal followed automatically. The Supreme Court clubbed both appeals
together.
II. The Core Legal Duel: Abatement vs.
Sufficient Representation
The central issue was whether F.A.
No. 213 of 2000 abated in its entirety due to the non-substitution of
Murarilal's LRs within time.
The Respondent's (Gopal's)
Arguments:
1. Vendor is a Necessary
Party: Relying on landmark cases like Lala Durga Prasad and Dwarka Prasad,
they argued that in a specific performance suit, the original vendor is a
necessary party. The decree must direct the vendor to execute the sale deed,
with the subsequent purchaser merely joining to pass on the title. Therefore,
the vendor's legal representatives are indispensable.
2. Abatement is Automatic:
Abatement operates by law. Failure to substitute within limitation causes abatement
ipso facto; it doesn't require a court declaration.
3. Inseparable Decree: If
the appeal abates as against one legal heir of the vendor (Murarilal), it
abates as a whole. Continuing the appeal would risk inconsistent decrees.
4. Impleadment ≠ Substitution:
Allowing the impleadment of Murarilal's heirs later, without a formal
application to set aside abatement and condone delay, was legally
inconsequential. The delay of nearly 10 years was inexcusable.
The Appellants' (Kishorilal's
LRs & Purchasers) Arguments:
1. Estate Sufficiently
Represented: Kishorilal's interest was fully represented by: (a) his three
other surviving LRs on record, and (b) the purchasers, Brajmohan and Manoj,
who, as transferees lis pendens, could represent his estate as
"intermeddlers."
2. No Total
Non-Representation: This was not a case of the deceased vendor being wholly
unrepresented. Principles from cases like Bhurey Khan and Mahabir Prasad state
that if the estate is substantially represented by some LRs, the proceeding
does not abate merely because one heir is left out.
3. Res Judicata Applied:
The High Court's earlier orders (March 4, 2013 & May 3, 2013) had
conclusively held the appeal had not abated. This finding, in a later stage of
the same proceeding, was binding under the principle of res judicata.
4. Clerical Error: The
order deleting "Kishorilal" was a patent typographical error that
could be corrected under the CPC.
III. The Supreme Court's Analysis: Principles
Over Hyper-Technicality
Justice Manoj Misra, writing for
the Bench, allowed the appeals, restoring both matters to the High Court. The
Court's reasoning provides crucial clarity on procedural law.
1. Reconciling the Specific
Performance Imperative with Procedural Reality:
The Court acknowledged the
settled law from Lala Durga Prasad and Dwarka Prasad: in a specific performance
suit, the vendor is a necessary party because the decree must direct him to
execute the sale deed and fulfil any special covenants of the original
agreement. The subsequent transferee only joins to pass on the title.
However, the Court distinguished Dwarka
Prasad. In that case, the vendor's interest was not represented at all after
his death. Here, the situation was fundamentally different. Kishorilal's estate
was represented by:
a. Three of his four legal heirs
(Suresh, Prakash, Sitabai).
b. The purchasers, Brajmohan and
Manoj, in whom the title to the property resided (though subject to the
decree).
Thus, there was substantial
representation of the deceased vendor's estate.
2. The Crucial Distinction:
Non-Substitution vs. Partial Representation:
The Court drew a vital legal
distinction, affirming the principle in Mahabir Prasad and Bhurey Khan:
> "There is a clear
distinction between non-substitution of the legal representatives of a deceased
party and non-substitution of one of the heirs of a deceased party. In the
latter, if the interest of the deceased party is sufficiently represented by
other heirs/ legal representatives on record, there will be no abatement."
Since three LRs were actively
contesting the appeal, the absence of Murarilal's heirs did not render
Kishorilal's estate unrepresented. The appeal, therefore, did not abate.
3. Res Judicata in Subsequent
Stages of the Same Proceeding:
The Court strongly upheld the
principle that res judicata applies to different stages of the same litigation.
The High Court's earlier orders (2013) had expressly adjudicated the abatement
issue, holding the appeal had not abated. The High Court was not entitled to
revisit and contradict this finding in 2017. This procedural finality is
essential to prevent endless litigation on interim issues.
4. Nature of Lis Pendens
Transferee's Role:
The Court clarified the position
of Brajmohan and Manoj, the purchasers lis pendens:
1. Their purchase was not void
but subservient to the outcome of the pending suit (Section 52, Transfer of
Property Act).
2. They were not "necessary
parties" in the original suit but, having been impleaded and being
directly affected, they were proper parties.
3. More importantly, as parties
in possession of the property and claiming title derived from Kishorilal, they
could be considered to represent his estate for the purposes of continuing the
appeal.
5. Correcting Clerical Errors
& the Purpose of Impleadment:
The Court treated the erroneous
order deleting "Kishorilal" as a clerical/typographical mistake
correctable under Sections 151/152 of the CPC. It could not be used as a
technical trap.
Furthermore, since the Court
concluded there was no abatement, the subsequent impleadment of Murarilal's
heirs was rightly done under Order I Rule 10 CPC (adding parties), not under
Order XXII (substitution upon death). No question of condoning delay in setting
aside abatement arose.
IV. Key Takeaways for Lawyers and Litigants
1.Abatement is Not a
Mechanical Default: Courts will look at the substance of representation,
not just procedural checkboxes. If the deceased's interest is sufficiently and
effectively represented by other legal heirs or even interested transferees on
record, the proceeding may survive.
2.Specific Performance Has
Unique Party Requirements: While the vendor remains a necessary party, his
"representation" upon death can be composite. The presence of some
LRs along with the lis pendens transferee may satisfy the requirement of
representing his estate for the continuation of an appeal.
3.Res Judicata is a Powerful
Tool Within a Single Case: An order deciding an interlocutory issue (like
abatement) can become final for that stage of the proceeding. Parties cannot
reagitate it unless reviewing jurisdiction is invoked. This underscores the
importance of arguing such points comprehensively when first raised.
4.Distinction Between
Impleadment and Substitution: Order I Rule 10 (impleadment) is for adding
necessary or proper parties. Order XXII (substitution) is for bringing in LRs
of a deceased party. The correct provision must be applied based on whether the
proceeding has abated or not.
5.Justice-Oriented Approach
Prevails: The Supreme Court emphasized a pragmatic over a hyper-technical
approach. The core question was whether Kishorilal's estate had a voice in the
appeal. Finding that it did, through multiple channels, the Court prevented the
appeal from being scuttled on a procedural technicality, ensuring the
substantive dispute would be heard on merits.
Conclusion: Substance Triumphs Over Form
The Supreme Court's judgment in Kishorilal
(D) Thr. LRs & Ors. v. Gopal & Ors. is a significant restatement of
procedural principles in the context of property and specific performance
litigation. It reinforces that the doctrine of abatement, while strict, is not
to be used as a tactical weapon to secure a victory without a hearing on the
merits. By focusing on substantial representation and upholding inter-stage res
judicata, the Court has ensured that technical glitches and the unfortunate
circumstance of death do not automatically derail the course of justice. The
case now returns to the High Court for a decision on the actual merits of the
specific performance decree—which is where the focus always should have been.
Judgment Name: Kishorilal (D)
Thr. LRS & Ors. v. Gopal & Ors., Civil Appeal Nos. 172-173 of 2026 (@
SLP (C) Nos. 36787 of 2017 & 397 of 2018), Supreme Court of India, decided
on January 12, 2026.
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