The Supreme Court has held that an appeal arising from a suit for specific performance does not abate upon the non-substitution of the legal representatives of one of the deceased heirs of the vendor, provided the estate of the deceased vendor is sufficiently represented by other surviving heirs and lis pendens transferees already on record.
A Bench comprising Justice Manoj Misra and Justice Ujjal Bhuyan set aside the order of the Madhya Pradesh High Court, which had dismissed a first appeal as abated. The Apex Court clarified that the principle of abatement applies differently when the deceased party is not totally unrepresented but is substantially represented by other parties on record.
Background of the Case
The appeals arose from a suit instituted in 1992 by the respondent, Gopal, against Kishorilal (since deceased) for specific performance of an agreement to purchase the suit property. During the pendency of the suit, Kishorilal sold the property to the appellants, Brajmohan and Manoj, via a sale deed dated April 20, 1992. The trial court decreed the suit in favor of the plaintiff on October 18, 2000.
Aggrieved by the decree, Kishorilal and the subsequent purchasers (Brajmohan and Manoj) jointly filed a First Appeal (F.A. No. 213 of 2000) before the Madhya Pradesh High Court. During the pendency of the appeal, Kishorilal passed away on December 17, 2005, and his four legal representatives—Suresh, Murarilal, Prakash, and Sitabai—were substituted.
Subsequently, Murarilal (one of the legal heirs) died on July 22, 2007. An application was filed to delete his name, contending that Kishorilal’s interest was represented by the remaining heirs and the purchasers. Through an order dated May 9, 2011, the High Court erroneously directed the deletion of “Appellant No. 1” (Kishorilal) instead of Murarilal. Later, the plaintiff-respondent sought dismissal of the appeal as abated due to the non-substitution of Murarilal’s heirs.
Despite an earlier order in 2013 observing that the appeal had not abated because the interest was represented, the High Court, by the impugned order dated September 12, 2017, dismissed the appeal as abated. Consequently, a connected appeal (F.A. No. 217 of 2000) filed by the purchasers in an eviction suit was also dismissed.
Arguments of the Parties
The appellants contended that Kishorilal’s interest in the subject matter had already been transferred to Brajmohan and Manoj, who were on record as appellants. They argued that upon Kishorilal’s death, his four heirs were substituted, and even after Murarilal’s death, the estate remained substantially represented by the three surviving heirs and the transferees. It was further argued that the High Court’s earlier order dated March 4, 2013, which negatived the plea of abatement, operated as res judicata.
The respondents argued that in a suit for specific performance, the vendor is a necessary party. Relying on the Supreme Court’s decision in Dwarka Prasad Singh v. Harikant Prasad Singh (1973), they submitted that the decree is indivisible, and if all legal heirs of the vendor are not brought on record, the appeal abates as a whole. They contended that abatement is by operation of law and cannot be cured by mere impleadment without condonation of delay.
Court’s Analysis
The Supreme Court examined two primary issues: whether the appeal abated due to the non-substitution of Murarilal’s heirs, and whether the High Court’s subsequent decision was barred by res judicata.
1. Vendor as a Necessary Party and Representation of Estate The Court affirmed the settled legal position that in a suit for specific performance, the vendor is a necessary party, even if the property has been transferred to a third party. Citing Lala Durga Prasad v. Lala Deep Chand (1953), the Court noted that the vendor must join in the execution of the sale deed to pass title and fulfill contractual obligations.
However, the Court distinguished the present case from Dwarka Prasad Singh, noting that this was not a case where the deceased vendor was “totally unrepresented.”
The Court observed:
“In the present case, on the death of Kishorilal (i.e., appellant No.1) all his LRs were substituted… though, later, one of them, namely, Murarilal… died. Since three legal heirs of Kishorilal were already on record, besides the appellants No.2 and 3 in whom title in the property resided, the estate of Kishorilal was sufficiently represented and, therefore, in our view, the appeal did not abate on non-substitution of LRs of Murarilal.”
The Bench relied on the principle laid down in Mahabir Prasad v. Jage Ram (1971) and Bhurey Khan v. Yaseen Khan (1995), holding that if the interest of a deceased party is sufficiently represented by other parties on record, the proceedings do not abate.
2. Principle of Res Judicata The Court emphasized that the principle of res judicata applies between two stages in the same litigation. The High Court, in its order dated May 3, 2013, had already allowed the impleadment of Murarilal’s heirs as proforma respondents, holding that the appeal had not abated.
The Supreme Court stated:
“Once the High Court, vide order dated 03.05.2013, had taken the view that appeal had not abated… it was not open for the High Court to revisit the issue later, because such an exercise by the High Court was hit by principle of res judicata which applies with equal force to different stages of the same proceeding.”
3. Correction of Typographical Error The Court further clarified that the High Court’s order dated May 9, 2011, directing the deletion of “Appellant No. 1” (Kishorilal), was a “pure clerical/typographical error” as Kishorilal was already dead and substituted. The intention was to delete Murarilal. The Court held that the respondents could not take advantage of such a mistake.
Decision
The Supreme Court concluded that the view of the High Court that the appeal had abated was erroneous. The Court held:
“The appeal had not abated on non-substitution of the heirs of Murarilal within time… The High Court had the discretion to allow impleadment of Murarilal’s heirs and for such impleadment, it was not required to condone the delay or to set aside abatement.”
Both appeals (F.A. No. 213 of 2000 and F.A. No. 217 of 2000) were restored to their original numbers on the file of the High Court to be decided in accordance with the law.
Case Details:
- Case Title: Kishorilal (D) Thr. LRs & Ors. v. Gopal & Ors.
- Case Number: Civil Appeal No. 172 of 2026 (@SLP (C) No. 36787 of 2017) with Civil Appeal No. 173 of 2026
- Coram: Justice Manoj Misra and Justice Ujjal Bhuyan
