Will an Appeal Abate Without Legal Heirs If the Deceased’s Interest Is Represented?

Procedural law often appears deceptively technical, yet its consequences can decisively shape substantive rights. One such doctrine is the abatement of proceedings on the death of a party under Order XXII of the Code of Civil Procedure, 1908. While the general rule requires substitution of legal representatives within the prescribed limitation period, courts have repeatedly been called upon to determine whether failure to implead every legal heir is fatal when the deceased’s interest continues to be adequately represented on record.

This issue assumes heightened significance in appeals arising from suits for specific performance, where the vendor is ordinarily a necessary party for the effective execution of the decree. The Supreme Court revisited this procedural dilemma in Kishorilal (Dead) Through LRs v. Gopal & Ors., decided on 12 January 2026, and clarified the distinction between technical abatement and substantial representation of the deceased’s estate.

Statutory Framework: Abatement under Order XXII CPC

Order XXII CPC governs the consequences of death, marriage, and insolvency of parties during the pendency of suits and appeals. Broadly:

• Rule 3 deals with death of a plaintiff or appellant.
• Rule 4 applies to death of a defendant or respondent.
• Rule 11 extends these provisions to appeals.

If a party dies and the right to sue survives, the legal representatives must be substituted within limitation; failing which, the suit or appeal abates by operation of law.

However, the CPC does not define when abatement is fatal and when it can be ignored due to adequate representation of the deceased’s estate. This gap has been filled by judicial interpretation.

Concept of “Sufficient Representation of Estate”

Indian jurisprudence has consistently recognised that abatement is not a mechanical consequence of non-substitution. The courts are required to examine whether:

1. The estate of the deceased is substantially represented on record; and
2. The final decree or order would remain executable and effective despite non-joinder of some heirs.

This principle was classically articulated in Mahabir Prasad v. Jage Ram and reaffirmed in Bhurey Khan v. Yaseen Khan, where the Supreme Court held that non-impleadment of some legal heirs does not result in abatement if the estate is otherwise fully represented.

Factual Background of Kishorilal v. Gopal

The dispute arose from Original Suit No. 5A of 1992, filed for declaration, injunction, and later specific performance of an agreement to sell immovable property. During pendency of the suit:

• The original vendor, Kishorilal, sold the property to Brajmohan and Manoj, who became transferees pendente lite.
• The suit was decreed in favour of the plaintiff.
• Kishorilal and the transferees jointly filed a first appeal.

During the pendency of the appeal:

• Kishorilal died, and all four of his legal heirs were substituted.
• One heir, Murarilal, subsequently died.
• His legal heirs were not substituted within limitation, though later impleaded as pro forma respondents.

The High Court ultimately held that the appeal had abated due to non-substitution of Murarilal’s heirs, leading to dismissal of connected appeals. This finding was challenged before the Supreme Court.

Issues Before the Supreme Court

The Court framed four central issues, the most significant being:

1. Whether an appeal abates for non-substitution of the legal heirs of one of the heirs of a deceased party.
2. Whether sufficient representation of the deceased’s interest prevents abatement.
3. Whether earlier judicial orders rejecting abatement operate as res judicata.
4. Whether impleadment of omitted heirs cures abatement in substance.

Vendor as a Necessary Party in Specific Performance Suits

A crucial argument raised by the respondents relied on settled law that the vendor is a necessary party in suits for specific performance, even if the property has been sold to a third party.

This principle traces its origin to Lala Durga Prasad v. Lala Deep Chand, where the Supreme Court held that:

• The proper decree directs the vendor to execute the sale deed.
• The subsequent purchaser merely joins to pass the title residing in him.

This view was reiterated in R.C. Chandiok and Dwarka Prasad Singh, where non-substitution of the vendor’s heirs led to abatement of the appeal.

However, the Supreme Court in Kishorilal carefully distinguished these authorities.

Distinction Between “No Representation” and “Partial Representation”

The Court drew a critical distinction between:

• Cases where the vendor’s estate is completely unrepresented, and
• Cases where some heirs remain on record and adequately represent the estate.

In Dwarka Prasad Singh, relied upon by the respondents, none of the vendor’s legal heirs were substituted, making execution of the decree legally impossible.

In contrast, in Kishorilal, the Court noted that:

• Three out of four heirs of the deceased vendor were already on record.
• The transferees lis pendens, in whom title resided, were also parties.
• The estate of Kishorilal was therefore substantially and effectively represented.

Thus, the case fell squarely within the doctrine laid down in Mahabir Prasad and Bhurey Khan.

Transferee Lis Pendens as Representative of Estate

The Court reaffirmed that a transferee pendente lite is not a necessary party to a suit for specific performance but can represent the estate of the deceased vendor as an intermeddler.

Such a transferee:

• Holds title subject to the decree under Section 52 of the Transfer of Property Act.
• Has a direct and substantial interest in prosecuting the appeal.
• Can validly defend or prosecute proceedings where the vendor’s interest is otherwise represented.

This reasoning aligns with earlier rulings in Mohammad Arif v. Allah Rabbul Alamin and K. Naina Mohamed v. A.M. Vasudevan Chettiar.

Res Judicata Between Stages of the Same Proceedings

An important procedural dimension addressed by the Court was whether the High Court could revisit the issue of abatement after having earlier rejected it.

The Supreme Court relied on Satyadhyan Ghosal v. Deorajin Debi, Y.B. Patil v. Y.L. Patil, and Bhanu Kumar Jain v. Archana Kumar to reiterate that:

The principle of res judicata applies not only to subsequent proceedings but also to different stages of the same proceeding.

Since the High Court had earlier, by reasoned orders, held that the appeal had not abated, it was procedurally barred from reopening the issue at a later stage.

Clerical Errors and Procedural Justice

The Court also dealt with an erroneous order that mistakenly deleted the name of the deceased vendor instead of one of his heirs. It held that:

• Such errors are clerical or typographical.
• Courts have inherent powers under Sections 151 and 152 CPC to correct them.
• Litigants cannot derive advantage from obvious procedural mistakes.

This reinforces the principle that procedural law is a handmaid of justice, not its mistress.

Final Holding of the Supreme Court

The Supreme Court conclusively held that:

• An appeal does not abate merely because all legal heirs of a deceased party are not substituted, provided the deceased’s interest is sufficiently represented.
• In the present case, the estate of the deceased vendor was adequately represented by surviving heirs and transferees.
• The High Court erred in dismissing the appeal as abated.
• Both appeals were restored for adjudication on merits.

Legal Position Emerging from the Judgment

The following principles emerge clearly:

1. Abatement is not automatic; courts must examine substantial representation.
2. Non-substitution of one of several legal heirs does not cause abatement if the estate is otherwise represented.
3. In specific performance suits, while the vendor is a necessary party, a complete absence of representation alone causes abatement.
4. Transferees lis pendens can represent the vendor’s estate as intermeddlers.
5. Res judicata applies between stages of the same proceedings.
6. Procedural rules must yield to substantive justice where no prejudice is caused.

Conclusion

The Supreme Court’s decision in Kishorilal v. Gopal decisively answers the question: an appeal will not abate merely because all legal heirs of a deceased party are not on record, if the deceased’s interest is otherwise sufficiently represented. The judgment harmonises procedural discipline with substantive justice and prevents technical defaults from extinguishing valuable rights.

By reaffirming that abatement is a matter of substance, not form, the Court has ensured that civil litigation remains focused on adjudication of rights rather than procedural pitfalls. This ruling will have enduring significance in appellate practice, particularly in property and specific performance litigation.

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