In a partition suit, the non-impleadment of minors as parties does not render the proceedings void, as their interests can be represented by their natural guardian. The court can also direct that their share be considered while preparing the final decree, ensuring substantial justice for all parties involved.

1. This is a defendants second appeal under Sec. 100 of the Code of Civil Procedure (for short the Code) in a suit for declaration that ex parte decree dated 17-2-1961 passed in Partition Suit No. 38 of 1960 in the Court of Subordinate Judge, Gaya is illegal and without jurisdiction and also for restraining defendant No. 1 from taking further steps in pursuance of the ex parte decree.

2. The plaintiffs have filed the suit with the averments that there was an earlier suit No. 38 of 1960 filed by the present defendant Smt. Anandi Singh in the Court of Subordinate Judge III, Gaya. Lakshman Singh was also made party to the suit, whereas other sons namely, Mahendra Singh and Upendra Singh (the respondents 1 and 2), who (Illegible) minors, were not parties and a preliminary decree obtained on 17th February, 1961 was illegal and fraudulent.

3. The suit was contested by the defendant appellant refuting the averments made in the plaint and alleging that Sakaldip Singh, was the natural guardian of minors Mahendra Singh and Upendra Singh, who were not made parties to the suit. But as the natural guardian Sakaldip Singh was a party, hence even though minors were not made parties but that was no prejudice. Lakshman Singh, the major brother of minors Mahendra Singh and Upendra Singh was already party. A preliminary decree was obtained and that wins legal and of no prejudice to minors or any body else. The claim of minors or others could be gone into while preparing final decree. The suit was correctly decreed. No relief can be granted in the present suit.

4. The trial Court dismissed the suit. Against that decree Mahendra Singh and Upendra Singh, the minor sons of Sakaldip Singh filed an appeal before lower appellate Court and the said appeal was allowed. Against that decree the present Second appeal has been filed by the defendant-appellant Smt. Anandi Devi.

5. Learned counsel for the appellant urged that one Rajendra Singh respondent in the First Appeal was dead and his heirs were not brought on the record. Even though substitution application was filed by the appellants there, but no order was passed. Name of deceased Rajendra Singh continued in the decree of lower appellate Court. The decree of the lower appellate Court was in favour of dead person, hence it was a nullity. It was next urged that the interest of Mahendra Singh and Upendra Singh, minors was represented by their father and natural guardian Sakaldip Singh who was a party in the earlier suit for partition. Consequently non-impleadment of minors was of no consequence. The lower appellate Court erred in allowing the appeal.

6. Learned counsel for the respondents; on the other hand, refuted the submissions of the learned counsel for the appellant and urged that minor sons namely, Mahendra Singh and Upendra Singh, who were plaintiffs in the present suit, were co-sharers and they were entitled to their legitimate share. In their absence earlier suit could not have been effectively disposed of and by oblique motive these minors were not made parties even though their father Sakaldip Singh was made a party. After the death of Rajendra Singh, a substitution application was filed by the plaintiffs-respondents, that remained pending without any order, hence there is no question of abatement.

7. For the mistake of the Court no party would suffer. In any case, while preparing a final decree separate share would be allotted to all, The interest of every co-sharer would be represented. He leaned heavily on Rajeshwar Singh V/s. Rajendra Singh, 1992 (1) PLJR 480 : (AIR 1992 Pat 125). It was further contended that the appellant ought to have followed the procedure under Chapter VI, Rule 4 of the Patna High Court Rule. But appellant did not follow the procedure.

8. Having scrutinised the submissions of the learned counsel for the parties, the questions for determination are whether the present appeal abates on account of death of Rajendra Singh, one of the parties to the appeal before