In a partition suit, the suit as a whole does not abate on the death of one of the plaintiffs. The suit as against the deceased plaintiff alone will stand abated, and the suit insofar as the surviving plaintiffs and the defendants is liable to be continued.

JUDGMENT :

Whether a partition suit will abate as a whole, on the death of one of the plaintiffs, if his legal heirs are not brought on record, is the question raised in this Original Petition. Defendants 1 and 2 in O.S.No.838/2018 of the Additional Munsiff Court, Kottayam, are the petitioners herein. They challenge Ext.P18 order, which found that the suit can continue insofar as the 1st plaintiff and the defendants are concerned, de hors the death of the 2nd plaintiff.

The order also allowed I.A.No.4/2022, an application preferred by the plaintiffs to call for a record from the Judicial First Class Magistrate Court-I, Kottayam.

2. Heard Sri.Vadakara V.V.N.Menon, learned counsel for the petitioners and Sri.S.Ranjit, the learned counsel for the respondents.

3. Learned counsel for the petitioners submit that, by the death of the 2nd plaintiff, the entire suit got abated, inasmuch as, the decree which can be passed in a partition suit is inseparable and indivisible. In this regard, learned counsel relied upon the following judgments of the Hon'ble Supreme Court:

(a) Budh Ram & Others v. Bansi & Others [2010 (11) SCC 476]

(b) Ram Sarup v. Munshi [AIR 1963 SC 553]

(c) Hemareddi v. Ramachandra Yallappa Hosmaniand Others [2019 (6) SCC 756]

As regards, allowing I.A.No.4/2022, learned counsel would point out that, no reason, whatsoever, has been stated by the learned Munsiff in allowing the same. On these premises, learned counsel seeks to set aside Ext.P18 order and treat the suit, O.S.No.838/2013, as abated.

4. The submission was seriously opposed by the learned counsel for the respondents, pointing out that the death of the 2nd plaintiff would not result in the entire suit getting abated. The right of plaintiffs 1 and 3 survives, in terms of Order XXII, Rule 3 of the C.P.C. Therefore, that part of Ext.P18 order, which permits continuance of the suit, does not suffer from any illegality or infirmity. As regards Ext.P12 I.A.No.4/2022, learned counsel for the respondents submits that the document called for is highly relevant, wherefore, the second part of Ext.P18 order, allowing I.A.No.4/2022, is also innocuous, warranting no interference from this Court.

5. Having heard the learned counsel appearing on both sides, this Court is of the opinion that the petitioners' objection to the first part of Ext.P18 is only to be dismissed. This Court cannot endorse the submission that a suit for partition of the family property by the sharers will stand abated on the death of one of the plaintiffs/sharers. As it is well settled, the conceptual difference between the plaintiff and the defendant will be reduced to a vanishing point in a partition suit, since both the plaintiffs and the defendants partakes the character of persons prosecuting the suit, ultimate relief being granted to each and every sharer, subject to their entitlement. This Court is not of the opinion that a decree to be passed in a partition suit, is indivisible and inseparable, so as to result in the abatement of the whole suit, on the death of one of the plaintiffs. Before concluding the point, this Court will refer to the judgments relied upon by the learned counsel for the petitioner in contending that the suit, as a whole, abates on the death of the one of the plaintiffs. The first decision is Budh Ram & Others v. Bansi & Others [2010 (11) SCC 476]. A perusal of the dictum laid down therein would only indicate that, the question whether non-substitution of the legal representatives of a party to the suit would abate the suit in toto, or only qua the deceased party, would essentially depend upon the facts, circumstances and reliefs sought for in the individual case. Paragraph 19 of the judgment is extracted herebelow.

“Therefore, the law on the issue stands crystallised to the effect that as to whether non-substitution of LRs of the defendants/respondents would abate the appeal in toto or only qua the deceased defendants/respondents, depend upon the facts and circumstances of an individ