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IN THE HIGH COURT OF JHARKHAND AT RANCHI
ANUBHA RAWAT CHOUDHARY
Rajak Mian @ Rajak Ahmed, son of late Md. Jan Mian – Appellant
Versus
Jamil Ahmad, sons of late Rahimuddin Mian – Respondent
| Table of Content |
|---|
| 1. nullity of judgment for deceased defendant (Para 2 , 3 , 4 , 5) |
| 2. arguments on maintainability of the appeal (Para 6 , 7 , 8 , 9) |
| 3. court's observation on representation of estate (Para 10 , 11 , 12) |
| 4. final order dismissing the appeal (Para 13 , 14 , 15) |
| 5. procedural orders and directions to trial court (Para 16 , 17 , 19 , 20 , 21 , 22) |
JUDGMENT :
ANUBHA RAWAT CHOUDHARY, J.
Heard the learned counsel appearing on behalf of the parties.
2. This second appeal has been filed against the judgement dated 09.08.1995 (decree signed on 16.08.1995) passed by learned VIth Additional District Judge, Palamau at Daltonganj in T.A. No.49 of 1985 whereby the appeal has been allowed and the judgement and decree passed by the learned trial court has been reversed. The trial court judgement is dated 28.05.1985 (decree singed on 08.06.1985) passed by learned 1st Additional Subordinate Judge, Daltonganj in Partition Suit No.81 of 1973. The partition suit was dismissed.
3. The 2nd appeal filed on behalf of defendant nos.1 to 14 has been admitted for final hearing vide order dated 26.07.1996 on the following substantial questions of law:
(i) Whether a decree of partition can be granted wit
A partition decree in favor of a deceased party is a nullity due to lack of proper representation, rendering subsequent appeals not maintainable.
In partition suits, the principle of transposition allows for the substitution of legal heirs even if some parties have died, provided the title is not in dispute, and a decree passed against decease....
In partition suits, the appeal abates entirely if any party's legal representatives are not substituted as required, rendering the appeal incompetent.
The central legal point established in the judgment is the principle that if the entire appeal abates, then the judgment delivered in such an appeal is a nullity.
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 survivin....
A Family Arrangement that excludes Class-I legal heirs is invalid, and all heirs must be consulted for a legally enforceable partition.
An appellant may withdraw an appeal before admission, and respondents cannot insist on continuity for share enhancement if no independent appeal is filed.
The main legal point established is that the suit for partition is maintainable despite the failure to prove an earlier oral partition in the manner known to law.
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