A partition decree in favor of a deceased party is a nullity due to lack of proper representation, rendering subsequent appeals not maintainable.

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 VI^th 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 1^st Additional Subordinate Judge, Daltonganj in Partition Suit No.81 of 1973. The partition suit was dismissed.

3. The 2^nd 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 without first of all ascertaining the shares of the respective parties?

(ii) Whether only on inter se purchases and sales would infer partition amongst the co-sharers by metes and bounds?

4. The learned counsel for the appellants has submitted that defendant no.16 namely Fatima Bibi, who was admittedly a daughter in the family, had expired in 1994 as per the disclosure made by the respondents-plaintiffs themselves through interlocutory application filed in the present case, which reveals that she expired during the pendency of the 1^st appeal. He has submitted that the partition suit was dismissed and a share was allocated to her by the 1^st appellate court although she had expired prior to the judgement.

5. The learned counsel submits that the judgement passed is a nullity inasmuch as a relief has been granted in favour of a dead person. He has also submitted that since the judgement is a nullity, the second appeal cannot proceed, rather the second appeal itself was not maintainable.

6. He has also submitted that had this fact been brought to the notice of this Court at earlier point of time, the appeal may not have even been admitted by this Court. He submits that the impugned judgement being a nullity, the second appeal itself is not maintainable. The learned counsel has also submitted that otherwise also considering the nature of substantial questions of law framed in this case, the decree is not severable in nature.

7. He has also submitted that the legal heirs of defendant no.16 are also not on record to say that interest or estate was represented and the appeal would continue even in her absence.

8. The learned counsel for the respondents though has opposed the prayer, but has not disputed the fact that the partition suit was dismissed and the 1^st appellate court has granted a share to defendant no.16 though she had expired during the pendency of the 1^st appeal.

9. The learned counsel for the respondents has not been able to show that the judgement passed by the learned 1^st appellate court would not be a nullity inasmuch as the decree passed in favour of the deceased defendant no.16 was otherwise severable or she was otherwise represented in the suit through her legal heirs and successors at any stage.

10. The learned counsel for the appellants has referred to the order dated 21.06.2023 passed in SA No.134 of 2019 and submitted that appropriate order may be passed declaring that the judgement is a nullity and liberty be reserved with the plaintiffs-respondents to approach the learned 1^st appellate court to take appropriate steps as per law.

11. After hearing the learned counsel for the parties, it is an admitted fact that defendant no.16, to whom a share in the property was allocated by the learned 1^st appellate court, had expired during the pendency of the