Non-Substitution of One Legal Heir Does Not Kill an Appeal: Supreme Court Declares High Court Erred in Applying Abatement

"Where the Deceased Party’s Estate Is Substantially Represented, There Can Be No Talk of Abatement" – On January 12, 2026, the Supreme Court of India overturning the Madhya Pradesh High Court’s dismissal of two appeals in a long-standing property dispute. The High Court had declared the appeals abated merely because one out of four legal heirs of a deceased party was not substituted. But the Supreme Court found this reasoning to be both legally flawed and contrary to established precedent.

The bench of Justice Manoj Misra and Justice Ujjal Bhuyan emphatically ruled that “the appeal had not abated on non-substitution of the heirs of Murarilal… the estate of Kishorilal was sufficiently represented”, and thus the High Court had committed a serious error of law in treating the proceedings as extinguished.

The dispute arose from a suit for specific performance filed in 1992, where the vendor, Kishorilal, sold the property during the pendency of the suit to Brajmohan and Manoj—both of whom joined him in filing the first appeal after the trial court passed a decree in favour of the original plaintiff, Gopal. Kishorilal died in 2005, and all four of his legal heirs were brought on record. However, when one heir, Murarilal, died in 2007, his heirs were not substituted within the limitation period.

The High Court, relying on this procedural lapse, dismissed the appeals as abated. But the Supreme Court noted that this interpretation disregarded both substance and settled legal doctrine.

“There Is a Distinction Between Non-Representation and Partial Non-Substitution” – Court Reaffirms Mahabir Prasad and Bhurey Khan

The Supreme Court drew a clear line between total failure to substitute legal heirs and cases where some heirs are already on record, holding that such substantial representation defeats the plea of abatement.

It ruled:
“Where the estate of a deceased party is substantially and sufficiently represented by other legal heirs already on record, appeal does not abate merely due to non-substitution of one heir.”

Relying on Mahabir Prasad v. Jage Ram and Bhurey Khan v. Yaseen Khan, the Court explained that what matters is whether the estate is effectively represented, not whether every heir has been formally substituted.

It also distinguished its earlier ruling in Dwarka Prasad Singh v. Harikant Prasad Singh, stating that “Dwarka Prasad is distinguishable on facts… because in that case the vendor’s interest was not represented at all. Here, three out of four legal heirs were already on record, along with the lis pendens transferees.”

“Typographical Error Cannot Be Weaponised” – Supreme Court Refuses to Let Procedural Mistake Defeat Substantive Rights

The judgment also exposed a clerical blunder that the High Court failed to correct. An order dated 09.05.2011 mistakenly recorded the deletion of Kishorilal, when in fact the application was to delete his son, Murarilal, who had died. The High Court’s subsequent reliance on this mistake to declare the appeal abated drew a sharp rebuke from the top court.

Calling the error “a pure clerical/ typographical mistake”, the Court held:

“Such a mistake could be corrected at any stage under Sections 151 and 152 of CPC. The plaintiff-respondent cannot take advantage of the Court’s inadvertent error.”

“Once the High Court Declared the Appeal Alive, It Could Not Kill It Later” – Res Judicata Applies Within the Same Case

Crucially, the Court invoked the doctrine of res judicata—not between separate proceedings, but at different stages of the same case. The High Court had earlier, in 2013, ruled that the appeal had not abated and had even permitted the impleadment of Murarilal’s heirs. But later, in 2017, it reversed itself without legal basis.

The Supreme Court observed:
“Once the High Court had held, in 2013, that the appeal had not abated… it was not open for it to revisit the issue. Such an exercise was hit by the principle of res judicata.”

Citing Satyadhyan Ghosal and Bhanu Kumar Jain, the bench ruled that courts must maintain consistency in the same litigation, particularly when the prior view had already attained finality.

“Doctrine of Lis Pendens Does Not Render the Transferee a Nullity – He May Represent the Estate as Intermeddler”

The judgment also reinforces the nuanced understanding of Section 52 of the Transfer of Property Act. While the vendor remains a necessary party in a suit for specific performance, the Court affirmed that a lis pendens transferee can represent the estate as an intermeddler if title to the property has already passed to him—albeit subordinate to the decree.

“Though a transferee lis pendens is not a necessary party to a suit for specific performance, he may pursue the appeal as an intermeddler of the estate of the vendor,” the Court said, aligning with precedents such as Mohammad Arif v. Allah Rabbul Alamin.

Appeals Revived: Matter Restored for Merits

In its concluding direction, the Court allowed both Civil Appeals, set aside the impugned orders of 12.09.2017, and restored the original First Appeals to the High Court's file.

“The view of the High Court that the appeal had abated is erroneous… Both appeals are restored to their original number and shall be decided in accordance with law,” the Court directed.

Date of Decision: January 12, 2026