Kiran Raj

The Supreme Court Division Bench of Justice Manoj Misra and Justice Ujjal Bhuyan on Monday (January 12, 2026) held that an appeal does not abate merely because one among several legal heirs of a deceased party was not substituted, where the deceased’s interest in the property is already represented by other heirs on record. The Court set aside the Madhya Pradesh High Court’s order treating an appeal against a decree for specific performance as abated on that basis and restored the connected first appeals for decision in accordance with law. The dispute arose from a purchaser’s suit seeking enforcement of an agreement to buy immovable property after the vendor sold the same property to third-party purchasers during the pendency of the suit.

The dispute arose from a civil suit seeking declaration, injunction, and subsequently, specific performance of an agreement to purchase immovable property. During the pendency of the suit, the original vendor transferred the property to third parties. The trial court decreed the suit for specific performance. Appeals were filed jointly by the original vendor and the subsequent purchasers.

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During the appellate proceedings, the original vendor died and was substituted by his four legal representatives. One of the legal representatives later died, and an application was moved to delete his name on the ground that the estate of the deceased vendor was already represented by the remaining legal heirs and the transferees pendente lite. The High Court initially declined to treat the appeal as abated and permitted impleadment of the deceased heir’s legal representatives as proforma parties.

Subsequently, the High Court revisited the issue, rejected applications seeking recall and setting aside of abatement, and dismissed the appeal as abated due to non-substitution of the deceased heir’s legal representatives within limitation. Consequentially, a connected appeal filed by the transferees for eviction was also dismissed. The appellants challenged both orders before the Supreme Court.

The Supreme Court examined whether the appeal had abated due to non-substitution of the legal representatives of one among several heirs of the deceased vendor. The Court noted that “it is thus not a case where deceased Kishorilal was totally unrepresented” and recorded that his estate was represented through other legal heirs as well as the transferees pendente lite.

The Court stated: “Before declaring a suit or proceeding to have abated on ground of non-substitution of the heirs/ legal representatives of a deceased party, the Court must examine whether the interest of the deceased party qua the subject matter of the proceeding is sufficiently represented by other parties already on record. If the interest of the deceased party is sufficiently represented by other parties already on record, and the decree/order eventually passed in the suit or proceeding would not be rendered non-executable for absence of that party, the suit or proceeding would not abate.”

On the nature of specific performance decrees, the Court recorded: “The law is thus settled that the vendor is a necessary party in a suit for specific performance of an agreement for sale, notwithstanding that vendor has transferred his interest in the subject matter of the agreement to a third party. Reason being that the transferee/ third party cannot be subjected to special covenants, if any, between the vendor and the plaintiff-purchaser.”

Applying those principles to the case, the Court observed: “Since three legal heirs of Kishorilal were already on record, besides the appellants No.2 and 3 in whom title in the property resided, the estate of Kishorilal was sufficiently represented and, therefore, in our view, the appeal did not abate on non-substitution of LRs of Murarilal as was rightly held earlier by the High Court vide order dated 03.05.2013. The aforesaid view is in conformity with the law laid down by this Court in Bhurey Khan and Mahabir Prasad.”

The Court stated that it drew a factual and legal distinction: “In our view, there is a clear distinction between non-substitution of the legal representatives/ legal heirs of a deceased party and non-substitution of one of the heirs of a deceased party. In the latter, if the interest of the deceased party is sufficiently represented by other heirs/ legal representatives on record, there will be no abatement.”

On the High Court revisiting its earlier stance, the Court observed: “Once the High Court, vide order dated 03.05.2013, had taken the view that appeal had not abated on non-substitution of heirs of Murarilal i.e., appellant No.1(2), as other heirs of Kishorlal were on record besides appellants 2 and 3, it was not open for the High Court to revisit the issue later, because such an exercise by the High Court was hit by principle of res judicata which applies with equal force to different stages of the same proceeding as it does to a separate subsequent proceeding.”

On the deletion order, the Court recorded: “The direction in the order dated 09.05.2011 to delete appellant No.1 is concerned, it was a pure clerical/ typographical error inasmuch as the prayer made was to delete appellant No.1(2) i.e., Murarilal from the array of parties as other LRs of Kishorilal sufficiently represented his interest. Such a mistake could be corrected at any stage… Therefore, the plaintiff-respondent cannot take advantage of the aforesaid mistake.”

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The Supreme Court directed that “the view of the High Court that the appeal had abated is erroneous and is liable to be set aside.” It ordered that “the impugned order(s) dated 12.09.2017 passed by the High Court in F.A. No.213 of 2000 and F.A. No.217 of 2000 are set aside. Both the aforesaid first appeals are restored to their original number on the file of the High Court and they shall be decided in accordance with the law. Pending applications, if any, in both the appeals shall stand disposed of.”

Advocates Representing the Parties

For the Petitioners: Mr. Puneet Jain, Sr. Adv. Ms. Pratibha Jain, AOR Mrs. Christi Jain, Adv. Ms. Akriti Sharma, Adv. Mr. Harsh Jain, Adv. Mr. Mann Arora, Adv. Mr. Om Sudhir Vidyarthi, Adv. Mr. Aditya Jain, Adv. Mr. Siddharth Jain, Adv. Mr. Yogit Kamat, Adv. Mr. Abrar Ahmed, Adv. Mr. Arjun Kanadi, Adv.
For the Respondents: Mr. Yatindra Singh, Sr. Adv. Mr. Prashant Shukla, Adv. Mrs. Anushree Shukla, Adv. Mr. Kartik Kumar, Adv. Ms. Ojasvi, Adv. M/S. Prashant Shukla Law Chambers, AOR

Case Title: Kishorilal (D) Through LRs & Ors. v. Gopal & Ors.
Neutral Citation: 2026 INSC 48
Civil Appeal Nos.: 172 of 2026 and 173 of 2026
Bench: Justice Manoj Misra, Justice Ujjal Bhuyan