Holding

The right to sue in a partition suit survives the death of the sole plaintiff and may be exercised by the legal representative, and a suit dismissed as withdrawn on account of fraud must be restored, with no error in the High Court’s decision.

Summary

The father of the respondent filed a partition suit in 1955 which was decreed, but after a series of appeals the suit was dismissed as withdrawn through applications that were later alleged to be forged. After the father's death, the daughter, as his legal representative, sought restoration of the suit, claiming that the right to sue survived under the Hindu Succession Act and that fraud had tainted the withdrawal. The High Court held that the withdrawal was fraudulent, restored the appeal against the Letters Patent Appeal, and directed criminal proceedings against the advocates involved. The trial court subsequently restored the partition suit, a decision upheld by this Court, which found no irregularity in the High Court’s dismissal of the appellant’s revision petition. The Court affirmed that a sole plaintiff’s right to sue survives his death and may be exercised by his legal representative, and that the suit must be restored when withdrawn by fraud.

Issues considered

The right to sue in a partition suit survives the death of a sole plaintiff under the Hindu Succession Act.
Whether the legal representative of the deceased can restore a suit dismissed as withdrawn on grounds of fraud.
Whether the trial court erred in restoring the suit despite procedural irregularities.
Whether the High Court’s dismissal of the appellant’s revision petition under Section 115 CPC was justified.

Legislation cited

Code of Civil Procedure, 1908s. Order IX Rule 9, s. Order XXIII Rule 1, s. Order XXII Rule 3, s. Section 115, s. Section 151
Hindu Succession Act, 1956s. 6, s. 8

Subjects

partition suitrestoration of suitright to sueHindu Succession Actfraudwithdrawal of suitlegal representativeCivil Procedurejoint propertyappellate jurisdiction

Judgment

. ;
(2009) 16 (ADDL.) S.C.R. 605

DWARIKA PRASAD A
v.
NIRMALA AND ORS.
(Civil Appeal No. 8407 of 2009)

DECEMBER 17, 2009
B
[B. SUDERSHAN REDDY AND J.M. PANCHAL, JJ.]

Suit: Restoration of suit - Suit for partition of joint
properties filed by deceased father- Dismissed as withdrawn
- Right of plaintiff's daughter to restore the suit after death of C
plaintiff - Held: Daughter and legal representative are entitled
to continue the suit in view of the provisions of Hindu
Succession Act - Only when right to sue is personal to
deceased, same would not survive for benefit of his legal
representatives - As per record she came to know later on D
that.fraud was committed while getting partition suit dismissed
as withdrawn - Hence, she was entitled to file application for
restoration of the suit - Hindu Succession Act, 1956 - s.6 -
Code of Civil Procedure, 1908 - 0.22 r.3.
Partition suit - Withdrawal of - Permissibility - Held: In E
a suit for partition of joint properties every defendant is also
in the capacity of the plaintiff and is entitled to decree in his
favour, if it is established that he has share in the properties
- On facts, suit for partition of the joint properties, dismissed
as withdrawn without notice to another brother, who was also F
entitled to share in the properties - Suit directed to be
restored - Suit - Code of Civil Procedure, 1908 - 0.23 r.1.
The father of respondent no.1 filed suit for partition
of joint properties. The suit was decreed. In first appeal, G
'r High Court set aside decree and remanded matter to trial
court for fresh decision. Against order of remand, father
of respondent no. 1 filed LPA. On 24.2.1997, an
application for withdrawal of LPA was filed. The LPA was
dismissed as withdrawn on the same day. On 28.2.1997,
605 H
606 SUPREME COURT REPORTS (2009] 16 (ADOL.) S.C.R.
t •
A another application was filed for withdrawal of partition
suit. The suit was dismissed as withdrawn on same day.
On 11.8.1998, father of respondent no.1 expired.
Respondent no.1 filed application for recalling the order
dated 24.2.1997 on the ground that the application of
B withdrawal did not bear signature of her father and her
father's signatures were forged. It was mentioned in the
application that one J.P. Sharma, advocate, had noted his ,. .
appearance on behalf of her father in partition suit
subsequently without seeking no objection certificate
from the previous counsel, who had filed the plaint, and
c thereafter filed application for withdrawal of LPA, which
was illegal and, therefore, the order disposing of the LPA
as withdrawn should be recalled.
High Court allowed the application for recalling the
D order dated 24.2.1997 observing that fraud was played ' .._
upon the Court and directed the Registrar of the Court
to file a complaint against advocate J.P. Sharma and also
against advocate who had identified the signature of
father of the respondent No. 1. The High Court also
E directed the Registrar to initiate criminal proceedings
against the appellant who was supposed to be the
beneficiary of the act of forging for initiating criminal
proceedings by filing a complaint. In SLP, said order was
upheld.
F After hearing LPA, it was dismissed by High Court as
not maintainable. SLP thereagainst was also dismissed.
Thus order of remand became final.
The trial court allowed the application of respondent
no.1 for restoration of partition suit. High Court upheld
G
the same. Hence the present appeal.
Dismissing the appeal, the Court
HELD: 1. It is well settled that where the right to sue
is personal to the deceased, the same does not survive
H
DWARIKA PRASAD v. NIRMALA AND ORS . 607
.... t
for the benefit of his legal representatives. There is no A
manner of doubt that late father of the respondent No. 1
had filed suit for partition of the joint properties. On his
death right to sue survived and the respondent No. 1
being his daughter and legal representative was entitled
to continue the suit in view of the provisions of Hindu B
Succession Act. The deceased who was a male Hindu,
-.\
claimed interest in the joint properties which were subject
matter of suit for partition. The record does not indicate
that he had executed a Will though the appellant claimed
that he had executed a Will in favour of 'V'. The said 'V' c
did not apply for being impleaded as a party to the
proceedings nor claimed interest in the properties of the
deceased. He, having died intestate, his share in the joint
properties would devolve by intestate succession as
provided by Section 6 of the Hindu Succession Act, 1956.
;• f D
j Section 8 of the said Act which deals with general rules
of succession in the case of males, provides that the
property of a male Hindu dying intestate shall devolve
firstly upon the heirs, being relatives specified in Class I
- of the Schedule to the Act. A daughter is specified as one
of the relatives in Class I of the Schedule. Therefore, there E
is no manner of doubt that the share of the deceased
plaintiff in the suit properties would devolve upon her, if
suit for partition is decreed. Rule 3 of Order XXll CPC
stipulates that when a sole plaintiff dies and the right to
sue survives, the Court on an application made in that F
behalf, should cause the legal representative of the
deceased plaintiff to be made a party and shall proceed
with the suit. Thus, the respondent No.1 was entitled to
be substituted in place of her deceased father. The
....
- t
record shows that she came to know later on that fraud G
had been committed while getting partition suit dismissed
as withdrawn. Hence, she was entitled to file application
for restoration of the suit. [Para 7] [614-A-H; 615-A]
2. The contention that having regard to the
H
608 SUPREME COURT REPORTS [2009] 16 (ADDL.) S C.R.
~ .
A circumstances emerging from the record of the case the
trial court should not have restored the partition suit on
file, is devoid of merits. What is important to notice is that
on similar grounds, namely, fraud committed while
getting LPA dismissed as withdrawn, the said LPA was
B restored on file. It was held by the High Court that fraud
was played upon the court while getting the LPA
disposed of as withdrawn and, therefore, directions were ~

given to the Registrar of the High Court to file criminal
proceedings against two advocates and the appellant.
c The appellant never challenged the said order at all. The
whole order of restoration of LPA was challenged before
this Court, by two advocates, but the said challenge failed
when SLP filed by them was dismissed. The trial Court,
while deciding the application for restoration of suit,
D could not have afforded to ignore the findings recorded
by the High Court while setting aside the order
dismissing the LPA as withdrawn and the two orders
passed by this Court. Once it was noticed by the trial
' -, -
court that LPA was restored on file on the ground that
signature of late father of the respondent No. 1 was
E forged, it was duty bound to follow the reasons given by
-
the High Court for restoring LPA on file. [Para 8) [615-B-
G]
3. The trial court restored the suit, which was got
dismissed as withdrawn by fraud. The argument that the
F
trial court had acted with material irregularity while
restoring the suit when two applications which were
dismissed for default were also restored and, therefore,
the Revision filed by the appellant should have been
allowed, is merely stated to be rejected. The supervisory
G jurisdiction of the High Court as incorporated in Section
115 CPC is intended to ensure that justice is done
-1
--.
between the parties. The appellant who was beneficiary
of fraud played upon the trial Court and the High Court
would not be entitled to invoke discretionary jurisdiction
H
DWARIKA PRASAD v. NIRMALA AND ORS. 609
~ Ai
of High Court under Section 115 CPC. Further in view of A
prayer made in the application, all the applications filed
by the respon~ent No.1 were taken up for hearing
together. [Para 9) (616-B-D]
4. The record of the case show that the suit, which
was filed in the year 1955 for partition of the joint B
properties, was permitted to be withdrawn and dismissed
y _.
on the basis of so called application for withdrawal filed
by father of the respondent No. 1. Before dismissing the
suit as withdrawn, trial court had not issued any notice
to the deceased plaintiff or his heirs more particularly c
when the advocate, who filed the suit for partition in the
year 1955, was substituted by another advocate without
obtaining consent from the advocate who was earlier
representing the deceased. No attempt was made by the
,.,.. ? trial court to verify as to what prompted the original D
plaintiff to withdraw the suit, more particularly, when
order of the High Court remanding the matter to the trial
court for fresh decision was subject-matter of LPA. On the
facts of the case, a grave error was committed by the trial
court by dismissing the suit for partition as withdrawn. E
In terms of order XXlll Rule 1 CPC, it is the privilege of
the plaintiff alone to withdraw the plaint at any stage of
the proceedings and the appellant being only one of the
"· defendants having played the fraud in getting the suit
dismissed as withdrawn, has no locus to object to the F
restoration of the suit. The late father of the respondent
No. 1 did not claim any exclusive title to the properties in
himself. He claimed partition of the properties as one of
the joint owners. Initially, the suit was not only decreed
in his favour but also in favour of the third brother. It is
G
,.
t well settled that in a suit for partition of the joint
properties every defendant is also in the capacity of the
plaintiff and would be entitled to decree in his favour, if it
is established that he ,has the share in the properties.
Therefore, the suit for partition of the joint properties, filed
by the ~ate ·father of respondent No. 1, could not have H
I
610 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.

C/" ,
A been dismissed as withdrawn without notice to another
brother, who was also entitled to share in the properties.
Taking over all view of the matter, no illegality or
irregularity is committed by the High Court in dismissing
the Revision Petition filed by the appellant. Therefore, no
B case is made out by the appellant to interfere with the
order passed by the High Court. [Para 10] [616-F-H; 617-
A-G]
>-
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8407 of 2009.
c From the Judgment and Order dated 29.3.2007 of the High
Court of Madhya Pradesh, Jabalpur, Bench at Gwalior in Civil
Revision No. 122 of 2005.
Anoop G. Chaudhari, June Chaudhari, Prabhat Kumar Rai,
Saud S.A. and Shakil Ahmed Syed for the Appellant.
D \ ~~

Sunil Gupta, T.N. Singh, K.K. Mohan and V.K. Singh for
the Respondents.
The Judgment of the Court was delivered by
J.M. PANCHAL, J. 1. Leave granted.
E
2. This appeal, by special leave, is directed against
judgment dated March 29, 2007 rendered by the High Court
of Madhya Pradesh, Jabalpur, Bench at Gwalior in Civil
Revision No. 122 of 2005, by which order dated May 5, 2005,
passed by the learned First Additional District Judge, Gwalior
F in MJC No. 3 of 2004 allowing the application filed by the
respondent No. 1 under Order IX Rule 9 read with Section 151
of the Code of Civil Procedure is confirmed and order dated
December 16, 2003 in MJC No.35 of 2001 (new number 29
of 2003) dismissing the said case for default as well as order
G dated August 23, 2001 dismissing MJC No. 25 of 1998 for
default are set aside and Civil Suit No.3A of 1996, which was
dismissed as withdrawn on February 28, 1997, is restored.
3. The relevant facts emerging from the record of the case
are as under:
H
DWARIKA PRASAD v. NIRMALA AND ORS. 611
v 1 [J.M. PANCHAL, J.]

Late Mr. Shankar Lal, who was father of the respondent A
No. 1, filed Civil Suit No. 11 of 1955 for partition of the joint
properties. The said suit was decreed on July 10, 1978.
Feeling aggrieved, the appellant preferred First Appeal No. 60
of 1978 before the High Court. The learned single Judge of the
High Court set aside the decree passed by the trial court and B
remanded the matter to the trial court for fresh decision vide
r ~ order dated September 30, 1991. Against the order of remand,
LPA No. 32 of 1991 was filed by father of the respondent No.1.
On February 24, 1997 an application was filed by late Mr.
Shankar Lal who was father of the respondent No.1 for c
withdrawal of LPA No.32 of 1991. The LPA was dismissed as
withdrawn on the same date, i.e., February 24, 1997. In the year
1996 Civil Suit No. 11 of 1955 filed for partition of the joint
properties was given new number as 3A of 1996. On February
./
' 28, 1997 another application was filed for withdrawal of Civil
Suit No. 3A of 1996 by the father of the respondent No. 1. In
D
view of the contents of the said application the Civil Suit was
also dismissed as withdrawn on the same date, i.e., on
February 28, 1997. On August 11, 1998, father of the
respondent No. 1 expired. The respondent No.1 filed an
application on September 2, 1998 for recalling the order dated E
February 24, 1997, passed in LPA No. 32of1991. There was
'( . delay in filing the application seeking recall of order dated
February 24, 1997. Therefore, another application was filed for
condonation of delay. The respondent No.1 alleged in her
application that the application dated February 24, 1997, F
purportedly filed by her late father, for withdrawal of Letters
Patent Appeal, in fact did not bear the signature of her father
and, thus, signature of her father was forged. It was mentioned
in the application that Mr. J.P. Sharma, advocate, had noted
his appearance on behalf of her father in Civil Suit No. 3A of G
1996 subsequently without seeking no objection certificate from
the previous counsel, who had filed the plaint, and thereafter
filed application for withdrawal of LPA, which was illegal and,
therefore, the order dated February 24, 1997 disposing of the
H
612 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R
f '

A LPA as withdrawn should be recalled. The High Court heard
the learned counsel for the parties and by order dated January
10, 2005 condoned the delay in filing the application seeking
recall of order dated February 24, 1998 by which the LPA 32
of 1991 was dismissed as withdrawn and allowed the
8 application of respondent No. 1 for recalling order dated
February 24, 1997. While allowing the application filed by
~
respondent No. 1 the High Court observed that a fraud was
played upon the Court and directed the Registrar of the Court
to file a complaint against Advocate Mr. J.P. Sharma and also
c against Advocate Mr. S.C. Goyal, who had identified the
signature of late father of the respondent No. 1. The High Court
also directed the Registrar to initiate criminal proceedings
against the present appellant who was supposed to be the
beneficiary of the act of forging for initiating criminal
proceedings by filing a complaint. ~ .......
D
4. The two advocates, i.e., Mr. J.P. Sharma and Mr. S.C.
Goyal challenged the order dated January 10, 2005 directing
the Registrar of the High Court to file a complaint against them
by filing Special Leave Petition No. 1546 of 2005 before this
E Court. The said Special Leave Petition was dismissed on April
15, 2005 by this Court in the following terms: -
"Permission to file SLP is granted. We see no reason to
interfere. The Special Leave Petition is dismissed save
'
and except we clarify that the observations of the High
F Court shall not be taken into consideration in any
proceedings."
Thus, the direction given by the High Court to initiate criminal
proceedings against Mr. J.P. Sharma and Mr. S.C. Goyal was
upheld.
G
5. LPA No. 32 of 1991 was, therefore, posted for hearing
on merits before the High Court. The High Court, by judgment
dated August 17, 2005, dismissed the said appeal holding that
the LPA was not maintainable. As the Division Bench of the
H
DWARIKA PRASAD v. NIRMALA AND ORS. 613
.. ~
[J.M. PANCHAL, J.]
High Court held that the LPA was not maintainable, the A
respondent No.1 filed Special Leave Petition No.24597 of 2005
in this Court challenging the validity of the judgment dated
September 30, 1991, rendered by the learned Single Judge of
the High Court in First Appeal No. 60 of 1978 remanding the
matter to the trial court for fresh decision. This Court, vide order B

. ~
dated November 21, 2005, condoned the delay caused in filing
the S.L.P. and dismissed the Special Leave Petition. This Court
also directed expeditious disposal of the suit. Thus order of
remand dated September 30, 19J1 was upheld by this Court.
6. The respondent No. 1 had filed an application on c
September 17, 1998 for restoration of Civil Suit No. 3A of 1996,
which was dismissed as withdrawn on 6 February 28, 1997.
On August 23, 2001 the said application for restoration was
dismissed for default. Therefore, the respondent No. 1 filed an
/'
., application for setting aside the order dated August 23, 2001 D
and for restoration of the application seeking restoration of the
Civil Suit No. 3A of 1996. The subsequent application was also
dismissed for default on December 16, 2003. The respondent
No. 1, therefore, filed another application on February 10, 2004
under Order IX Rule 9 read with Section 151 of the Code of E
Civil Procedure for setting aside the order dated December 16,
2003. On January 18, 2005 the respondent No. 1 filed an
~. application for restoration of Civil Suit No. 3A of 1996
contending that by order dated January 10, 2005 the Division
Bench of the High Court has held that signature of late Mr. F
Shankar Lal was forged when application for withdrawal of LPA
was presented before the Court and, therefore, in view of finding
of the High Court, the order dismissing the suit as withdrawn
should also be set aside. The trial court by order dated May 5,
2005 allowed the application of the respondent No. 1 for G
1'- restoration of Civil Suit No. 3A of 1996. The appellant,
therefore, filed Civil Revision No. 122 of 2005 before the High
Court. The High Court of Madhya Pradesh, Jabalpur, Bench at
Gwalior dismissed the same by judgment dated March 29,
2007 giving rise to the instant appeal.
H
614 SUPREME COURT REPORTS (2009) 16 (ADDL.) S.C.R.
t •

A 7. This Court has heard the learned counsel for the parties
at length and considered the record of the case. The argument
that the respondent No. 1 was not entitled to file application for
restoration of the suit filed by her late father, as right to sue did :::
not survive in favour of the respondent No. 1 has no merit. It is
B well settled that where the right to sue is personal to the
deceased, the same does not survive for the benefit of his legal
representatives. There is no manner of doubt that late father of }> •
the respondent No. 1 had filed suit for partition of the joint
properties. On his death right to sue survived and the
c respondent No. 1 being his daughter and legal representative
was entitled to continue the suit in view of the provisions of
Hindu Succession Act. The deceased who was a male Hindu,
claimed interest in the joint properties which are subject matter
of suit for partition. The record does not indicate that he had
executed a Will though the appellant claimed that he had
D
executed a Will in favour of Vijai Kumar. It may be mentioned
\ ""''
that the said Vijai Kumar has not applied for being impleaded
as a party to the proceedings nor claimed interest in the
properties of the deceased. He, having died intestate, his share
in the joint properties shall devolve by intestate succession as
E provided by Section 6 of the Hindu Succession Act, 1956.
Section 8 of the said Act which deals with general rules of
succession in the case of males, inter alia, provides that the ,.,
property of a male Hindu dying intestate shall devolve firstly
upon the heirs, being relatives specified in Class I of the
F Schedule to the Act. A daughter is specified as one of the
relatives in Class I of the Schedule. Therefore, there is no
manner of doubt that the share of the deceased plaintiff in the
suit properties would devolve upon her, if suit for partition is
decreed. Rule 3 of Order XXll CPC, inter alia, stipulates that
G when a sole plaintiff dies and the right to sue survives, the Court .,,
on an application made in that behalf, should cause the legal
representative of the deceased plaintiff to be made a party and
shall proceed with the suit. Thus, the respondent No.1 was
entitled to be substituted in place of her deceased father. The
H record shows that she came to know later on that fraud had
DWARIKA PRASAD v. NIRMALA AND ORS. 615
. ~
[J.M. PANCHAL, J.j
been committed while getting Civil Suit No. 3A of 1996 A
dismissed as withdrawn. Hence, she was entitled to file
application for restoration of the suit. Thus, it is not correct to
argue that the respondent No. 1 was not entitled to file
application for restoration of the suit filed by her father for
partition of the joint properties. B
8. The contention that having regard to the circumstances
.. ~ emerging from the record of the case the trial court should not
have restored the Civil Suit No. 3A of 1996 on file, is devoid
of merits. What is important to notice is that on similar grounds,
namely, fraud committed while getting LPA No. 32 of 1991 c
dismiss.ed as withdrawn, the said LPA was restored on file. As
mentioned earlier it was held by the High Court that fraud was
played upon the court while getting the LPA disposed of as
withdrawn and, therefore, directions were given to the Registrar
A ~ of the High Court to file criminal proceedings against two D
advocates and the appellant. The appellant never challenged
the said order at all. The whole order of restoration of LPA was
challenged before this Court, by two advocates, but the said
challenge failed When SLP No.1546 of 2005 filed by them was
dismissed by this Court on April 15, 2005. Further this Court E
by order dated November 11, 2005 passed in SLP No.24597
of 2008 expedited the trial at the time of upholding the order
of remand. The Trial Court, while deciding the application for
"" restoration of suit, could not have afforded to ignore the findings
recorded by the High Court while setting aside the order F
dismissing the LPA No. 32 of 1991 as withdrawn and the two
brders passed by this Court. Once it was noticed by the trial
court that LPA No. 32 of 1991 was restored on file on the
ground that signature of late father of the respondent No. 1 was
forged, it was duty bound to follow the reasons given by the High
G
~
Court for restoring LPA No. 32 of 1991 on file. This Court
notices that in MJC No. 3 of 2004 the respondent No. 1 had
prayed for setting aside the order dated December 16, 2003
by which MJC No. 29 of 2003 was dismissed, but the learned
Judge of trial court while setting aside the order dated
December 16, 2003 also restored MJC No. 25 of 1998 H
616 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R

t •
A because an application was filed praying to decide all the
MJCs together.

9. By restoration of MJC No. 25 of 1998 and MJC No. 35
of 1998 (29 of 2003), no substantive right of the appellant is
decided by the trial court. What is done is to restore the suit,
B
which was got dismissed as withdrawn by fraud. The argument
that the Trial Court had acted with material irregularity while
restoring the suit when two applications which were dismissed > '
for default were also restored and, therefore, the Revision filed
by the appellant should have been allowed, is merely stated to
c be rejected. The supervisory jurisdiction of the High Court as
incorporated in Section 115 of the Code of Civil Procedure is
intended to ensure that justice is done between the parties. The
appellant who was beneficiary of fraud played upon the Trial
Court and the High Court would not be entitled to invoke
D discretionary jurisdiction of High Court under Section 115 CPC. ~
<
Further in view of prayer made in the application, all the
applications filed by the respondent No.1 were taken up for
hearing together. Under the circumstances, this Court is of the
firm opinion that the High Court was justified in not interfering
E with the order by which MJC No. 25 of 1998 and MJC No. 35
of 1998 were also restored while allowing MJC No. 3 of 2004
filed by the respondent No. 1 for setting aside order dated
December 16, 2003 by which MJC NO. 29 of 2003 was
dismissed for default
F 10. From the record of the case this Court finds that the
suit, which was ti.led in the year 1955 for partition of the joint
properties, was permitted to be withdrawn and dismissed on
February 28, 1997 on the basis of so called application for
withdrawal filed by father of the respondent No. 1. Before
G dismissing the suit as withdrawn, the trial court had not issued
any notice to the deceased plaintiff or his heirs more particularly
when the learned advocate, who had filed the suit for partition
in the year 1955, was substituted by another advocate without
obtaining consent from the advocate who was earlier
H representing the deceased. No attempt was made by the trial
DWARIKA PRASAD v. NIRMALA AND ORS. 617
[J.M. PANCHAL, J.]
• \
court to verify as to what prompted the original plaintiff to A
withdraw the suit, more particularly, when order dated
September 30, 1991 rendered by the learned Single Judge of
the High Court remanding the matter to the trial court for fresh
decision was subject-matter of LPA No. 32 of 1991. On the
facts of the case, this Court finds that a grave error was B

. ~
committed by the trial court by dismissing the suit for partition
as withdrawn. In terms of order XXlll Rule 1 of the Code of Civil
Procedure, it is the privilege of the plaintiff alone to withdraw
the plaint at any stage of the proceedings and the appellant
being only one of the defendants having played the fraud in c
getting the suit dismissed as withdrawn, has no locus to object
to the restoration of the suit. What is relevant to notice is that
the late father of the respondent No. 1 did not claim any
exclusive title to the properties in himself. He claimed partition
of the properties as one of the joint owners. Initially, the suit was
-
A f
not only decreed in his favour but also in favour of the third
D

brother. It is well settled that in a suit for partition of the joint
properties every defendant is also in the capacity of the plaintiff
and would be entitled to decree in his favour, if it is established
that he has the share in the properties. Therefore, the suit for
partition of the joint properties, filed by the 1ate father of
E
respondent No. 1, could not have been dismissed as
withdrawn without notice to another brother, who was also
"(
entitled to share in the properties. Taking over all view of the
matter, this Court finds that no illegality or irregularity is
committed by the High Court in dismissing the Revision Petition F
filed by the appellant. The High Court has confirmed the order
of the learned Additional District Judge, Gwalior, by which
substantial justice is done to the parties. }"herefore, 110 case is
made out by the appellant to interfere with the order passed
by the High Court and, thus, the i~stant appeal is liable to be G
\
dismissed.
11. For the foregoing reasons the appeal fails and is
dismissed. There shall be no order as to costs.
D.G. Appeal dismissed. H