Only siblings should be made as party to continue eviction suit
Who has the right to replace an unmarried litigant in an eviction case filed by him on behalf of the joint family
We are Hindus from Saran district of Bihar. My grandfather self acquired some land and built residential and commercial building in it. He passed away and now a few sons and grandchildren are the heirs. We filed an eviction suit against a tenant of one of the commercial shops. The eviction suit was signed by one of my cousins ( whose father/my uncle is no more). The case is going on but recently my cousin, who is only signatory, has passed away. He was unmarried. He has 2 siblings ( brothers) and rest of are either his first cousins or uncles. All of us are co- sharers. Now, after his passing away, who has the legal right to replace him in this particular Eviction Suit ? Can only his siblings have the right to do so ? Or any of his cousins or uncles (co -sharers) can also sign and replace him ? The shop in question is a common property of the entire family.
Asked 25 days ago in Property Law
Religion: Hindu
14 Answers
After the death of your cousin only his surviving bother or sister are his legal heirs and hence they alone will be substituted in the eviction suit in his place and they can continue with the suit like before. The cousins of the deceased cousin are not his legal heirs.
The legal heirs of your deceased cousin is her mother (because he is unmarried) as class I legal heir, if she is not alive then his father (class -II legal heir), if his father also not alive then the legal heirs of his father, i.e., the living brother of the deceased cousin.
Thus the legal heirs of your deceased cousin will be the legal heirs of his deceased father, it may be his own brothers and sisters also.
Any one of the co-owners/coparceners of ancestral can substitute him for the deceased plaintiff. All other can submit a consent petition for his substitution.
The immediate legal heirs can do the same ,Class 1 Heirs
- As per law, after the demise of your grandfather intestate , his property would be devolved upon all his legal heirs equally i.e. his children and wife.
- Further if there is no son and daughter are alive then the children of them will have right to claim the share in the property.
- However, as the said case was filed by your unmarried cousin brother then his mother can be substituted in that case , and even she is not alive then his fathers class I legal heirs can be substituted .
- Since, you are also a sharer in that property then you can file an application before the same Court for becoming a party in that case.
As the eviction action pertains to a commercial shop that is joint property of the whole family (all co-sharers), the action must be prosecuted by an individual or individuals lawfully authorized to act in the joint interest of all co-sharers. Your cousin, being the only signatory and plaintiff in the suit, has died unmarried and without legal heirs (children). His interest in the property and in the suit rights falls on his legal heirs, who are his brothers, under the Hindu Succession Act, 1956 (as amended). As your cousin passed away intestate and unmarried, his legal heirs are his siblings (brothers). They inherit his share in the property and his rights in the suit. Hence, only his siblings have the legal right to be substituted in his stead in the eviction suit. Other co-sharers like cousins or uncles do not inherit the share of the deceased cousin and therefore cannot replace him as a party in the suit. They remain co-plaintiffs or co-sharers in their own right but cannot occupy the shoes of the deceased litigant. Brothers of the late cousin should approach the court of the first instance by filing an application for substitution of the late party under Rule 3 of Order 22 of the Civil Procedure Code (CPC) accompanied by evidence of their succession as legal heirs (family tree, succession certificate, or otherwise).If your cousin was the sole plaintiff (single signatory) in the suit, the suit cannot proceed without substitution. The brothers should be substituted in time to prevent dismissal for non-prosecution.
My follow up question is that had there been two signatories, could the case have continued only with the remaining one signatory, without substituting the deceased signatory ? Regards
Asked 24 days ago
Substituting is mandatory
Actually and legally the legal heirs of the deceased have to be impleaded as LRs to the case, even if one of them is not impleaded as necessary parties then the non joinder of necessary party may lead to dismissal of the case.
You need to bring legal heirs of deceased signatory on record
Law mandates that the deceased litigant is to be substituted if his right to sue survives upon his legal heirs.
- Substitution of all the legal heirs is mandatory .