With reference to suits of partition, Order 20 Rule 18 is quite explicit. A fundamental principle regarding partition suits is that all the properties of the parties shall be brought in for partition and not merely some of the properties.
Most important aspect in respect of partition suits is the ancient traditional law holding good even now that a female cannot file a suit for partition if share in a dwelling house is also involved.
This is on the ground that a woman cannot seek the division of a dwelling house perhaps on the ground that no woman separately needs a dwelling house.
Ordinarily when a necessary party is not included in the case, the case becomes bad and any order passed in the case is affected. The very case becomes bad and a judge sitting in appeal would have no option but to set aside the very decree passed by the trial court on the ground that the very suit before the trial court is not maintainable in the absence of necessary parties.
ADVERTISEMENTS:
In the case of partition suits, however, the method adopted is different. Various parties are included in the final decree and other parties who are to be included in the final decree can very well be prescribed in the judgment of the court, at preliminary decree stage.
Legal representative is defined by Section 2(11) as a person who represents the estate of the deceased person including an intermeddler. A legal representative is one who actually did not incur the liability in the suit but who is representing a person who is no more.
The liability of a legal representative has been clearly distinguished from the liability of the principal. A legal representative is liable only to the extent of the estate inherited by him from the deceased.
In other words, a legal representative is not liable anything to the decree-holder or the suitor if the deceased left nothing to the legal representative. Assuming that the original debtor owes one lakh rupees to the plaintiff, if the defendant left only ten thousand rupees to his legal representative, the plaintiff can realise from the legal representative only to the tune of the amount of ten thousand rupees.
ADVERTISEMENTS:
Keeping this legal position in mind, a judgment should specifically state the amount due to the decree-holder and the amount payable by the judgment-debtor as legal representative of the deceased.
The usual method of writing a judgment in such a case is decreeing the suit for the total amount due and passing a decree against the legal representative only to the extent of the estate derived by the legal representative from the deceased.