Substitution of Parties in Partition Suits: When Heirs Are Untraceable

1. Substitution of LRs under Order 22 Rule 4

When a party to a civil suit dies, the Code of Civil Procedure (CPC) requires their legal representative or heir to be substituted so that the suit can proceed. Order XXII Rule 4 CPC deals specifically with substitution of a deceased defendant. It provides that if a sole defendant or one of several defendants dies during litigation and the right to sue survives, the court must be informed and the legal representative brought on record. In other words, upon death the court “may, if it thinks fit, on the application of either party, require the legal representatives of the deceased defendant or of the person who may be entitled to succeed to the interest of such defendant” to be made parties. If substitution is not effected within the prescribed time, the suit abates by operation of law. Thus, Order XXII Rule 4 serves to prevent a defendant's death from obstructing justice: it ensures the litigation continues against the deceased's estate or heirs so that the rights of all parties, including claimants against the estate, may be finally adjudicated.

The partition suit is filed to divide the joint property among co-owners or heirs and this substitution rule has its own importance under the same. A partition suit does not automatically abrupt just because a co-owner or heir dies during the proceeding. Courts have repeatedly held that a partition suit does not abate merely because a deceased party's representatives have not yet been brought on record. For example, the Madras High Court observed that “a partition suit does not abate even if legal representatives are not brought on record”.^[3] Likewise, the Andhra Pradesh High Court noted that an administration or partition suit “does not abate as a whole” due to failure to join a deceased co-owner's heirs.^[4] In practical terms, this means the share of the missing heir remains legally protected and stays within the pending partition: the suit proceeds among the remaining parties, and the absent heir's share is held in suspense until a representative appears or a substitute is appointed. Thus, the heir's right in the estate is not lost by mere non-appearance; it survives for substitution or eventual recovery by the heir or the State if necessary.

2. Unextinguished Rights of Missing Heirs

The absence of a known heir does not extinguish that heir's rights under the partition decree. A missing co-owner's interest in the property continues to subsist. Courts emphasize that all co-sharers in a partition suit have equal, ratable interests in the property. If one dies, “the right to the share” simply passes to his heirs by succession law. Even if no heir has come forward or can be traced in time, the law treats the heir's share as in custodia legis (in the custody of the court) until proper substitution. In effect, the proceeding may continue among the known parties (especially since all preliminary steps in a partition may be taken without causing total abatement), and when a representative later appears, that heir can still claim the residue of the partition according to his inherited rights. Therefore, the legal principle is that no property interest of a deceased co-owner is forfeited by the mere failure to immediately join the heir. Instead, that interest awaits the heir or lawful representative, to be recognized once available.

3. Appointment of the Administrator-General under the Administrators-General Act

Where no heir or personal representative can be traced despite reasonable effort, the CPC provides a special mechanism. Section 4 A, CPC empowers the court to proceed in such cases by appointing an official to represent the unknown estate.^[5] Specifically, Section 4 A(1), CPC authorizes the court, on an application, either to proceed in the absence of a person representing the deceased's estate or to appoint the Administrator-General or an officer of the court to represent that estate. In practice, when an heir cannot be located, the court can entrust the estate of the deceased to the Administrator-General of the State; the official charged with administering unclaimed estates under the AG Act.

Under that Act, the Administrator-General is a statutory officer empowered to act in place of a personal representative for estates with no known heir. For example, Section 10 of the 1963 Act allows the Administrator-General to apply to the High Court for letters of administration over any estate where immediate action is needed. The AG Act only empowers High Court or State Government to appoint Administrative General of the particular estate but on the other hand CPC empowers any court dealing with the subject matter can appoint the Administrator General. More generally, the combined reading of Section 4 A, CPC and the Administrators-General Act is that when a defendant (or tenant, licensor, etc.) dies without known heirs, the court may invoke its jurisdiction to insert the Administrator-General as party to the suit in place of the missing person. In effect, the State steps in to protect the deceased's interest and ensure the litigation can proceed.

4. Duties and Functions of the Administrator-General

Once appointed or granted letters of administration, the Administrator-General shall perform the role of estate administrator. His duties largely mirror those of a private administrator or executor, as detailed in the Act. He must take custody of and preserve all assets of the deceased that come into his hands. If urgent steps are needed (e.g. to prevent waste or loss), Section 10 of the Act empowers him to act immediately to secure the estate. The Administrator-General will investigate the estate: listing assets, paying lawful debts, and managing any property (for example, renting or selling assets if necessary to satisfy claims).

Once the Administrator-General has discharged debts and claims, any remaining assets must be vested properly. Section 24 provides that after all liabilities are satisfied, he may appoint the Official Trustee to hold any leftover assets on the same trusts as held by him. This ensures that unclaimed portions of the estate continue to be held securely until any entitled heir emerges or until statutory escheat occurs.

5. Subsequent Events: Heir Appears or Remains Absent

5.1 Heir Appears after Administrator-General Appointment

If a lawful heir or executor eventually comes forward after the Administrator-General has been appointed, the statute provides for handing the estate over to that heir. Section 14 of the 1963 Act addresses this. When an executor or next-of-kin (who had not been served notice earlier and remained untraced) proves a superior claim, any administration granted to the Administrator-General is revocable. The High Court must revoke the Administrator-General's letters and grant them to the heir or executor instead. In effect, the rightful heir takes over administration. For example, the Act directs that if an heir applies within six months of the grant (without unreasonable delay) and the court is satisfied of his priority, the Administrator-General's grant “shall be revoked… and probate or letters of administration may be granted” to the heir. In Mohd. Iqbal vs. Najma 2019, Delhi High Court held in circumstances when legal heir comes before the court afterwards of the appointment of Administrator General may allowed to present only in order to ensure that the auction (since by partition division of estate was not possible) proceedings are conducted in a proper and legal manner.^[6]

The statute further provides that the Administrator-General may be reimbursed for costs incurred. Section 15 authorizes the court to order that the costs of obtaining letters of administration (and any administrative fees) be paid to the Administrator-General out of the estate once his grant is revoked. Thus, the Administrator-General is not penalized for having served, but transitions the estate to the heir. All acts done by the Administrator-General prior to revocation (such as payments made or contracts executed) remain valid as if done under the heir's administration. In summary, when an heir appears, they effectively step into the shoes of the Administrator-General, with the court unwinding or ratifying the estate administration in their favour, ensuring continuity and fairness.

5.2 No Heir Ever Appears: Escheat to the State

If no heir or claimant ever emerges, Indian law ultimately vests the estate in the State after a defined period. The Administrator-General's Act provides a statutory mechanism. Section 51 of the Act states that “all assets in the charge of the Administrator-General which have been in his custody for a period of twelve years or upwards… without any application for payment thereof” shall be transferred to the Government. In plain terms, if twelve years elapse from the time the Administrator-General took charge and no claimant has sought payment of any part of the estate, the property automatically goes to the State.

The Supreme Court has affirmed this rule in practice. In Virendra Kumar Gupta v. State of U.P. (2003), the Allahabad High Court quoted Section 51 and noted that property administered by the Administrator-General “stood automatically transferred in the year 1985 to the State Government” once twelve years passed.^[7] This means the Administrator-General can no longer act on the estate after that point the State treasury assumes ownership, subject to any debts or liabilities. In short, the heir's rights, while preserved by law, cannot be asserted indefinitely; after 12 years of dormancy, the estate escheats.

Practically, this statutory scheme ensures that property does not remain in limbo forever. Section 51's transfer to the State comes with an important proviso: the statute disallows this transfer if any suit or proceeding regarding the property is pending in court. Thus, as long as someone contests or sues over the estate, the twelve-year clock may be tolled. But once all proceedings are closed and time has passed, the law presumes abandonment and passes title to the State. This outcome reflects the uniform policy underlying escheat doctrines (as embodied also in Section 29 of the Hindu Succession Act): property of an intestate with no heirs ultimately vests in the State, subject to liabilities.

In conclusion, when heirs cannot be traced for substitution in a partition suit, section 4 A CPC allow the proceeding to continue by bringing in the Administrator-General if needed. The missing heir's share remains protected and can be claimed later. The Administrator-General's role is to manage the estate diligently – giving notice, collecting claims, paying debts, and preserving assets until the heir appears or statutory time limits expire. Should an heir come forward, the Administrator-General's administration is revoked in their favour. If no heir ever appears, the unclaimed estate escheats: after 12 years the assets are transferred to the State under Section 51 of the 1963 Act, consistent with the escheat principle in succession law. Each step is grounded in statutory mandate, ensuring that the rights of the missing party are safeguarded while also providing a just resolution when the inheritance cannot be claimed.