Partition allotment and representative impleadment: constructions with notice create no equity, and incomplete heirs' impleadment need not cause abatement.

A claim to resist specific allotment in partition on the footing of constructions raised on the property failed because the works were made with notice of the respondent's title claim and without bona fide equity; the respondent's right to partition and specific allotment was upheld. On abatement, the appeal did not fail merely because all legal representatives of the deceased respondent were not initially impleaded, since bringing on record those known after diligent enquiry was sufficient to represent the estate in the absence of fraud or collusion. The preliminary objection as to abatement was rejected.

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Issues: (i) Whether the appellants could resist specific allotment of the respondent's share in partition and insist on payment of money value on the footing of constructions raised on the property. (ii) Whether the appeal had abated because some of the legal representatives of the deceased respondent were not initially brought on record.

Issue (i): Whether the appellants could resist specific allotment of the respondent's share in partition and insist on payment of money value on the footing of constructions raised on the property.

Analysis: The claim to an equity was rejected because the constructions were made with notice of the respondent's title claim and after the appellants' predecessor had asserted a defence that had already failed. The alleged salvage of the property from acquisition did not create any equity in favour of a person who dealt with the land as if he were the full owner. The plea was essentially one under the principle of improvements by a bona fide co-owner, but the facts negatived bona fides and brought the case within the position of a trespasser making constructions with notice of the true owner's claim.

Conclusion: The appellants were not entitled to defeat the respondent's right to partition and specific allotment; the decree in favour of the respondent was upheld.

Issue (ii): Whether the appeal had abated because some of the legal representatives of the deceased respondent were not initially brought on record.

Analysis: The estate of a deceased respondent is sufficiently represented when the appellant, after diligent and bona fide enquiry, brings on record persons known to be legal representatives within time. Abatement does not follow merely because every heir has not been impleaded, so long as there is no fraud or collusion and the estate is properly represented. The omission of some heirs required completion of the record, but it did not cause abatement of the appeal.

Conclusion: The appeal had not abated on account of the omission to implead all legal representatives.

Final Conclusion: The appeal was liable to fail on merits, and the preliminary objection as to abatement also did not succeed.

Ratio Decidendi: A person brought on record as a legal representative sufficiently represents the deceased's estate for purposes of the suit or appeal in the absence of fraud or collusion, and no equity can be claimed for constructions made on another's property with notice of the true owner's claim.

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