Hira Singh and Another vs Udham Singh and Others

R.S. Pathak, C.J.—This is a Plaintiffs ''second appeal against an order of the learned Additional District Judge, Kangra Division, declaring that a first appeal against a decree dismissing the Appellants'' suit had abated.

At the outset it may be pointed out that upon the circumstances of this case a first appeal lies against the order and accordingly this appeal will be treated as such.

The Appellants filed a suit for joint possession of land alleging that they were collaterals in the third decree of Wazira, and that Wazira had gifted the property to Udham Singh under a deed dated April 6, 1961, that the property was of the character of ancestral property and the parties were bound by custom which did not permit such a gift. It was further asserted that a part of the property had been sold to Udham Singh and thereafter to Sant Ram and his three sons Pritam Singh, Karam Chand and Hans Raj, and inasmuch as the vendor himself had no title the sale was void. All the aforesaid persons were impleaded as Defendants.

The suit was dismissed by the trail Court on the finding that a valid gift had been made and there was no prohibition in custom against the gift.

The Plaintiffs then filed an appeal against the trial court decree. During the pendency of the appeal the Defendant Sant Ram died. Shortly after an application was made by Udham Singh that the appeal had abated. Within a few days thereafter the Plaintiffs-Appellants applied, drawing the attention of the court to the circumstance that the three sons of Sant Ram were already arrayed as Defendants on the record. In other words, it was intended to show that the appeal did not abate. By that application the Plaintiffs-Appellants also sought permission of the court to bring on the record the remaining legal representatives of the deceased Sant Ram. The learned Additional District Judge held that the substitution application filed by the Plaintiffs-Appellants was barred by time, and proceeding on the belief that all the legal representatives had to be brought on the record in order that the estate of the deceased may be represented effectively he held that the presence of the three sons alone was not sufficient and therefore the appeal had abated.

It is clear that the learned Additional District Judge has misdirected himself in law. As long ago as Daya Ram and Others Vs. Shyam Sundari, the Supreme Court laid down that if some of the legal representatives of the deceased were present on the record they sufficiently represent the estate for the purpose of the proceeding before the court and it was not necessary that all the legal representatives should be brought on the record. This view was re-affirmed by the Supreme Court in Mahabir Prasad v. Jage Ram AIR 1971 S.C. 772. In that case, some of the legal representatives were already arrayed as parties to the appeal and the Supreme Court observed that all that was necessary was to make an application inviting the attention of the court to their presence before the court. The learned Additional District Judge has failed to take into consideration the law laid down by the Supreme Court and has consequently erred in holding that the appeal has abated.

The appeal is allowed. The order of the learned Additional District Judge is set aside and the appeal is restored to its original number for decision in accordance with law. In the circumstances there is no order as to costs.