Sadhu Saran Pandey vs Nand Kumar Singh and Others

This is an application to set aside abatement and substitution of the persons named in the petition as heirs of the deceased respondent. Notices of the appeal were served upon respondents Nand Kumar Singh, Ramsingar Singh and Mathura Prasad Singh, Thereafter Nand Kumar Singh died, in whose place the appellant substituted the name of his widow, Mt. Ramkali Koer. At a subsequent stage it turned out that Nand Kumar had another widow named Sheoratan Koer and that Mathura Prasad Singh was also dead leaving his widow Sri Krishna Koer. The appellant therefore applied for setting aside the abatement and for substitution of the co-widow Sheoratan Koer, as an heir of Nand Kumar Singh in addition to the first widow already brought on the record. They also applied for substituting Sri Krishna Koer in place of Mathura Prasad Singh.

As far as Nand Kumar Singh is concerned there is no difficulty; for Ramkali, one of his widows, was brought on the record within time and the appeal did not, therefore, abate so far as he was concerned. In accordance with the authority of this Court in the case of Lilo Sonar Vs. Jhagru Sahu, and in consonance with Rule 4, of Order 22, the appeal against Nand Kumar Singh could not abate, as one of his heirs was already on the record. The bringing in of Sheoratan Koer on the record is only for the purpose of the final disposal of the appeal.

As regards Mathura Prasad Singh the contention has been that the application for substitution of his widow in his place was not made in time, nor was the application for setting aside abatement. There has been, no doubt, a great delay in making the application in this behalf; but the circumstances of the case show that the appellant came to know of the death as alleged by them at a time which is well within the time they are entitled to make an application for setting aside the abatement. The notice upon Mathura Prasad was duly served and the appeal has far advanced. No doubt the appellant is required to be diligent in prosecuting his appeal; but after he gets the notice served upon the respondent he is not required to watch the movements of the respondent and as to whether he is dead or alive. The law, therefore, is that he must make an application within ninety days of his knowledge of the death; but it has to be seen whether the date of knowledge has been falsely alleged. There is no reason why the appellant who has been prosecuting this appeal so diligently would allow the appeal to abate if he had known of the death of Mathura Prasad Singh earlier than what is stated in his application. Mr. Sambhu Saran says that the appellant must have known of the death of Mathura Prasad at least on the 20th of September 1924, when notice of a rent suit brought by the widow of Mathura Prasad against one of the appellants was served upon him. In support of this contention he has filed a certified copy of a notice of the aforesaid suit. The service return shows that the appellant refused to give the receipt. This in itself does not show that the summons or notice was actually served upon the appellant. Moreover, the notice to one of the appellants is not notice to all, and there is nothing to indicate that the appellant apprised the death of Mathura Prasad to the rest of the appellants. Each one of the appellants is entitled to prosecute the appeal and to apply for setting aside abatement and for substitution. Therefore the certified copy of the notice filed by Mr. Shambu Saran is not conclusive upon the point.

In the circumstances of the case I would set aside the abatement and allow substitution as prayed for. The name of Sri Krishna Koer be substituted in the place of Mathura Prasad Singh, deceased. The name of Sheoratan Koer, co-widow of Ramkali Koer, be included as a respondent and a legal representative in place of Nand Kumar Singh.