ANNABAI DEVRAM KINI Vs. MITHILAL DAISANGAR SINGH

JUDGEMENT

(1.) THE short question that arises in these two appeals is whether the suit for specific performance of the contract abates in its entirety when one of the plaintiffs being party to a joint, indivisible contract, dies and his heirs and legal representatives are not brought on record within the specified time and whether it is permissible for the heirs and legal representatives of such plaintiff to apply after several years to bring themselves on record and set aside the abatement of the suit only as against the deceased plaintiff.

(2.) THE facts of the case in brief are as follows : the present suit for specific performance was filed by the plaintiff Nos. 1 to 3 on the basis of an agreement of sale in respect of the immovable property described in Exhibit A to the plaint. During the pendency of the suit, plaintiff No. 1 died on 5-4-1997. The plaintiff Nos. 2 and 3 did not take any steps to bring the heirs and legal representatives of the deceased plaintiff on record. On 28-6-2000 a Chamber Summons was taken out by the heirs and legal representatives of the deceased plaintiff No. 1 for bringing them on record in place of plaintiff No. 1 and for setting aside the abatement of suit with regard to plaintiff No. 1. This chamber summons was addressed only to defendants. In the affidavit in support of the Chamber Summons it is claimed that the applicants came to know about the suit when they received a letter dated 17-6-2000 from the Advocate of the plaintiffs informing them about the suit and asking for names and addresses of the heirs and legal representatives of the deceased plaintiff No. 1. There is no explanation given about the failure on the part of the plaintiff Nos. 2 and 3 to bring the heirs and legal representatives on record within the prescribed time and their inaction for all these years inspite of the death of plaintiff No. 1.

(3.) THE question involved is not a virgin one. There is a catena of decisions on the question of abatement on the death of a party. The question has to be resolved with reference to substantive law also.