PANDURANG SADASHIO PATIL Vs. PANDURANG CHIMANJI PATIL

JUDGEMENT

(1.) The question involved for consideration is whether on the death of one of the two defendants, the suit abates in its entirety, or in other words, whether the right to sue survives in respect of money claim as against the surviving defendant.

(2.) The suit was filed by the present non-applicant for specific performance of a contract in respect of a field property and in the alternative, for refund of the earnest money against the two defendants, Pandurang Patil (the present applicant) and his brother Kashiram, since deceased.

(3.) During the pendency of the suit, Kashiram died on 15-12-1977 and his legal representatives were not brought on record. The plaintiff then filed a pursis on 17-10-1978 stating that the right to sue in the case survives to him as against the surviving defendant and the suit be proceeded against him. This pursis was opposed by the present applicant contending that the field in question was owned jointly by the two brothers and the right to sue never survived in favour of the plaintiff as against one of the Joint owners of the property. The suit, therefore, must abate in its entirety.