MOHAMMAD NIZAMUDDIN KHAN Vs. AHMEDI BEGUM

JUDGEMENT

(1.) The second plaintiff is the appellant in this appeal. The suit wasfiled by the two plaintiffs for partition of their shares and separate possession. Pending the suit, the first plaintiff died, but the Legal Representatives of the first plaintiff are not brought on record. Hence an application was filed by the 6th defendant for declaration that the suit is abated so far as the first plaintiff is concerned and asked for a declaration that as a consequence of such abatement the entire suit was abated. The Court granted the said relief holding that the suit is abated so far as the first plaintiff is concerned and in consequence thereof, the entire suit is abated and consequently dismissed the suit as abated in its entirety. Hence the appeal by the second plaintiff.

(2.) It is seen the sole question tor determination is whether partialabatement has caused total abatement of the suit. For this purpose we must look to Order XXII, Rules 1, 2 and 3 which are in the following terms :

(3.) (1) Where one of two or more plaintiffs dies and the right tosue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or a sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of "the deceased plaintiff to be made a party and shall proceed with the suit.