SOGRA BEGUM Vs. M M HUSSAIN

JUDGEMENT

(1.) An interesting question is debated in this case for which the following format may be drawn up :

(2.) A suit was fled by the revision petitioner herein against defendants 1 and 2 along with two others including the Muslim Wakf Board for rendition of accounts in respect of income from the plaint schedule property and expenditure from the year 1965-66, and for payment of 1/4th of net income together with the interest to the plaintiff. The averment made in the plaint was that Defendants 1 and 2 are muthavallies for administration of- the said properties of Wakf. The suit was, however, dismissed. Against which an appeal was preferred. When the appeal was pending, the second defendant died. Since admittedly the legal representatives of the 2nd defendant were not brought on record, the appeal abated. However the revision petitioner herein, who was the appellant, prayed that the appeal may be allowed to go on notwithstanding the fact that the 2nd defendant died as it was contended that the entire appeal cannot be said to have abated. This contention was based upon the decision reported in Municipal Board, Lucknow vs. Pannalal. The Lower Appellate Court however held inter alia that it was quite clear that the primary responsibility, if any, to account for the income was on the 2nd defendant and since the allegation in the plaint is that defendants 1 and 2 have to account for the income jointly and severally, in the absence of one of them the claim, for rendering account will become unsustainable for the reason that they cannot be individually made liable to account. Therefore, the plaintiff could not have filed the suit against one of the two defendants alone for rendition of accounts. Consequently, it was held that the appeal stands abated as against the other respondents due to the death of the 2nd defendant. Tt, accordingly, dismissed the appeal.

(3.) In this revision the contention of the learned counsel for the petitioner is based upon the Judgment of the Supreme Court cited supra wherein facts are similar, and it is submitted that merely because the 2nd defendant died, it cannot be said that entire appeal abated, as the first defendant must be deemed to be acting as a representative of the Wakf Board. It is contended that since in the net income of the properties the plaintiff is entitled to a 1/4th share, a decree can as well be passed against the 1st defendant. I apprehend this approach is not justified either on merits or on the ratio laid down in the decisions of the Supreme Court cited by the leamed counsel.