SHIVRAJSINGH Vs. GAURISHANKAR BALDEO PRASAD

JUDGEMENT

(1.) GAURISHANKAR instituted a suit against Ochhkai defendant No. 1, Vijaysingh, defendant No. 2, Shivrajsingh, defendant No. 3, Bhagwant-singh defendant No. 4, and Ajabsingh defendant No. 5 for declaration of title to a Khander and for possession. The Civil Judge passed a decree in favour of the plaintiff. Ochhkai, Shivrajsingh, Bhag-wantsingh and Ajabsingh preferred an appeal against Gaurishankar. Vijay singh was made a respondent.

(2.) DURING the pendency of the appeal, Ochhkai died on May 23, 1956. An application was made under Order 22, Rule 2 of the Code of Civil Procedure by Shivrajsingh, Bhagwantsineh and Ajabsingh, stating the fact of the death of their father, Ochhkai, and informing that they were his legal representatives and were already on the record. Gaurishankar raised on objection that since the deceased had left a surviving widow and a daughter the appeal could not proceed in their absence. They were necessary parties and since the prescribed time had expired the appeal had abated, the Additional District Judge upheld the objection and dismissed the appeal on January 24, 1957. The second appeal (No. 59 of 1957j has been filed by Shivraj Singh and his two brothers.

(3.) IT is argued by Shri Gupta appearing on behalf of the three brothers that Ochhkai having died before coming into force of the Hindu Succession Act, 1956, the daughter and the widow had no interest in the property and the three sons of Ochhkai fully represented him. It is also urged that it the widow and the daughter did not choose to continue the appeal, the surviving appellants could not be deprived of their right of appeal.