TULSIBAI Vs. BHERULAL

JUDGEMENT

(1.) This is the appeal of the plaintiff, now deceased, and continued by her Lrs. against the lower appellate court's judgment and decree, affirming the trial court's dismissal of her suit.

(2.) Plaintiff Tulsibai, now deceased, had filed the suit against Sitaramdas who died during the pendency of the suit and also against one Bherulal. It was alleged in the suit that Sitaramdas had executed a bogus sale-deed dated 22-4 1965 in favour of the other defendant Bherulal, without any right and title which actually vested in the plaintiff alone. It was urged in this connection that the prior sale-deed dated 9-2-1949 on the strength of which the defendant No. 1 Sitaramdas had claimed his own title and on the strength of which he had sold the house in question to the other defendant Bherulal, was a forged and fictitious document, without any consideration, and likewise forged, was one rent note dated 9-2-1949. The plaintiff, hence, claimed the following three reliefs in her suit.

(3.) Defendant No. 1 Sitaramdas had died during the pendency of the suit and the plaintiff failed to bring the deceased's LRs. on record. The defendant No. 2 Bherulal, among other contentions, raised the preliminary objection that the LRs. of the deceased Sitaramdas were necessary parties to the suit and in their absence, the suit was not maintainable against Bherulal alone. It was stated that with the death of Sitaramdas and in the absence of his LRs right to sue could not survive against the defendant No. 2 Bherulal alone and consequently the suit had abated as a whole and was liable to be dismissed as being improperly constituted in the absence of the LRs of the deceased. The trial Court decided this primary objection by way of a preliminary issue, and upholding the contentions of the contesting defendant Bherulal, held that the right to sue did not survive against Bherulal alone and the suit which had thus abated against the deceased defendant Sitaramdas, was liable to be dismissed as improperly constituted in the absence of the LRs of the deceased on record. Accordingly, the suit was dismissed. The plaintiff preferred the appeal against the same. The lower appellate Court, upholding the reasonings and findings of the trial Court in toto and further relying on, AIR 1954 Raj 287. Poonamchand v. Motilal, dismissed the appeal, and hence now, the plaintiff's present second appeal,