IDOL SHRI MADHAVNARAYANJI TEMPLE MADANMOHANLALJI Vs. NARAYANDAS SHRIKISHAN

JUDGEMENT

(1.) THE only question involved in this second appeal is, whether an appeal, in which one of the respondents dies and some of his legal representatives are already on record whereas the rest of them have not been brought on record within the time-limit allowed by law, the appeal abates as against the latter legal-representatives and consequently abates as a whole. The learned Second Additional District Judge, ujjain, answered this question in the affirmative and dismissed the appeal in its entirety. The propriety of the view taken by the learned Judge is assailed before this Court.

(2.) IT is contended by Mr. Bhalerao for the appellant that since all the sons of the deceased respondent were already on record and the appeal was sought to be proceeded with by seeking to strike out the name of the deceased respondent without impleading the widow and the daughters of that respondent the estate was substantially represented and consequently there could not have been an abatement as was held by the lower Court. He relied upon the decision of this court reported in Laxminarayan v. Firm Benibhai Bhikhabhai, 1958 MPC 305.

(3.) ON the other hand it is contended by Mr. Garg on behalf of the respondent that there had been a cross-appeal filed by the deceased respondent as well as his sons and in that cross-appeal the names of the widow and daughters of the deceased respondent had been brought on record to the knowledge of the present appellant. Consequently, according to the learned counsel, his proceeding with the appeal in the absence of widow and daughters of the deceased respondent could not be said to be bona fide. In the second place he contended that it was certainly open for the appellant in view of the decision of this Court reported in Abdul Baki v. Bansilal Abirchand Firm nagpur AIR 1945 Nag 53 to seek to add the widow and daughters as parties within three years from the date of death of the deceased under Article 181 of the limitation Act and the rule of limitation regarding 90 days was inapplicable still in the present case the appellant did not bring on record the legal representatives even within three years although the fact that they were also the legal representatives of the deceased respondent had been brought to the appellant's notice by means of an application submitted in the cross-appeal on behalf of the respondent on 2-3-1957. The learned counsel relied upon the decisions reported in jugalkishore v. Wardhasa, (S) AIR 1955 Nag 166 Ramnath Kisanlal v. Ramgopal bhulal, AIR 1951 Nag 434 Munnalal v. Balchand 1961 Jab LJ 230 and Shivraj singh v. Gaurishankar 1961 Jab LJ 1276 :air 1961 MP 147 in this connection.