ASHGARI BIBI Vs. SHAMAL KUMAR

JUDGEMENT

(1.) This appeal by the plaintiff who has had a mixed fortune so far, viz., successful termination of the suit before the learned trial court and then dismissal of the suit on appeal by the contesting defendants, raises a very short but interesting question.

(2.) The question involved is whether in a suit against a person who dies before the institution of the suit, his legal heirs and representatives can be subsequently brought on record on discovery of the fact of his death.

(3.) The plaintiff's suit which is for the setting aside of the ex parte decree passed against her in Title Suit No.221 of 1957 and for recovery of possession and other reliefs, is based on the following facts : Abdur Rahaman, the plaintiff's father was a thika tenant under the defendants Nos. 1 and 2 in respect of the properties in suit. He died on Nov.11,1954 at Dacca leaving the plaintiff and the pro forma defendants Nos.3 to 5 as his legal heirs. About long three years after his death, the defendants 1 and 2 filed a suit for eviction against him being Title Suit No. 221 of 1957 where his brothers, the pro forma defendants Nos. 6 and 7 were unnecessarily made parties since they had no interest in the suit properties. Subsequently the name of Abdur Rahaman was expunged and the plaintiff and his other legal heirs were added as parties in his place. Thereafter, by suppression of summons the defendants Nos.1 and 2 obtained an ex parte decree in that suit.