BAKHTAWARI Vs. SADHU SINGH

JUDGEMENT

(1.) THE facts giving rise to this second appeal are as under: The property in suit belonged to Telu son of Ruldu, Jat of Tharwa, Tehsil Narain-garh, District Ambala. On 17-6-1949 he made a gift of the same in favour of his daughter Mst. Bukhtawari. The plaintiffs who claim to be the collaterals of Telu in the fourth degree brought the present suit for the usual declaration that the gift will not affect their reversionary interests. They alleged that the property in question was ancestral qua them and that Telu had no right under the custom to make a gift of the same in favour of bis daughter. The suit was contested by the donee who denied that the property was ancestral and who alleged that the gift had been made in her favour on account of the services which she rendered to defendant no. 1. On the pleadings of the parties the trial Court framed the following issues: 1. Js the property ancestral? 2. Are the plaintiffs collaterals of defendant No. 1? 3. Whether defendant No. 2 or her sons have rendered any services to defendant No. 1, and is the gift valid on that ground? 4. Whether the suit is speculative? 5. Relief.

(2.) AFTER recording evidence of the parties the trial Court came to the conclusion that a part of the landed property was ancestral and that the rest of the landed property and the house were not proved to be so. He also found that the plaintiffs were collaterals and were entitled to challenge the gift. In the result, he granted a decree in favour of the plaintiffs regarding the landed property held to be ancestral and dismissed the suit qua the property held by him to be non-ancestral. In appeal the decree of the trial Court was confirmed by the teamed District judge, Aggrieved against the decree of the lower appellate Court the donee Mst. Bukhtawari has come up to this Court in second appeal. Plaintiffs have filed cross-objections qua the property not decreed in their favour.

(3.) A preliminary objection is taken by the learned counsel for the respondents that mst. Bukhtawari died on 25th February, 1958 and her legal representatives have made no application to this Court for being impleaded as such and that the appeal must therefore be taken to have abated. Mr. Ganga Parshad, who appears for the legal representatives of Mst. Bukhtawari, brings to our notice that Sadhu Singh etc. respondents made an application in this Court on 24th May, 1958 wherein they prayed that the legal representatives of Mst. Bukhtawari be impleaded as parties in their cross-objections. He contends that the legal representatives of the deceased having been brought on the record the appeal could not abate. According to him, it made no difference at all that the legal representatives had been impleaded by the respondents or they had themselves applied to be impleaded. He draws our attention to Hukam Chand v. Laxmi Narain, AIR 1958 Raj 247, Arunachalam Aiyar v. Lakshminarasimham, AIR 1948 Mad 82, Kanthimathi ammal v. R. Peru-mal Kona, AIR 1925 Mad 777, and Labhu Ram v. Ram Partap, air 1944 Lah 76 (FB ). The facts of all these cases are, however, distinguishable from those in the present case. In AIR 1958 Raj 247, the respondent who had filed cross-objections, died and his legal representatives made an application for being impleaded as such. The appellant did not make an application for impleading the legal representatives of the said respondent on record. The said representatives having come on record at their own instance, it was held by the High Court that the appellant was under no further duty to make any application. This ruling can have no bearing on the present case because the legal representatives of the appellants have not themselves made any application and had no occasion to elect whether they would like to prosecute the appeal.