TAPESHWAR PANDEY Vs. RAMAJODHYA SINGH

JUDGEMENT

(1.) This appeal has been filed against an appellate order dated 11th September, 1975 passed in Title Appeal No. 138/26 of 1968/74.

(2.) In the appellate stage Raj Kumari Devi, substituted heir of plaintiff No. 5, died. The appellate Court held that the whole appeal abated. It has been held in Mahabir Prasad v. Jage Ram and Ors. that if an heir of the deceased is already on record to represent the estate of the deceased then the appeal will not abate. In the present case, the two heirs substituted on account of the death of plaintiff No. 5, namely. Most. Raj Kumari and Smt. NoonooBati, wife of Sheonandan Singh. Smt. Noonoo Bati and Most. Raj Kumari were own sisters. During the appellate stage Smt. Noonoo Bati died. She was substituted by her sons, namely, Rajaram Singh, Ramdeo Singh and Rambilash Singh. It appears from the memorandum of appeal that the other heirs of plaintiff No. 5 namely, Rajaram Singh, Ramdeo Singh and Rambilash Singh were already on the record. If the other heirs of Raj Kumari Devi were already on the record, then the question of abatement does not arise. The provision of Limitation Act in filing the application for setting aside the abatement will also not apply. The applicant is only required to state that other heirs of Raj Kumari Devi are already on the record, in this circumstances, there is no question of abatement of the appeal. In my opinion, the appeal has not abated, in view of the fact that the other heirs of Raj Kumari Devi, namely, Rajaram Singh, Ramdeo Singh and Rambilash Singh, are already on the record. If there are other heirs also of Raj Kumari Devi, the appellant can bring them on the record by informing the Court.

(3.) In the result, the petition is allowed and the order dated 11th September, 1975 is set aside. I direct the Court below to proceed with the appeal in accordance with law and the parties shall bear their own costs.