SUDAMA DEVI Vs. JOGENDRA CHOUDHARY

JUDGEMENT

(1.) Whether the legal guardian of a minor in possession of his property, who is himself a party to the suit along with such minor, would, on the latter's death, become his legal representative as an intermeddler with the estate under S.2(11) of the Civil P.C. is the somewhat significant and ticklish question necessitating this reference to a Full Bench.

(2.) The facts are not in serious dispute. The deceased, Dinesh Paswan, along with his father, Parmeshwar Paswan, and others, had brought the suit for partition of the two-fifth share of the plaintiff's in the suit property and also for a declaration that the deed of sale executed by Raghuni Paswan in favour of Defendant 17, Hari Jha, was collusive, without consideration and inoperative. The said suit was decreed on the 29th July, 1975. The defendants preferred Title Appeal No. 25/10 of 1975/77, which was allocated to the First Additional District Judge, Darbhanga.

(3.) During the pendency of the appeal, Dinesh Paswan, aforesaid, died on the 30th June, 1976, leaving behind his mother Buchi Devi and his father, Parmeshwar Paswan. Admittedly, the mother, who was Class I heir under Section 8 of the Hindu Succession Act, was not brought on the record as a legal representative within the period of limitation. An objection petition was preferred on behalf of the respondents, raising the plea that the whale suit had abated because of the failure to substitute the Class I legal representative of the deceased minor Dinesh Paswan. In the circumstance, an application under Section 5 of the Limitation Act was also preferred for condoning the delay in filing the petition for setting aside the abatement of the appeal on the ground that there was sufficient cause therefor as the appellants were not aware of the death of the respondent and his legal heirs. The learned Additional District Judge, in an elaborate order dated the 26th September, 1978, rejected the stand of the appellants before him and held that there was no sufficient ground for condonation of delay and that the appear abated as a whole.