HARNANDAN SINGH Vs. MAHARANI KUER

JUDGEMENT

(1.) This is a Letters Patent Appeal from the judgment of U.N. Sinha, J. in First Appeal No. 455 of 1959. The learned Judge dismissed the appeal on the preliminary ground that on the death of one of the appellants, namely, Maheshwari Kuer, all her legal representatives were not brought on record and that consequently the appeal became incompetent.

(2.) There were two plaintiffs in the suit. Plaintiff No. 1 is Maharani Kuer, who claims to be the widow of one Bhaju Singh. Plaintiff No. 2 is one Rupia Kuer, who claims to be the daughter of one Dhanpat Singh, who died leaving a widow Musammat Chamela Kuer who is also dead. According to these two plaintiffs, there were four brothers, namely, Chamari Singh, Deo Singh, Bhaju Singh and Dhanpat Singh, who had partitioned their ancestral properties and thus were entitled to 4 annas shares each., Bhaju Singh's share devolved on his widow, plaintiff No. 1, and Dhanpat Singh's share devolved on his daughter, plaintiff No. 2, after the death of his widow. The disputed properties were sold away in execution of a mortgage decree by the creditor who subsequently made transfers of) portions of the same to various persons. The suit was contested by defendant No. 4, Maheshwari Kuer, and by defendants 8 to 15. Defendant No. 8 was one Sital Singh. Their, main defence was that the afore said four brothers were joint, that the mortgage decree was binding on all of them and that the title of the brothers to the property was completely extinguished by the mortgage sale.

(3.) The trial court decreed the plaintiffs' suit. Maheshwari Kuer was appellant No. 1 and Sital Singh was appellant No. 2. They both died during the pendency of the appeal, Maheshwari Kuer having died on the 15th June, 1960, and Sital Singh on the 10th February, 1960. On the 6th September, 1960, one Harnandan Singh, who is one of the sons of Maheshwari Kuer, filed a petition for substitution, saying that the heirs of Maheshwari Kuer formed a joint family, that he was the karta of the family and that he represented the entire estate of the family. It was, however, admitted that Maheshwari Kuer left other heirs also, namely, three daughters, Chando Devi, Bhusni Devi and Subja Devi, and a daughter of a pre deceased son, named Sobaya Devi and also the children of another so Sia Saran who died within a fev months after Maheshwari Kuer's death. An objection was taken to ithe substitution of the name of Harnandan Singh in place of Maheshwari Kuer on the ground that he did not represent the entire estate; but the court, on the 19th October, 1961, directed his substitution, leaving open, however, the question as to whether the appeal would become incompetent due to the non-subtitution of other heirs of Maheshwari Kuer. This question, therefore, came up for final decision before the learned Single Judge.