MUSAMMAT HIFSA KHATOON Vs. MOHAMMAD SALIMAR RAHMAN

JUDGEMENT

(1.) This application is on behalf of the defendants first party and is directed against the Judgment and the order of the Additional Subordinate Judge 1, Patna, dated the 21st of December, 1954, holding that the suit out of which this application arises did not abate.

(2.) The short facts' are these : A partition suit, being Partition Suit No. 39/23 of 1950/53, was filed by two plaintiffs the son and the grandson of one Abdul Rahman. The petitioners are the widow the sons and the daughters of Abdul Stibhan, the brother of Abdul Rahman. One Mohammad Omar was defendant No. 9 in the suit. He died on the 6th of November, 1951, and in his place his widow, Musammat Saycra and his sons and daughters were substituted. Musammat Saycra was made defendant No. 9 and her sons and daughters were defendants 9 (a) to 9(g). Later on, Musammat Sayera also died on the 23rd of July, 1953, leaving as her heirs her sons and daughters who were already on the record as defendants 9(a) to 9(g). As the heirs were already on the record, no application for their substitution was made in the case, but on the 24th of June, 1954, about a year after the death of Musammat Sayera, the plaintiffs made an application stating that Musammat Sayera died on the 23rd of July, 1953, and her heirs were already on the record as defendants 9(a) to 9(g) and prayed that the above fact may be noted. On the 3rd of November, 1954, the petitioners put in an application contending that the application made on behalf of the plaintiffs referred to above having been filed beyond the time prescribed for the filing of an application for substitution of the heirs of the deceased, the suit abated. The learned Subordinate Judge overruled the above contention and passed an order that, in view of the fact that all the heirs of Musammat Sayera were already on the record, the name of Musammat Sayera, defendant No. 9 should stand removed and her heirs named in the petition filed by the plaintiffs be treated as such in her place. Being aggrieved by the above order the present application has been filed in this Court by the defendants first party. ,

(3.) The case originally came up for hearing before a Single Judge of this Court on the 24th of August, 1957, who, on the submissions made by both the parties that the two Division Bench cases of this Court have taken different views with regard to this matter, referred the case to be heard by a Division Bench, and subsequently on the 11th of August, 1958, a Division Bench, of this Court for the same reason thought it proper to have the matter decided by a Full Bench and hence this case has been placed before us for disposal,