SURJDEO DUBEY Vs. KRIPANARAYAN TIWARY

JUDGEMENT

(1.) This appeal by the two substituted heirs of the defendant is directed against the order refusing their prayer for being substituted in place of Baijnath Dubey the plaintiff in Title Suit No. 107 of 1955.

(2.) The facts giving rise to this appeal are shortly these: Baijnath Dubey filed a suit for partition of his 8 annas share in certain properties against Manki Dubey. A preliminary decree was passed by the trial Court. But there was an appeal against that decree in this Court (First Appeal No. 94 of 1957). After disposal of the first appeal a commissioner was appointed by the trial Court for making allotment of various properties. The commissioner submitted his report and that report was confirmed. On 28th March, 1963, the trial Court recorded an order in the ordersheet in the following terms: "Let final decree be drawn upon filing non -judicial stamp of requisite value. The commissioner's report shall form part of the decree". Prior to this order Manki Dubev had executed a deed of surrender in respect of certain lands on 1.11.1961, in favour of the appellants. On 13.11.1963, Baijnath Dubey as well executed a deed of surrender in favour of the appellants in respect of certain lands which were the subject -matter of that suit. On the same day Baijnath Dubey executed a deed of gift in favour of Kripanarayan Tiwary (respondent) describing him as his sister's son. Baijnath Dubey the sole plaintiff died on 23.10.1964, and after his death Manki Dubey filed an application for substitution in place of Baijnath Dubey as he happened to be his brother, but no order was passed on that application. Subsequently Manki Dubey executed a will on 15 -11 -1966, in favour of the present appellants regarding his lands. It appears that Manki Dubey died some time after the execution of the said will. The appellants applied for substitution in place of Manki Dubey on the basis of the Letters of Administration granted to them in respect of the said will. The respondent applied for substitution in place of Baijnath Dubey who had executed a gift in his favour and he made a further claim that he and his brothers should be substituted in place of Manki Dubey. The appellants objected to this and claimed to be the heirs of Baijnath Dubey as well. These applications for substitution were heard by the learned Subordinate Judge and he by his order dated the 24lh July, 1967, directed that the appellants would be substituted in place of Manki Dubey (defendant) whereas the respondent would be substituted in place of Baijnatb Dubev (plaintiff). The position thus is that this order was partly in favour of the present appellants and partly against them so far as their prayer for substitution in place of Baijnath Dubey was concerned. Being aggrieved by that part of the order which was against the appellants, they have filed this miscellaneous appeal,

(3.) Learned counsel for the appellants raised two points in this appeal. The first point was that the learned Subordinate Judge had become functus officio after passing the order dated the 28th March 1963, in the sense that there was an order for passing of the final decree and as such he had no jurisdiction to pass an order for substitution of the respondent in place of Baijnath Dubey. The second point was that the deed of gift relied upon by the respondent was not properly proved and it was a fraudulent deed. It will be convenient to deal with these points in the order in which they have been urged.