PEMI BAI Vs. SANKALI BAI

JUDGEMENT

(1.) A learned Single Judge of this Court was of the view that the observations made by a Division Bench of this Court in Fakira vs. Board of Revenue (1) to the effect that it is well setled that in a case where one of the legal representatives of the deceased appellant or respondent is already on record, even though in another capacity, the proceedings will not abate simply because the other legal representatives are there and an application has not been made in time to bring them on the record, appear to be contrary to what was observed by a learned single Judge of this Court in Bhanwarlal vs. Bhuli (2 ). He has, therefore, referred the following question for determination; "whether in the facts and circumstances of the case, the appeals abate as against the deceased-respondent Phooli Bai and if so, whether the appeals can be proceeded in the absence of Smt. Lehri Bai, daughter of the deceased Phooli Bai ?" These two appeals are before us for answering the above question.

(2.) IT may be stated here that S. B. Civil Second Appeals No. 203 of 1969 and 205 of 1969 arose out of Civil Original Suits No, 44 of 1964 and 45 of 1964. Civil Original Suit No. 44 of 1964 was instituted by the plaintiff Smt. Pemi Bai against the defendants Jethmal and Moolchand Sons of Phoolchand for the recovery of Rs. 2547/- on the basis of a Khata dated April 1, 1964 alleged to have been executed by the defendants Jethmal and Moolchand and Chenmal Son of Visaji, who had died on June 24,1964 and his heirs were the aforesaid two defendants. Civil Original Suit No. 45 of 1964 was instituted by the plaintiff Smt. Pemi Bai on the basis of a Khata dated March 21, 1964 alleged to have been executed by one Chenmal Son of Visaji against the defendants Jethmal and Moolchand as they were legal representatives of deceased Chenmal being in possession of Chenmal's property as also being legatees under a Will executed by Chenmal in their favour, for the recovery of Rs. 2977. 50p. During the pendency of the aforesaid suit, defendant Jethmal died and his heirs were brought on record, who are respondents No. 1/1 to 1/6 in these appeals After trial, the suits of the plaintiff were dismissed. Feeling aggrieved, the plaintiff has preferred these appeals under section 100 of the Code of Civil Procedure.

(3.) BEFORE we proceed to answer the question referred to us, we may state that the facts stated herein are not in dispute. At the risk of repetition, we may state that deceased Jethmal, who was the defendant in the trial court died during the pendency of the suits and alongwith others, Smt. Phoolibai (respondent No. 1/6) was substituted as his legal representative. The legal representatives of Smt. Phoolibai (respondent No. 1/6) are her son Moolchand (respondent No. 2) and her daughter Smt. Lehribai. Moolchand (respondent No. 2) is already on record in another capacity and he is also one of the legal representatives of Smt. Phoolibai, who was substituted as one of the legal representatives of the deceased Jethmal in the trial court and that no application to bring Smt. Lehribai on record as the other legal representative of the deceased Smt. Phoolibai (respondent No. 1/6) was moved in time. It may also be mentioned here that Mool Chand (respondent No 2) who is already on record in another capacity and is one of the legal representatives of Smt. Phoolibai is contesting the appeal and it is on his behalf that the objection has been raised that the appeals have abated as Smt. Lehribai has not been brought on record as one of the legal representatives of Smt. Phoolibai (respondent No. 1/6) within time allowed by law. No allegation, however, has been made either suggesting that the appellant had not made diligent and bonafied enquiries regarding who the legal representatives of deceased Smt. Phoolibai (respondent No 1/6) were or that they had any motive fraudulent or otherwise in not adding Smt. Lehribai as legal representative. On these facts, we are called upon to determine the question that in a case where one of the legal representatives of the deceased-respondent is already on record, even though in another capacity, whether appeal will abate simply because the other legal representative is there and an application has not been made in time to bring him/her on the record ?