RAM CHARANLAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This revision application has been filed against the order passed by the Additional District Judge, Dholpur, dated Dec. 14, 1971. The facts of the case are briefly stated as under :

(2.) Shyamlal, decrees-holder filed an execution application in the Court of Civil Judge, Dholpur, which was dismissed as time barred. An Execution First Appeal was filed by Shyamlal in the Court of District Judge, Bharatpur. The District Judge also dismissed the appeal as time barred but a further appeal to this Court was allowed and the first appeal was remanded to the learned District Judge for a decision thereof on merits after condoning the delay in filing the execution application. Before the remanded appeal could be disposed of by the learned District Judge, the appellant Shyamlal expired on May 8, 1966 leaving behind him his widow Smt. Champa Dei, three sons and a widow and sons of predeceased son, Kedar Nath. Shantilal, one of the sons of deceased decree- holder Shyamlal filed an application on 30th July, 1966 for substitution of the above mentioned legal representatives of his deceased father. Smt. Champa Dei, widow of the deceased also filed another application on Aug. 1, 1966 for (substituting her as the legal representative of the deceased Shyamlal, on the basis of a registered Will, alleged to have been executed by her deceased husband Shyamlal in her favour. The execution case along with these miscellaneous applications was transferred by the learned District Judge, Bharatpur to the learned Additional District Judge, Dholpur for disposal. During the pendency of the proceedings for substitution Stilt. Champa Dei also expired. Learned Additional District Judge held that the application of Shantilal was maintainable for substitution of the legal representatives of the deceased decree-holder Shyamlal but he also held that the registered Will Ex. A-l, produced by Smt. Champa Dei, widow of deceased Shyamlal, was duly proved and as such Shantilal was excluded from inheriting any property of Shyamlal on account of the said Will. Consequently Nathilal and Shree Bhagwan, sons of Shyamlal deceased, were ordered to be substituted as his legal representatives, as their other brother Kedarnath had died during the lifetime of his father, Shyamlal.

(3.) Learned counsel for the petitioner argued that Smt. Champa Dei, who had submitted an application for substitution has herself died and as such no person could be substituted on the basis of her application and the other applicant, Shantilal was already held by the First Appellate Court to have been excluded from inheritance in respect of the property of the deceased Shyamlal on account of the registered Will executed by Shyamlal deceased. Thus according to the learned counsel, the order for substitution was bad in law and the appeal should have been declared to have abated.