DARSHAN DAS Vs. BIKRAMAJIT RAI

JUDGEMENT

(1.) This is an appeal by the plaintiff under the Letters Patent arising out of a suit for recovery of possession by avoiding a deed of gift executed by the last mahant in 1919 in favour of one Mt. Subhagi. Mt. Subhagi transferred the property gifted to her under a sale-deed dated the 15 October, 1919, in favour of defendants 2, 3, 5, 6 and the father of defendant 4. The Court of first instance dismissed the suit on the ground that the plaintiff had failed to prove that he was the mahant, though it found that the property was trust property and the transfer was invalid. On appeal to the District Judge the suit was decreed.

(2.) It, however, appears that before the appeal came on for hearing before the District Judge, Gobind Rai, one of the defendants-respondents, died leaving his son Ambica alive. No application for substitution was made, and in fact the attention of the Appellate Court was not drawn to the fact of his death at all. The appeal was allowed as against all the defendants-respondents.

(3.) On second appeal to the High Court a learned Judge of this Court held that the whole appeal had abated against all the respondents inasmuch as the heir of Gobind Rai had not been brought on the record. He accordingly restored the decree of the Court of first instance.