MUSAMMAT KUMARI Vs. SUNDAR PANDE

JUDGEMENT

(1.) THIS is an application made in First Appeal No. 228 of 1916. The Court is asked to make a declaration that the suit has abated. The circumstances as stated by the learned advocate on behalf of the appellant are as follows:The title of the plaintiff in the suit was that the property was the stridhan of her step-mother, Musammat Moti Rani, and that she inherited the property upon the death of this lady. She consequently asked for a declaration of her title and possession. The defendant preferred this appeal. During its pendency the sole plaintiff died. The appellant now contends that even on the assumption that the deceased plaintiff inherited the property from her step-mother, who held it as stridhan, upon the death of the plaintiff the property passes to the next heirs of Musammat Moti Rani s husband, the plaintiff only having a life-interest. In support of this contention he refers to the Privy Council ruling in Sheo Shankar Lal v. Bebi Sahai (1903) I.L.R.25 All., 468, and also the case of Sheo Partab Bahadur Singh v. The Allahabad Bank (1903) I.L.R., 25 All., 476. It would appear that, assuming the facts stated to be correct, the title of the deceased plaintiff came to an and with her death, and that the only persons who could now carry on the suit would be the reversioners to Musammat Moti Rani s husband, who the defendants themselves claim to be. Notice of this application has been served on the husband of the deceased plaintiff. He does not appear to show cause, nor has he made any application to be brought on to the record in the place of his deceased wife. We do not think, however, that we have any power to declare that the suit has abated. Order XXII, Rule 4, provides that where a sole defendant dies and the right to sue survives, the court upon an application made in that behalf shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit, Sub-clause (3) of the same rule provides that where within the time limited by law no application is made under Sub-rule (1) the suit shall abate as against the deceased defendant. Applying Rule 11 we must substitute in Rule 4 the word "respondent" for "defendant" and the word "appeal" for "suit". In Sub- clause 3 again the word "appeal" must be substituted for the word "suit". We do not think that under this rule we have any power to declare that a suit, as distinct from an appeal, has abated in a case in which there has been a decree already made before the death took place. As we have stated above, however it would appear that if the facts stated to us be correct, it would now be impossible for any one to execute the decree obtained by the deceased plaintiff We think that under the circumstances all we can do is to direct that, having regard to the events which have happened, the appeal should be struck out of the file of pending cases. As explained by what we have said above we reject the application.