BALDEV SINGH AND OTHERS Vs. HIRA AND OTHERS

JUDGEMENT

(1.) Whether proceedings abate because of a failure to implead the legal representatives of one of a number of legal representatives already brought on record after the death of the original party to the proceedings is the ticklish question that has been referred by the learned Single Judge for decision by a larger Bench. Learned Counsel for the parties (who also represented then before the referring Judge) agree that only the question of law on the point of abatement stands referred and the case would, therefore, go back for decision on merits.

(2.) The point at issue arises from the following set of facts which are not in dispute. One Uggar Singh (also referred to in the record as Ujaggar Singh) had effected 7 mortgages of the disputed land and subsequently sold the same by a registered deed dated 4th October, 1954, to Ralla Singh, Hira a reversioner of Uggar Singh brought the suit for a declaration that the mortgages and the sale in favour of Ralla Singh would not affect his reversionary rights as these were without consideration and legal necessity and that the land was ancestral qua him and Uggar Singh. During the pendency of this suit, Ralla Singh died and his five sons Baldev Singh, Sukhdev Singh, Gurdev Singh, Tarlochan Singh and Santokh Singh were brought on record as his legal representatives. The trial Court found that 1/16th share of the land in dispute was non -ancestral and the remaining was ancestral and further that the bulk of the sale consideration was without legal necessity. Accordingly it decreed the suit in favour of Hira plaintiff -respondent qua the ancestral land and dismissed the same qua the non -ancestral part thereof. The five sons and legal representatives of Ralla Singh then filed an appeal before the District Judge who found that the entire land in dispute was non -ancestral and therefore dismissed Hira's suit in toto. Hira respondent then preferred a second appeal to this Court to which the five sons of Ralla Singh deceased were parties as the former's legal representatives and were jointly represented by one counsel. During the pendency of the appeal in this Court one of the five sons, namely, Sukhdev Singh died. The appeal came up for decision before Mahajan J. and the appellant was unaware of the death of Sukhdev Singh, & the fact of his death was not brought to the notice of the Court nor any objection to the appeal proceeding on merits was taken. The legal representatives of Sukhdev Singh had not been brought on the record. The appeal was argued on merits by the Learned Counsel for the parties and by his order dated the 18th of November, 1963, the learned Judge remanded the case to the District Judge to determine which portion of the land was ancestral and which was non -ancestral. Subsequently a review application was moved in this Court that the appeal had abated because of the death of the Sukhdev Singh and therefore the order of remand should be set aside. This review application was dismissed by Mahajan J. as being barred by time. Another application was made before the District Judge in the course of the rehearing of the appeal consequent on remand, for bringing the legal representatives of Sukhdev Singh deceased on the record but this was not done. The District Judge decided the appeal on merits and affirmed the decision of the trial Court. The remaining four sons of Ralla Singh along with the legal representatives of Sukhdev Singh deceased have how come up in the present appeal to this Court.

(3.) Before the learned Single Judge the contention was raised that the earlier decree of the lower appellate Court had become final and the second appeal directed against it had abated by reason of the fact that Sukhdev Singh had died and his legal representatives had not been brought on record. In reply, however, it was contended on behalf of the respondents that Ralla Singh deceased was well represented by his other four sons who had an indentical interest in contesting the appeal and that the estate of Ralla Singh deceased was fully represented in that appeal. The learned Single Judge after referring to a number of authorities noticed that the decision and observations in Muthuraman Chettiar v/s. Adaikappa Chetty & others : AIR 1934 Mad. 730, supported the contention raised on behalf of the respondents. However, finding the principle laid down in that case being slightly at variance with the rule that no decree can be passed against a dead person, the learned Single Judge has referred the point for decision to a larger Bench and that is how it is before us.