BAHELA KUER Vs. GARJAN RAI

JUDGEMENT

(1.) This Civil Revision application by defendant No. 2 (a) is directed against the order of the learned Additional Subordinate Judge, First Court, Arrah, refusing to transpose her to the category of the plaintiff in the suit out of which this application arises.

(2.) Moti Kuer, the deceased plaintiff in the suit, and the petitioner, Bahela Kuer, are the daughters of one Ramyad Rai, whose widow, Mosammat Phulesara Kuer, was defendant No. 2, Ramyad Rai had one more daughter, Usafir Kuer, who died leaving a son, Garjan Rai, defendant No. 1. It appears that, on the 6th of June, 1953, the plaintiff Moti Kuer and her mother, Phulesara Kuer (defendant No. 2), executed a deed of bakhshishnama-cum-surrendernama in favour of defendant No. 1. The plaintiff Moti Kuer, thereafter instituted the suit, out of which the present application arises, for a declaration that the said deed of bakshishnama-cum-surrendernama was invalid and inoperative, and that a compromise decree, in Title Suit No. 78/22 of 1953/54, is also invalid and inoperative and they are not binding on her. Subsequent to the filing of the suit, defendant No. 2 Phulesara Kuer died on the 2nd of September, 1960. On the 12th of November, 1960, the plaintiff Moti Kuer filed an application for substitution of her name as also the name of her sister, defendant No. 2 (a), in place of the deceased defendant No. 2 Phulesara Kuer, as being her heirs and legal representatives. That application was allowed on the 14th of December, 1960, as a result of which the plaintiff Moti Kuer remained on the record as the plaintiff and her sister, Bahela Kuer was added as defendant No. 2 (a) in the suit. The name of the deceased defendant No. 2 Phulesara Kuer was expunged. The newly added defendant No. 2 (a) filed a written statement supporting the claim of the plaintiff. On the 27th of August, 1962, the plaintiff Moti Kuer also died. On the 14th of September, 1962, one Satyadeo Rai (opposite party No. 4 to this Court) filed a petition for his substitution in place of the deceased plaintiff as being an agnate of her husband. On the 10th of December, 1962, defendant No. 1 filed an application objecting to the substitution of opposite party No. 4 and claiming that his sons and heirs were the heirs and legal representatives of the deceased plaintiff. On the 17th of December, 1962, defendant No. 2 (a) Behela Kuer filed an application that she, being the sister of the deceased plaintiff, was her heir and prayed that she may be transposed to the category of the plaintiff in place of the deceased plaintiff. It was held by the learned Additional Subordinate Judge that neither Satyadeo Rai, opposite party No. 4, nor the sons and heirs of defendant No. 1 were the heirs and legal representatives of the deceased plaintiff and that defendant No. 2 (a) was her legal heir. Since, however, she did not make an application for her being substituted in place of the deceased plaintiff within the time allowed by law, the suit abated and, therefore, she could not be transposed to the category of plaintiff. He, accordingly, rejected the prayer of the petitioner and, holding that the suit had abated as a whole, dismissed the same. Being thus aggrieved, the present application has been filed by the defendant No. 2 (a) in this Court.

(3.) Counsel for the petitioner has contended that, on the facts and in the circumstances of the case, it was not at all necessary for the petitioner to make an application for substitution within the period of limitation. It has been contended that the petitioner and defendant No. 1 Garjan Rai could only be the legal heirs and legal representatives of the deceased plaintiff, both of whom were already on the record, though in the capacity of defendants. An argument has been advanced that where all the heirs and legal representatives of a decased party are already on the record in any capacity there is no abatement and no application for substitution need be made within the time allowed by law. The submission is well-founded and must prevail. A Bench of this Court, to Barmeshwar Nath Prasad Singh v. Babu Kuer Rai, First Appeal No. 398 of 1959, D/- 9-8-1963 : (AIR 1964 Pat 116), after examining the various Decisions, has laid down that where all the heirs and legal representatives of a deceased party are already on the record in any capacity there is no necessity for filing an application for their substitution. That being so, the order of the learned Subordinate Judge refecting the application for transposing the petitioner to the category of the plaintiff is based on an error of jurisdiction. There being no abatement of the suit, there was nothing an law to prevent the petitioner from being transposed to the category of the plaintiff on the death of the sole plaintiff.