S.N. Modi, J. - (1.) THIS is an appeal by the defendant against the judgment and decree of the District Judge, Ajmer, dated February 20, 1971, whereby he reversed the judgment and decree of the Civil Judge. Beawar, and decreed the suit, in favour of the plaintiffs Jugraj and Mishrilal. During the pendency of the appeal the sole appellant Bhairoonmal as well as one of the respondents Jugraj died, and their legal representatives were brought on the record within the time prescribed. Subsequently, respondent No. 2 Mishrilal also died According to the legal representatives of deceased Mishri Lal, Mishri Lal died on November 27, 1973, whereas, according to the appellants, he died on April 24, 1974, An inquiry was made in order to find out whether Mishri Lal died on November 27, 1973 or April 24, 1874. Both the parties filed affidavits and documentary evidence.
(2.) IT is common ground between the parties that Mishri, Lal died at village Birathia Khurd, a village 10 miles, away from Beawar. Death certificate as well, as various other letters, and entries in the account books were produced on behalf of the legal, representatives of Mishri Lal to show that Mishri Lal died on November 27, 1973 There is thus overwhelming evidence to prove that Mishri Lal, in fact, died on November 27, 1973. The learned counsel for the appellants moved an application for impleading legal representatives of Mishri Lal, in the first instance, on July 1, 1974. The appellants also moved an application for setting aside the abatement on the ground that they came to know about the death of Mishri Lal in the last week of June 1974., One of the appellants, namely, Hukmi Chand appeared in the witness -box and deposed that in the last week of June 1974, he was informed by Hira Lal the Mishri Lal had died about two months ago. I have gone through the statement of Hukmi Chand which is not at all convincing. In the first place, Hira Lal has not been examined to support the version of Hukmi Chand that the former told the latter in the month of June 1974 about the death of Mishri Lal. Hukmi Chand, in his statement, admitted that his house and Mishri Lal's house are situate just close to each other and have a common entrance and in between the two houses, there is a common wall. Both these; houses are situated at Beawar; Looking to the situation of the houses of the parties, it is difficult to believe that Hukmi Chand came to know about the death of Mishri Lal from Hira Lal in the month of June, 1974, The appellants have failed to prove that they were prevented by any sufficient cause to bring on record the legal representatives of Mishri Lal within the prescribed time. The learned counsel for the appellants has argued that since Mishri Lal and Jugraj constituted a joint Hindu family, the legal representatives of Jugraj, namely, Jawari Lal, fully represented the estate of the deceased Mishri Lal. According to him, because, Jawari Lal was on the record the appeal cannot be held to have been abated. There is however substance in the above contention as there is no reliable proof that Jugraj and Mishrilal constituted a joint Hindu family.
(3.) SINCE the appellants have failed to bring on record the legal representatives of deceased Mishri Lal within the time, prescribed, the appeal cannot proceed and deserves to be dismissed as having abated.;