K.D.SHARMA, J. - (1.) THIS is a civil miscellaneous appeal by Sohan Lal under Order 43 Rule 1(u), CPC against the order of the Civil Judge, Bikaner, dated 29th April, 1977, where by Multan Chand respondent was impleaded legal representative of Mst. Magli deceased plaintiff and the suit was remanded to the court of the Munsiff Bikaner, for trial after reversing the judgment and decree of the learned Munsiff dated 13th April, 1976.
(2.) THE relevant facts out of which this miscellaneous appeal are briefly stated as follows : Mst. Magli deceased instituted a suit against Sohan Lal appellant in the court of the Munsiff. Bikaner, for a declaration that the gift -deed executed by her and got registered on 21st May, 1973 in favour of the appellant being ab initio null and void may be revoked It was alleged in the plaint that Mst. Magli was not keeping good health after the death of her husband. Sohan Lal appellant was sympathetic towards her and zradually succeeded in exerting undue Influence on her mind. Under his influence she gifted away her property to him without any consideration and in lieu of his promise to take her and her husband's ashes to Haridwar for performance of certain religious rites or ceremonies. It was further averred in the plaint that Mst. Magli was kept in dark that the deed which she was going to execute in favour of Sohan Lal was a gift -deed. According to her, Sohan Lal made her believe that the deed was an adoption deed. During the pendency of the suit, Mst. Magli plaintiff died on 14th November, 1975. After her death, Multan Chand respondent presented an application in the court of the learned Munsiff for being impleaded as her legal representative as she had willed away her entire property to him on 16th May, 1974. Multan Chand filed a copy of the will also along with his application. The will was got registered in his favour on 29th May, 1974. Notice of this application was given to Sohan Lal appellant that the right to sue did not survive after the death of Mst. Magli plaintiff, because in the absence of any express reservation of a power of revocation in the gift -deed, Mst. Magli donor had no right to revoke the gift -deed during her life -time and as Mst. Magli had no power of revocation at all, she ceased to have any right, title or interest in the property after divesting herself of her title in favour of the donor. It was further contended by the appellant that Mst. Magli was not owner of the property after (he had valid) gifted it away to the appellant and so no question of making a valid will of the properties by he in favour of Multan Chand could legally arise. The learned Munsiff rejected the application of Multan Chard and held that the tight to sue did not survive after the death of the sole deceased plaintiff, i.e. Mst. Magli and that Multan Chard was not her legal representative on the basis of the will executed by her in his favour. The Munsiff, therefore, was of the view that the suit abated on the death of the plaintiff and dismissed it accordingly. Aggrieved by the order of the learned Munsiff, Bikaner, Multan Cnand preferred an appeal in the court of the District Judge, Bikaner. It appears that the appeal was transferred to the court of the Civil Judge, Bikaner, who, after hearing the parties, came to the conclusion that the right to sue survived and so he accepted the appeal, revised the order of the learned Munsiff and sent the case book to the lower court for trial after in pleading Multan Chand as legal representative of the deceased plaintiff. As against this order, Sohan Lal has come -up in appeal to this Court under Order 13 Rule 1(u), CPC as stated above.
(3.) I have perused the orders of the courts below and heard Mr. Guru Prakash, learned Counsel for the appellant, and Mr. H.D. Khatri and Mr. Parmatma Sharan, Advocates appearing on behalf of the respondent. Firstly, it was contended by Mr. Guru Parkrsh appearing on behalf of the appellant that the order of the learned Munsiff declaring the suit to have abated did not amount to a decree under Section 2, CPC, nor was it an order appealable under Order 43 Rule 1 CPC and as no appeal could be preferred to the lower appellate court. Mr. H.D. Khatri, learned Counsel for the respondent, on the ether hand, urged that the decision of the leaned Mursiff that the right to sue did not survive after the death of sole plaintiff Mst. Magli was an adjudication, which conclusively determined the respondent's right in regard to the matter in controversy in the suit and it was, therefore, a decree and was appealable.;