M.Y.EQBAL, J. - (1.) Heard the learned Counsel appearing for the parties.
(2.) A Partition Suit being Title (P) Suit No. 4 of 2003 was filed by the plaintiff, now deceased, for partition of joint family property. During pendency of the suit, the said plaintiff died leaving behind his widow and a son. The son of .the deceased - plaintiff alone filed an application for substitution without joining his widowed mother. The said application for substitution was allowed and the son was substituted in place of the deceased -plaintiff. After about seven months from the date of death, the present petitioner, who is the widow, filed application for substitution. The said application for substitution has been rejected by the Court below by passing the impugned order on the ground that the substitution petition was filed after the suit stood abated. - - Perhaps, the Court below has not correctly appreciated the law and the procedures of substitution. Firstly, in a partition suit, if the estate/property is represented by any of the shares, then the suit will not abate merely because of death of one of the parties. Secondly, if the suit is abated for non -filing of substitution petition within 90 days, then the heirs/legal representatives have a right to file substitution petition with a prayer for setting aside abatement. It is well settled that if in a substitution petition, prayer for setting aside the abatement has not been made in clear term then it shall be deemed that such prayer is there in the substitution petition. Be that as it may, the petitioner, who is the widow, admittedly inherited the property after the death of her husband. She cannot be deprived of her right from the property on technicalities that substitution petition was not filed before the suit was abated. Taking into consideration the entire facts of the case, the impugned order cannot be sustained in law.
(3.) THIS writ application is, therefore, allowed and the impugned order is set aside.;