cites: 572082

Ram Saran Ahir And Ors. vs Prithvi Nath Singh And Anr. on 13 April, 1951

6. Now, I shall take up the question as to whether on the death of Indrajot Kuer, mother of the first two plaintiffs who died leaving, besides the two other plaintiffs, had also a daughter, namely, Malti Devi appellant No. 3, who has joined in this appeal as an appellant along with her brothers. The contention raised on behalf of the appellant as a preliminary objection which has been noticed earlier, is based upon the decisions of this Court, in the case of Ram Saran Ahir v. Prithvi Nath Singh (AIR 1952 Pat 267) and Mrs. Gladys Coutts v. Dharkhan Singh (AIR 1956 Pat 373) where it was held that the question of abatement of an appeal could be decided only by the court where the abatement had taken place and where a decree had been passed by the court of appeal below in ignorance of the death of the respondent, the proper procedure to decide the question of substitution if an application is filed for setting aside the abatement was to set aside the decree of the lower appellate court and send the application along with the appeal in accordance with law. The view of this Court which is fully established is based on the principle that in the absence of the left out heirs, the question of abatement of the appeal arises and the appeal in the absence of those heirs could not proceed. This is the established view of this Court no doubt, but the situation of the present case is entirely different. It has been said earlier that the left out heir of Indrajot Kuer, namely, her daughter Malti Devi has already joined hands with her brothers as an appellant in this Court. In the two petitions, one filed by the appellants in this Court on 28th November 1972, seeking permission to continue her also the appeal as an appellant and the other filed under Rule 5, Clause (b) of Chapter VI of the Rules of this Court on 19-1-1973, neither the heirs on the record nor Malti Devi made any grievance that the interest of Malti Devi was not fully represented by the remaining plaintiffs on the record or that there was any conflict between the interest of Malti Devi and her brothers.

Patna High Court Cites 1 - Cited by 12 - Full Document

Mrs. Gladys Coutts vs Dharkhan Singh And Ors. on 3 May, 1955

6. Now, I shall take up the question as to whether on the death of Indrajot Kuer, mother of the first two plaintiffs who died leaving, besides the two other plaintiffs, had also a daughter, namely, Malti Devi appellant No. 3, who has joined in this appeal as an appellant along with her brothers. The contention raised on behalf of the appellant as a preliminary objection which has been noticed earlier, is based upon the decisions of this Court, in the case of Ram Saran Ahir v. Prithvi Nath Singh (AIR 1952 Pat 267) and Mrs. Gladys Coutts v. Dharkhan Singh (AIR 1956 Pat 373) where it was held that the question of abatement of an appeal could be decided only by the court where the abatement had taken place and where a decree had been passed by the court of appeal below in ignorance of the death of the respondent, the proper procedure to decide the question of substitution if an application is filed for setting aside the abatement was to set aside the decree of the lower appellate court and send the application along with the appeal in accordance with law. The view of this Court which is fully established is based on the principle that in the absence of the left out heirs, the question of abatement of the appeal arises and the appeal in the absence of those heirs could not proceed. This is the established view of this Court no doubt, but the situation of the present case is entirely different. It has been said earlier that the left out heir of Indrajot Kuer, namely, her daughter Malti Devi has already joined hands with her brothers as an appellant in this Court. In the two petitions, one filed by the appellants in this Court on 28th November 1972, seeking permission to continue her also the appeal as an appellant and the other filed under Rule 5, Clause (b) of Chapter VI of the Rules of this Court on 19-1-1973, neither the heirs on the record nor Malti Devi made any grievance that the interest of Malti Devi was not fully represented by the remaining plaintiffs on the record or that there was any conflict between the interest of Malti Devi and her brothers.

Patna High Court Cites 6 - Cited by 17 - S K Das - Full Document

Dolai Molliko & Ors vs Krushna Chandra Patnaik & Ors on 23 March, 1966

In recent years the previous view has undergone a substantial change by the two decisions of the Supreme Court, in the cases of Dolai Maliko v. Krushna Chandra Patnaik (AIR 1967 SC 49) and Mahabir Prasad v. Jage Ram (AIR 1971 SC 742) where the Supreme Court settled the matter beyond all controversy that in a proceeding where a party dies and one of the legal representatives is already on the record, it is only necessary that it should be described by an appropriate application that he is also on the record as an heir and legal representative. Even if there are other heirs and legal representatives and no application impleading them is made the proceeding will not abate on that account unless the interest of the left out heirs was not being represented by the legal representatives already on the record.

Supreme Court of India Cites 5 - Cited by 41 - K N Wanchoo - Full Document

Mahabir Prasad vs Jage Ram & Ors on 6 January, 1971

In recent years the previous view has undergone a substantial change by the two decisions of the Supreme Court, in the cases of Dolai Maliko v. Krushna Chandra Patnaik (AIR 1967 SC 49) and Mahabir Prasad v. Jage Ram (AIR 1971 SC 742) where the Supreme Court settled the matter beyond all controversy that in a proceeding where a party dies and one of the legal representatives is already on the record, it is only necessary that it should be described by an appropriate application that he is also on the record as an heir and legal representative. Even if there are other heirs and legal representatives and no application impleading them is made the proceeding will not abate on that account unless the interest of the left out heirs was not being represented by the legal representatives already on the record.

Supreme Court of India Cites 5 - Cited by 132 - J C Shah - Full Document

Harbans Singh And Ors. vs Rajpaltan Singh And Ors. on 5 December, 1974

7. The third heir, namely, Malti Devi of the deceased respondent in the court below has not made out the case of any conflict of interest or non-representation of her interest by the remaining heirs and legal representatives already on the record of the case. In my opinion, therefore, it is not a case where the title appeal in the court below had become incompetent or had abated and could not proceed in the absence of any step for substitution. It seems obvious to me that in cases where a party dies during the pendency of any appeal and his estate is represented by some of his heirs already on the record, then the appeal could successfully proceed although steps for bringing the left out heirs are not taken unless these heirs might have a different and independent case than of the heirs on the record. In cases, however, where the question of abatement is apparent, the question of setting aside the same has got to be decided by the court concerned. A similar view has already been taken by me in the case of Harbans Singh v. Rajpaltan Singh (AIR 1975 Pat 184) although there the circumstances were different.

Patna High Court Cites 5 - Cited by 4 - Full Document

Satnam Singh And Anr. vs Mohinder Singh And Ors. on 28 May, 1974

8. Mr. Devendra Prasad Sharma, however, also placed reliance upon Single Judge decision of the Delhi High Court in the case of Satnam Singh v. Mohinder Singh (AIR 1975 Delhi 104) laying down the general proposition that if one of the respondents had died during the pendency of an appeal not known to the court and if the judgment was delivered in ignorance of this fact, the judgment should be treated as non-existent and the appeal be allowed to be reheard. This case is apparently distinguishable as in that case the respondent Amarnath, who had died was not represented by any of his heirs or legal representatives on the record, and the decree, therefore, was certainly passed against a dead person. For all these reasons I would overrule the preliminary objection raised on behalf of the respondent regarding the incompetency of the appeal and I do not find that in this case the matter should be remitted back to the court of appeal below for deciding the question of abatement at all.

Delhi High Court Cites 5 - Cited by 5 - Full Document

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