Singh & Ors Vs. Naga Singh & Ors  Insc 342 (13 August 2002)
Shah & Bisheshwar Prasad Singh. Bisheshwar Prasad Singh, J.
learned counsel for the parties.
this appeal the appellants have impugned the order of the High Court of
Judicature at Patna in LPA No. 829 of 1998 dated 23.11.2000, whereby a division
bench of the High Court affirmed the order of a learned Single Judge in First
Appeal No.165 of 1976 dated 05.02.1998, dismissing the application for
substitution of legal representatives of appellants 1(d) and 1(e).
Consequently, the first appeal was also dismissed as being incompetent in the
absence of the legal representatives of the aforesaid appellants.
appellants and the respondents herein are the descendants of one Shri Bhukhalal
Singh, who had two sons namely, Ramnandan Singh and Ramautar Singh. According
to the appellants, the two branches of the family separated on 05.09.1947 and
thereafter managed their affairs separately. The branch of Ramnandan Singh had
acquired some more properties after partition and prospered. Out of sheer
greed, Naga Singh son of Ramautar Singh belonging to the other branch filed a
partition suit for partition of the properties left by his grandfather Bhukhalal
Singh. In the said suit Ramnandan Singh was arrayed as defendant No.1, his
father Ramautar Singh as defendant No.2 and the three sons of Ramnandan Singh
as the remaining defendants. During the pendency of the suit Ramautar Singh,
father of the plaintiff died and his legal representatives were brought on
record. The suit was ultimately decreed on 22.12.1975. The appellants herein
preferred an appeal to the High Court against the decree passed by the Trial
Court which was registered as First Appeal No.165 of 1976. On 20.12.1978
appellant No.1, Ramnandan Singh died. His legal representatives who were
brought on record included his three sons who were already on record as party
appellants, his wife Tetari Keur, and his four daughters who were substituted
as appellant Nos.1(a) to 1(e).
to the appellants on 26.04.1996, 27.05.1996 and 21.12.1996 respectively
appellant Nos.1(d), 1(a) and 1(e) died. An application was filed to bring on
record the legal representatives of the aforesaid deceased appellants. It may
be noticed that appellant Nos.1(d) and 1(e) were the daughters of Ramnandan
Singh while appellant No.1(a) was the wife of Ramnandan Singh, who were brought
on record as legal representatives of Ramnandan Singh along with the sons of Ramnandan
Singh who were already on record as appellants in the appeal.
application for substitution was contested by the respondents who contended
that the appellant No.1(d) and 1(e) had died as early as on 10.12.1982 and
02.10.1993. The counter affidavit filed on behalf of the respondents stating
these facts does not appear to have been challenged by the appellants by filing
a rejoinder. However by an order dated 12.09.1997 the substitution as regards
appellant No.1(a) was allowed, but the application to bring on record the legal
representatives of appellant Nos.1(d) and 1(e) was deferred for consideration
along with the appeal.
appeal came up for hearing before the learned Judge who by order dated
05.02.1998 refused to allow the application for substitution to bring on record
the legal representatives of the appellant Nos.1(d) and 1(e). The learned Judge
observed that the facts mentioned in the application for substitution had been controverted
by the respondents, and since no rejoinder was filed, there was no
justification for condoning the delay and setting aside the abatement, and the
appellants were guilty of making wrong statements before the Court. Accordingly
he dismissed the application for substitution of the legal representatives of
respondents 1(d) and 1(e) and consequently dismissed the First Appeal itself
holding that the appeal could not be proceeded with in the absence of the legal
representatives of appellants 1(d) and 1(e). The judgment and order of the
learned Judge has been affirmed in appeal by a division bench in LPA No.829 of
for the appellants submitted that the High Court ought to have condoned the
delay in filing the application for substitution of the legal representatives
of deceased appellants 1(d) and 1(e) having regard to the interest of justice.
It is further submitted that though the appellants were remiss in not producing
relevant material disputing the dates of death given by the respondents, they
were able to obtain the death certificate issued by the Gram Sevak later. On
the basis of the death certificates granted by the Gram Sevak they filed a
review application before the High Court which was unfortunately dismissed. It
was also submitted that the estate of Ramnandan Singh was adequately
represented inasmuch as his three sons were already on record as the
appellants. Ramnandan Singh was himself appellant No.1, and upon his death the
female members of the family were brought on record. In the suit itself the
female members were not necessary parties though it became necessary for them
to be brought on record upon the death of Ramnandan Singh, father of the
have given the matter our serious consideration. The case of the appellants in
the appeal is that there was a previous partition and a second partition is not
permissible. It is not in dispute that all the coparceners were parties in the
suit, and earlier whenever deaths took place the legal representatives were
brought on record by the appellants. All the three deceased appellants were
female members of the family, and while substitution of the legal
representatives of the mother Tetari Kuer was allowed, substitution of the
legal representatives of appellants 1(d) and 1(e) was refused.
notice at this stage that the legal representatives of the deceased Ramnandan
Singh, and his wife Tetari Kuer, appellant No.1(a) may be the same persons, and
substitution of the legal representatives of Tetari Kuer, appellant No.1(a) has
there is a serious dispute as to the dates of death of respondents No.1(d) and
1(e), we are of the considered view that in the facts and circumstances of this
case, the application for substitution of legal representatives of the
aforesaid appellants should not have been rejected, having regard to the fact
that all the contesting parties were on record and these appellants were
brought on record only as legal representatives of appellant No.1 who had died
during the pendency of the appeal. Having regard to the facts of the case and
the interest of justice, the High Court ought to have condoned the delay, if
any, in filing of the application for substitution and could have compensated
the respondents by award of cost. This we consider appropriate, having regard
to the interest of justice. The parties have litigated since the year 1974 and
it is only fair that there should be adjudication on merit.
not consider it necessary to express any opinion on the question whether in the
facts and circumstances of the case, the appeal would abate as a whole in the
absence of legal representatives of appellants 1(d) and 1(e).
result this appeal is allowed and the application filed for substitution of
legal representatives of appellants 1(d), Dharohar Devi and 1(e), Deojhari Devi
is allowed. The abatement, if any, is set aside. The appellants shall pay to
the respondents a sum of Rs.5000/- (Rupees five thousand) by way of cost.