Ram Sarup vs Chandra Bhan

V.K. Bali, J.—Plaintiff being aggrieved of the judgment and decree passed by the learned trial Court so confirmed in appeal by the District Judge, Rohtak whereby his suit was held to have abated inasmuch as the legal representatives of defendant No. 7 i.e. Smt. Chandni had not been brought on record within stipulated time, has filed this appeal. Brief facts giving rise to this appeal may first be enumerated.

Plaintiffappellant is the sister's son of Nand Lal, the original owner of the property in dispute. He filed a suit against defendants No. 1 to 6 by basically contending that under law of Succession, he alongwith his sister Smt. Chandni was entitled to the estate of Nand Lal and respondents No. 1 to 6 have only set up a Will, with a view to defeat the right of the plaintiff and that the said Will is a forged and fictitious document. Admittedly, Suit. Chandni died on January 29, 1971 and respondents No. 1 to 6 filed an application on October 27,1973 in the trial Court where the prayer was to dismiss the suit as having abated for nonimpleading of the legal representatives of Smt. Chandni. The plea of aforesaid respondents prevailed with the Courts below and the suit was held to have abated in total. Aggrieved, the plaintiff filed an appeal against the order aforesaid but he was unsuccessful in appeal as well.

Mr. Sharma, learned counsel for the appellant forcefully contended that the Learned Courts below have not at all applied their mind to the facts of the case and inasmuch as Chandni was not a necessary party to the litigation nor any relief was claimed against her, her death could not entail dismissal of suit as having abated.

Mr. Katyal contests the position aforesaid and maintains that Smt. Chandni was a necessary party.

After hearing the learned counsel for the parties, I find sufficient force in the contention of Mr. Sharma, learned counsel for the appellant. Plaintiff had challenged the Will said to have been executed by Nand Lal in favour of respondents No. 1 to 6. If the suit was to be decreed, the benefit of the said judgment would have been available to all those who are entitled to succeed in the estate of Nand Lal. Even one of the successors without impleading others could successfully maintain the suit. Although it is true that on declaration that the Will was a forged document or that Nan Lal had not executed the Will the plaintiff alone would not succeed to the entire estate but it cannot, as a necessary corollary, be held that all those, who were to succeed to the estate must have been made a party. As has been mentioned above, no relief was claimed against Smt. Chandni and for that reason as well, her death could not result into abatement of the suit.

For the reasons aforesaid, this appeal is allowed. The judgment and decree passed by the learned trial Court and so affirmed by the Appellate Court are set aside and the case is remanded to the trial Court Rohtak to start the proceedings which were available immediately before filing of the application which was filed by defendants No. 1 to 6. There shall be no order as to costs. Parties, through their counsel, are directed to appear in the trial Court on May 29,1991.