IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.359 of 2009 Keshwar Singh & Ors Versus Kumkum Devi ---------------------------------- 04. 19.12.2011 I.A.No.7455/2009. This interlocutory application has been filed on behalf of the heirs and legal representatives of the deceased petitioner no.1 stating therein that the petitioner no.1. Keshwar Singh died on 28.08.2009 leaving behind his heirs and legal representatives as mentioned in paragraph no.3 of the interlocutory application. This interlocutory application has been filed within the prescribed period of limitation. Learned counsel appearing on behalf of sole opposite party is present. The interlocutory application is allowed and the heirs and legal representatives of the deceased petitioner no.1 Keshwar Singh are substituted in his place after expunging his name from the records of this case. It may be noted that all the heirs have appeared in this revision application by filing Vaklatnama. C.R.No.359/2009. Heard Mr.S.S.Dwivedi, the learned senior counsel appearing on behalf of the substituted heirs of the 2 petitioner no.1 Keshwar Singh and the learned counsel appearing on behalf of the sole opposite party. Mr. S.S.Dwivedi, the learned counsel appearing on behalf of the petitioner, at the outset, has submitted that the petitioner nos. 2 to 4 are not necessary parties of this revision petition and their names may be struck off. The prayer is allowed and the names of the petitioner nos.2 to 4.are struck off from this revision application. By the impugned order, both the courts below have held that the suit has abated for non-substitution of the heirs of the plaintiff Naurang Singh within the prescribed period of limitation and thereafter it has further been held that the right to sue did not survive to the surviving plaintiffs alone and as such the suit has been dismissed as abated. The facts are not in dispute. Kameshwar Singh had filed the T.S.No.77/86 praying therein for setting aside the gift deed dated 01.03.86 standing in favour of the defendants on the ground that the same had not been executed by him and had been obtained by the defendants by practising forgery and fraud. Later on, upon the prayer of the plaintiff Kameshwar Singh, who was unmarried and 3 issueless, his two brothers namely Keshwar Singh and Naurang Singh were impleaded as co-plaintiffs in the suit. Sometime thereafter it appears that the original sole plaintiff Kameshwar Singh as well as the added plaintiff Naurang Singh died and a petition for substitution was filed by the remaining plaintiff Keshwar Singh on 13.07.1995 praying for substitution of the heirs and legal representatives of the deceased plaintiffs. The defendants raised objection by asserting that the date of death as mentioned in the substitution petition regarding the added plaintiff Naurang Singh was wrong and in fact he died on 18.08.1988 and not on 10.05.95 as asserted in the substitution petition. The trial court heard the substitution matter, considered the evidence led by the parties and came to the finding that Naurang Singh in fact died on 18.08.1988 and not on 10.05.1995 and on that basis it was held that the substitution petition was barred by limitation and dismissed accordingly. It was also held that due to the abatement of the suit for non-substitution of the heirs of the deceased co-plaintiff Naurang Singh, the right to sue did not survive to the surviving plaintiff alone and as such 4 the entire suit was also dismissed for that reason for want of competence. In appeal, the appellate court has affirmed the finding regarding the date of death of the co-plaintiff Naurang Singh and has also concurred with the trial court that the right to sue did not survive to the surviving plaintiff alone resulting in the dismissal of the whole suit as incompetent. The learned senior counsel has submitted that in view of the admitted facts, it was Kameshwar Singh who originally filed the suit assailing the gift deed standing in favour of the defendants and later on, at the instance of Kameshwar Sigh his two brothers namely Keshwar Singh and Naurang Singh had been added as co-plaintiffs. It has been urged by the learned senior counsel that even accepting the objection regarding the date of death of respondent Naurang Singh to be 18.08.1988 and the date of death of Kameshwar Singh to be 15.08.94, which had not been disputed, it is at least clear that Naurang Singh died during the lifetime of the original plaintiff Kameshwar Singh who was his brother. It has been further contended that in any view of the matter after the death of 5 Kameshwar Singh, unmarried and issueless, his brother Keshwar Singh would be entitled to inherit his estate and as such the right to sue will survive to Keshwar Singh even in absence of the heirs of Naurang Singh and the finding by both the courts below that the right to sue will not survive to the co-plaintiff Keshwar Singh alone is not correct. It has also been the contention of the learned senior counsel that the deceased co-plaintiff Naurang Singh was not admittedly the donor in the gift deed in question and there is nothing in the plaint to establish the fact that he was in any manner connected with the execution of the said gift deed, the validity of which was the main issue to be decided in the suit. Thus the learned senior counsel has submitted that the dismissal of the suit as incompetent on the basis of the abatement with regard to the heirs of the co-plaintiff Naurang Singh is not valid and legal. Per contra, the learned counsel appearing on behalf of the sole opposite party has contended that the interest of Kameshwar Singh as well as his two brothers who had been subsequently impleaded as co-plaintiff is one and the same and therefore the abatement of the suit 6 with regard to the co-plaintiff Naurang Singh will have the impact of making the whole suit in competent and as such there is no error or illegality in the impugned orders of both the courts below. After hearing the parties and perusing the impugned order, it appears that originally the suit was filed Kameshwar Singh alone challenging the gift deed executed by him alleging the same to have been obtained by the defendants by perpetrating fraud and committing forgery. The deceased Naurang Singh was added as co-plaintiff, later on, at the instance of the original plaintiff Kameshwar Singh alongwith his another brother Keshwar Singh who is the petitioner (now deceased and substituted by his heirs) in this revision application. In view of the fact that admittedly Kameshwar Singh was unmarried and issueless, then, in any view of the matter, his estate was also inherited by his brother Keshwar Singh and was represented by him in the suit. It cannot thus be held that the remaining plaintiff Keshwar Singh cannot pursue this suit as against the defendants assailing the gift deed alleged to have been executed by Kameshwar Singh alone. Both the courts below have not considered the legal 7 aspect correctly and thereby has committed error of jurisdiction in holding that the suit was liable to be dismissed as incompetent after its abatement against the heirs of the co-plaintiff Naurang Singh. Accordingly, the orders passed by both the courts below are hereby set aside and this revision application is allowed. The suit shall proceed with Keshwar Singh as plaintiff on record. As the suit is of the year 1986, the court below is requested to take up the proceeding on priority basis and dispose of the same preferably within six months from the date of receipt/production of a copy of this order. Learned counsel on behalf of both the parties have assured this Court that they will fully cooperate in the disposal of the suit within the aforesaid period without taking unnecessary adjournments. Nitesh ( V. Nath, J.)