A final decree passed in the absence of the widow of the deceased plaintiff is void and that his widow could be substituted in his place.

R.K.Choudhary, J.

1. This is an appeal by defendants 84 and 85, and it arises out of a final decree passed in a partition suit. The suit for partition being Partition Suit No. 30 of 1943, was instituted by the plaintiffs-respondents first party in the Court of the Subordinate Judge at Muzaffarpur, and a preliminary decree was passed on the 12th of March, 1946. It appears that, after the arguments were over in the Court below and before the preliminary decree was passed, one of the plaintiffs, namely, Ramautar Singh, died on the 1st of March, 1946. The death of this plaintiff was not brought to the notice of the Court, and in the preliminary decree, that was prepared by the trial Court, the name of the said deceased plaintiff continued. He had left certain heirs and legal representatives who were already on the record of the case as co-plaintiffs in the suit. He had also left a widow, Mossammat Deorati Kuer, who, however, was net a party to the suit and was not brought on the record by way of substitution in his place. Thereafter, a final decree for partition was passed on the 22nd of December, 1949, and a separate takhta was carved out for all the plaintiffs of the partition suit.

The appellants, being dissatisfied with the takhta carved out for them, filed the present appeal in this Court impleading the widow of the deceased plaintiff Ramautar Singh and other remaining members of his joint family as respondents 1 to 7. They also filed an application in this Court for substitution of the widow of the said deceased plaintiff and a Division Bench of this Court on 8-1-1951, passed an order that the substitution petition be kept on record and that no further action was necessary. Mossammat Deorati Kuer, the widow of the deceased plaintiff, along with the other heirs and legal representatives of her deceased husband, appeared in this appeal by filing vakalatnama in November, 1952.

2. The appeal came up for hearing before Rai and U. N. Sinha, JJ. It was contended before their Lordships on behalf of the appellants that, as the widow of the deceased plaintiff Ramautar Singh had not been substituted in the- proceedings for the preparation of the final decree, the final decree was passed in favour of a dead person and was thus void and ineffectual and was liable to be set aside. This contention was overruled by Raj, J., who held that the decree passed in absence of the widow of the deceased plaintiff Ramautar Singh was not void and that his widow could be substituted in his place. He therefore, modified the final decree passed by the trial Court only to this extent that the name of Ramautar Singh was directed to be struck off and in his place the name of his widow, Mossammat Deorati Kuer, was directed to be inserted along with the other heirs and legal representatives of Ramautar Singh, who were already parties to the decree. Accordingly, the allotments made by the trial Court in the preliminary decree were allowed to stand and the final decree passed by the Court below was affirmed in other respects. U. N. Sinha, J., however, took a different view, and held that the non-substitution of the widow of Ramautar Singh before the final decree was passed affected the validity of the decree and it could not be maintained. He, therefore, allowed the appeal, and set aside the decree of the trial Court.

3. On difference of opinion between the two learned Judges on the point in question that fell to be decided in the case, this case has been placed before me for decision under Clause 28 of the Letters Patent of this Court.

4. It is too well established principle of law that a suit does not abate if a party dies after the passing of the preliminary decree. Counsel for the parties have not challenged this proposition of law, and, therefore in the present case the suit did not abate on account of the death of the plaintiff Ramautar Singh. Mr. Shreenath Singh, appearing for the appellants, has, however, contended that, the widow of Ramautar Si