P. CHAKRAVARTTI, C. J.

( 1 ) THIS is an application for the substitution of the heirs and legal representatives of a deceased party, made within time and prima facie it was a simple application. In the course of the argument, however, Mr. T. P. Das has raised a point which, in my view, deserves to be dealt with in a judgment instead of being disposed of by a mere order.

( 2 ) THE facts are these : In a partition suit brought with respect to the estate of one Nanda Lal Mullick, a preliminary decree was passed on 1-4-1938. Under that decree, the share of one Madan Mohan Mallik was declared to be 1/7th and another 1/7th was declared to be the share of one Anukul Chanclra Mallik. Anukul, it appears, transferred his share in one of the joint properties to a Marwari lady who has thus come to bo interested in his share along with his heirs and legal representatives, but with that matter we are not here concerned. After the preliminary decree had been made, there was the usual reference to a Commissioner of Partition who made his return in due course. Exceptions to his return were taken by the heirs and legal representatives of Anukul who had, in the meantime, died. The exceptions were rejected by an order of P. B. Mukharji, J. and by a further order the Commissioner's return was confirmed. The heirs and legal representatives of Anukul, who are the petitioners before us, then filed two appeals, one against the order rejecting their exceptions and another against the order confirming the Commissioner's return. Those appeals, being Appeals Nos. 165 and 166 of 1955, are both pending.

( 3 ) SINCE the appeals were filed, there have been a plethora of applications with respect to one matter or another and the carriage of the appeals has been of a rather confused character. We are, however, concerned here with only two of those applications or rather, if we take the two appeals into account, with four. During the pendency of the appeals, one of the respondents, named Madhu Sudan Mallik died on 4-1-1957 and thereupon an application was made for the substitution of his heirs and legal representatives. No orders could be made on that application, since it was an application by only one of the appellants and, therefore, a second application by the rest of them was made in each of the two appeals. By that time, however, the appeals had already abated. The petitioners had, therefore, to make an application for the setting aside of the abatements, which they did, but while those applications were pending, another respondent, namely, Rati Manjari Dasi, died on 1-6-1958. Upon her death, the petitioners misguided themselves into making applications for the, substitution of her heirs and legal representatives in the two appeals, quite overlooking the fact that the appeals had already abated and that till the abatements were set aside, no substitution in the abated appeals could possibly be made. When this was pointed out to the petitioners, they made two fresh applications in each of the appeals, and by those applications they prayed for the substitution of the heirs and legal representatives of Rati Manjari Dasi in the applications already made by them for the setting aside of the abatements of the appeals. It is those four applications which we have before us today.

( 4 ) IT will be convenient from now to speak of one application only and use the singular number. Rati Manjari died, leaving her surviving three sons, namely, Dinanath Mallik, Hansa Gopal Mal lik and Subal Chandra Mallik and four daughters, namely, Dalim Kumari Dasi, Radha Rani Dasi, Ganga Moni Dasi and Monoka Raui Dasi. By their application, the petitioners pray for the substitution in the place and stead of Rati Manjari Dasi of all the sons and daughters, seven in number, left by her, on the basis that her interest has devolved on them all.

( 5 ) THE application has been opposed on behalf of Dina Nath Mallik, one of the sons of Rati Manjari Dasi, to the extent that so far as his s

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