The right to sue survives on the death of the original plaintiff and the heir or heiress can make an application in the suit, irrespective of whether the original plaintiff had any right, title, and interest in the suit properties.

Kalyan Jyoti Sengupta, J.

This appeal is directed against the Judgement and order dated 15th December, 1990 passed by the learned Assistant District Judge, Tamluk in Title Appeal No. 69 of 1989. The appeal in the ld. Appellate Court below was preferred against the judgement and decree dated 10th August, 1989 passed by the ld. Munsif in the 1st Court, Tamluk in Title Suit No. 187 of 1984. The ld. Munsif dismissed the aforesaid Title Suit while dealing with an application made by the respondent no. 1 herein for bringing herself as a plaintiff upon the death of the original plaintiff in the Title Suit. The ld. Munsif while dismissing that application held that the application made by the respondent no. 1 for bringing herself as a party plaintiff striking out the name of the original plaintiff on her death was not maintainable. It was further held by the ld. Munsif that on death of the original plaintiff as there was no lawful application for substitution of the original plaintiff the suit had abated wholly. Accordingly the suit was liable to be dismissed. The ld. Munsif on the date of dismissal of that application made by the respondent no. 1, dismissed the suit.

2. Against that order of dismissal of the application made by the respondent no. 1, the respondent no. 1 preferred the appeal before the ld. Court below. The ld. Court below allowed the appeal and set aside the order of dismissal and further directed the ld. Trial Judge to allow the application made by the respondent no. 1 for substitution of the respondent no. 1 in place and stead of the original plaintiff since deceased. It has been held by the ld. Appellate Court below that order of dismissal of the suit is wholly illegal as while deciding the question of abatement and further application for substitution, the ld. Munsif should not have dismissed the suit altogether. The ld. Appellate Court below was of the view that the application made by the respondent no. 1 is in real sense an application for substitution in place and stead of the deceased original plaintiff. It has been further observed by the ld. Appellate Court below that prayer of the application of the respondent no. 1 was not happily couched.

3. Mr. Mukherjee, the ld. Senior Advocate appearing for the appellant, submits that the ld. Appellate Court below ought not to have interfered with the order passed by the ld. Munsif so far as it relate to his decision holding the suit had abated. Mr. Mukherjee submits very fairly that the order of dismissal of the suit itself by the ld. Munsif is not justified under the law and as such the order of the ld. Appellate Court below setting aside the order of dismissal of the suit is acceptable. Mr. Mukherjee submits that I should interfere with the order of the ld. Appellate Court below so far as it relate to his decision that the suit had not abated and further the application made by the respondent no. 1 should be allowed by the ld. Munsif and consequently prayer for substitution of the respondent no. 1 should be allowed.

4. It is further submission of Mr. Mukherjee that the application made by the respondent herein before the ld. Munsif for amendment of the plaint in view of death of the original plaintiff. There was no application for substitution so to say, within the period of 90 days. In effect there was no application for substitution. Therefore, the ld. Munsif has rightly rejected the said application holding the suit has abated. He points out that even assuming for argument sake that the application made before the ld. Trial Judge was an application for substitution and recording death of the original plaintiff and substitution, then the respondent has no locus standi as she has claimed her right in terms of alleged will. He submits further that there is no record or document to show that probate has been granted to the said will. He further submits that nothing has been mentioned in the petition who are the legatees and/or executor in, the said will. On the