( 1 ) BY this suit the plaintiff claim a decfee against Smt. Krishna Devi Mehta, sole defendant for the return of gold ornaments or in the alternative for the recovery of Rs. 5 lakhs (the market value of the property ). The plaint proceeds on the following allegations : -.

( 2 ) THAT the plaintiff is the son of late Shri Ramji Lal Mehta. Shri Ramji Lal Mehta, after his death, besides immovable properties left behind the movable properties detailed in Annexure a . That on 8-1-1984 Shri Ramji Lal Mehta made his last will wherein it was provoded as under :-

"i will and devise that after my demise my properties immovable and movable and real and incorporal vest in my son Mr. P. C. Mehta". According to the plaintiff there is a reference of the gold ornaments bequeathed to the plaintiff also in the will dated 3-12-1984 of late Smt. Tuisi Devi Mehta wife of Shri Ramji Lal Mehta, wherein it is stated as under :-

OUR 200 tolas of gold ornaments are lying in trust with sister Smt. Krishna Devi Mehta (defendant ). These be taken back by you (plaintiff, P. O. Mehta)". It is stated that the plaintiff had approached the defendant social times after the dealh of his parents namely-Ramji Lal Mehta and Smt. Tuisi Devi Mehta for the return of gold ornaments but she is not returning the same. Herce this suit. The smt was instituted on 5-1-1987. On 2-2-1987 the plaintiff moved an application under Order 22 Rule 4 c. P. C. (being LA. 67111987) was instituted on 5-1-1987. On 2-2-1987 the plaintiff moved an made parties and the plaintiff may be allowed to continue with the suit. It was stated in the application that the plaintiff had reliably learnt that the defendant had died at London about a month ago (the exact date is not known to the plaintiff ). The right to sue survives in favour of the plaintiff and against the defendant and the legal representatives of the defendant may be brought on the record. One of the legal heirs is stated to be Shri Vishwa Nath Mehta, son of the deceased defendant.

( 3 ) THE application is being contested on behalf of Shri Vishwa Nath Mehta. He has also filed an application under Order 7 Rule 11 and Order 22 of the Code cr Cv)l Procedure seeking rejection of the plaint and dismissal of the suit inter alia on the grounds that the suit was filed on 5-1-1987 whereas the defeadant, Smt. Krishna Devi Mehta died on 31-10-1986 and obviously the suit had been filed after the death of the defendant. The suit against a dead person is a nullity and the name is void and is of no legal effect. It is prayed that the plaint may be rejectcd and the suit dismissed with costs.

( 4 ) IN the rejoinder filed by the plaintiff to the reply filed by Mr. Vishwa Nath Mehta it is stated that the suit of, the plaint is neither a nullity nor void a alleged. The plaintiff was not aware of the death of the defendant at the time of institution of the suit. The plaintiff only learnt by the end of January 1987 from the grandson of the deceased defendant about the death of the defendant According to the information received by the plaintiff tile defendeant died somewhere in London (England) and the proposed legal representatives were not impleaded as defendants by bona fide. mistake. lt is stressed that the suit was validly instituted and was maintainable.

( 5 ) I have heard the learned counsel for the parties and have given my thoughtful consideration to the matter involved.

( 6 ) IN support of his contention the learned counsel for the plaintiff has placed reliance on the following authorities.

( 7 ) R. Rajyalakshmamma v. R. Kannaiah (AIR 1978 Andhra Pradesh 279 (1 ). In this case it was held that the suit filed against the sole defendant who. was dead even by the date of institution of the suit was not void ab initio and could be continued against the legal representatives of the deceased-defendant if their substitution was made within the period of limitation for the suit.

( 8 ) THE next authority relied upon is Ramjeewan v. Chand Moha