The legal representatives of a deceased defendant can be substituted under Section 153 of the Code of Civil Procedure, even if the suit was filed against a dead person.

1. One Pakhar Singh made a number of sales of separate parcels of land in favour of different vendees on different dates. Two such alienations were made on 8th of August 1959 and 24th of August 1959. The former was with regard to 14 Kanals 1 Marla of agricultural land situate in village Ali Chak in district Jullundur for Rs.1400 and the other regarding 8 Kanals in the same village for Rs.800. Both these sales were made in favour of Guftat Mal. On 30th of January, 1963, Darshan Singh and two others, who were the sons of Pakhar Singh, brought a suit in forma pauperis challenging the various alienations including the two mentioned above made by their father for a declaration that the said alienations were without consideration and legal necessity and, consequently, not binding on the reversionary rights of plaintiffs, as the properties alienated were ancestral ones. In this suit Guftar Mal Was impleaded as defendant No.4. While the enquiry as to the pauperism of the plaintiffs was proceeding, on 8th of June 1963, the plaintiffs filed an application to the effect that Guftar Mal was already dead when the suit had been filed by them and that fact was not within their knowledge. It was prayed that his sons Goverdhan Dass and Syed Mal be, therefore, substituted in place of Guftar Mal, deceased. Notice of this application was given to the sons of Guftar Mal and on 3rd of September, 1963, they filed a written statement and in paragraph 5 of the preliminary objections, they took the plea that Guftar Mal defendant No4 had died one year back and since the suit was brought against a dead person, it was a nullity and assuch was liable to be dismissed. It appears that no order weas passed on the application filed by the plaintiffs on 8th of June 1963 and Goverdhan Dass and Syed Mal also went on taking part in the proceedings in the cas4e and their objection was also not decided. On 18th of April, 1966, issues on merits were framed and on 1st of August, 1967 Goverdhan Dass and Syed Mal filed a petition under Order 14, Rule 5 read with Section 151 of the Code of Civil Procedure saying that no decision had been given on the application of the plaintiffs dated 8-6-1963, and the same should be decided . their allegations were that their father had died 20-3-1962 i.e., before the institution of the suit and, consequently, the against a dead person was a nullity. Their names as legal representatives of the deceased person could not be substituted in place of their deceased father in such a suit. This petition was opposed by the plaintiffs, who pleaded that Goverdhan Dass and Syed Mal had been taking part in the proceedings of the suit and even at the time of the framing of the issues they had not raised any objection, with the result that they were estopped from making an application of that kind.

2. On the pleadings of the parties, the following issues were framed:-

1. Whether Guftar Mal died before the institution of the suit? If so, its effect.

2. Whether Syed Mal and Goverdhan Dass are estopped by their act and conduct to file this application?

3. Whether Syed and Goverdhan Dass have been duly impleaded in place of Guftar Mal? If so, its effect.

On issue No.1, the finding given by the trial Judge was that Guftar Mal had died on 20-3-62 i.e., before the institution of the suit, with the result that his name had to be struck off from the array of defendants. On issue No.3, his finding was that Goverdhan Dass and Syed Mal should be brought on the record as defendants in place of Guftar Mal under the provisions of Order 1, Rule 10 (2), Civil Procedure Code. According to him, the plaintiffs had, on 8-6-63, before the suit was formally registered after the pauper application had been decided, brought an application for the substitution of their names in place of Guftar mal. After the deathe of Guftar Mal, the land covered by the two alienations in his favour had been mutated in the names of these legal representatives and during the p