JUDGMENT
Hari Lal Agarwal, J.
1. This civil revision application is by the plaintiff. The question for consideration is as to whether on account of the death of defendant No. 1 the suit would abate as a whole.
2. The relevant facts are as follows. Mt. Parmi Devi (defendant No. 3) claiming herself to be the mother of the plaintiff, executed a registered deed of sale in favour of defendant No. 1, Beyadar Singh. Several years thereafter this defendant No. 1 transferred the entire suit land in favour of Bilat Yadav, defendant No. 2, under two sale deeds dated 9-9-1570 and 27-5-1971. The plaintiff, who was then minor, instituted a title suit on his attaining majority in the year 1977 in the Court of the Munsif at Gaya for declaration that the sale deed executed by defendant No. 3 in favour of defendant No. 1 was illegal and inoperative and thus not binding on him and the subsequent purchasers, namely, defendant Nos. 11 and 2, did not acquire and right or title in the property. He also claimed some other consequential reliefs for recovery of possession and mesne profits.
3. Unfortunately for the petitioner, defendant No. 1 died sometime in 1978 in the trial Court before any written statement was filed by any of the defendants. The petitioner then made art application for expunging his name and thereupon defendant No. 2, took an exception by filing a petition that the suit itself bad abated on the death of defendant No. 1. The plea of defendant No. 2 has found favour with both the Courts below, i.e., the trial Court and the lower appellate Court, where it has been held that on account of the death of defendant No. 1 and in the absence of the substitution of his heirs and legal representatives the whole suit had abated. The petitioner has, accordingly, filed the present application.
4. learned Counsel appearing for defendant No. 2 had to concede before me that the plaintiff could have instituted absuit only against defendant No. 2 without impleading either of the two defendants, namely, defendant No. 1 or defendant No. 3, but, his contention is that in view of the fact that once defendant No. 1 was impleaded the suit as constituted could not proceed. This argument is entirely erroneous and must be rejected because once it is accepted that the plaintiff could constitute the suit only against defendant No. 2 and the presence of the other defendants was not necessary, then, as a matter of necessity, it must follow that the presence of the other defendants was wholly unnecessary for the decision of the suit. It may well be that the decision rendered in the suit may not be binding on the legal representatives of defendant No. 1 but as to whether defendant No. 2 derived a marketable title under the sale deeds, origin of which was in execution of the document on 17-8-1959 by defendant No. 3, can very well be examined In other words, the plaintiff, in my view, can still establish that defendant No. 3 had no right to alienate the property in question by the sale deed and if this finding can be recorded, then, as a matter of fact, subsequent transactions, which followed thereafter resulting in the ultimate purchase by contesting defendant No. 2, would automatically fall to the ground, inasmuch as the vendor, after selling the property delivered possession thereof to the vendee and the vendee becomes the sole owner of the property. It is now for him to defend his title against any person who claims any right in the said property. The vendor might be, if at all, only a proper party but certainly he is not a necessary party on the facts of the present case, inasmuch as the suit can be completely and fully adjudicated in presence of the plaintiff and defendant No. 2. In other words, effectual decree can be passed in favour of the plaintiff against defendant No. 2. I find full support for this view from a Full Bench decision of the Rajasthan High Court in Hardeva v. Ismail .
5. I would, accordingly, allow this application, set aside the judgment and the orders of both the Courts below and direct the trial Court to dispose of the suit in accordance with law. In the circumstances, however, I shall leave the petitioner to bear her own costs.