B.B. Ghose, J.
1. This is one of the most curious judgments I have come across in the course of my experience. The plaintiff brought a suit for partition and accounts and other reliefs against several persons. Defendant 1 was alleged to be primarily liable. But the plaintiff stated that defendant 1 was at the time of the plaint lying ill at Benares, according to his information, and he did not know whether he was alive or dead at the time, and, therefore, as an additional precaution, the plaintiff had joined his heirs as defendants in the suit. Soon after the filing of the plaint, one of the beirs informed the Court that defendant 1 had died the day previous to the day the plaint was filed. Thereupon, the plaintiff asked for an amendment of the plaint by striking out the name of defendant 1 from the list of defendants and for putting in the name of defendant 1 in the body of the plaint wherever the words 'defendant 1' occur. There were other prayers for amendment with which we are not concerned just now. The Subordinate Judge, by a curious method of reasoning, rejected the application for striking out the name of defendant 1 from the list of the names of defendants and putting in the full name of defendant 1 in the body of the plaint. His reasoning seems to have been that no suit can be brought against a dead person. This is quite true. Defendants 2 to 6, however, were living persons against whom the suit had also been brought. Whether the suit was maintainable as against the heirs on the merits is a matter which requires decision. The Subordinate Judge did not want to decide it and threw away the case without hearing anything. This procedure is regrettable. The learned vakil for the respondents supports the order on the ground that the plaintiff wanted to make a new case by his petition for amendment. We are just now not concerned with what new case the plaintiff wanted to make. We have only to deal with the order rejecting the plaint on the ground that the suit was brought against a dead person, while, as a matter of fact, it was not.
2. We must, therefore, set aside the order of the Subordinate Judge and send back the case to the lower Court to be tried according to the provisions of the law. The cause title must be amended by striking out the name of Hari Mohan Dalai as defendant 1 and the plaint allowed to be amended by putting in the full name of Hari Mohan Dalai at every place where the words 'defendant 1' occur, and such consequential amendments must also be allowed on account of this amendment being made; that is to say, instead of the relief claimed against Hari Mohan Dalai, the relief may be claimed against his heirs. Whether the heirs would be liable for any of the claims advanced in the plaint or not is a matter which is to be decided in the suit. He is wrong to say that the plaint should be rejected, because no cause of action is disclosed. The learned vakil for the respondents cannot say that there is no cause of action, because, it being a suit for partition and accounts, a cause of action is disclosed. Whether the bar of limitation can be seriously pleaded or not is a question which seems to be merely academical, because the suit was filed on 27th July 1925 and the application for amendment made on 29th August 1925. Whether any other amendment of the plaint should be allowed or not is left to the discretion of the Court. But the manner in which that question has been decided by the Court is disapproved by us.
3. The appellant is entitled to his costs of this appeal. We assess the hearing-fee at 30 gold mohurs.
4. I agree.