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PETITIONER: DOLAI MOLLIKO & ORS.

       Vs.

RESPONDENT: KRUSHNA CHANDRA PATNAIK & ORS.

DATE OF JUDGMENT: 23/03/1966

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SHAH, J.C. SIKRI, S.M.

CITATION:  1967 AIR   49            1966 SCR  (2)  22  CITATOR INFO :  RF         1975 SC 733  (30,33)

ACT: Code of Civil Procedure, 1908 (Act 5 of 1908), O. XXII  r.3- Omission  to  bring  on record  all  legal  representatives- Effect.

HEADNOTE: On  the  death  of one of the  plaintiffs-appellants  in  an appeal pending before the Subordinate Judge, an  application was  made for bringing on record his heirs and  these  heirs were two, viz., his widow and a major son.  No objection was made to this application and consequently the widow and  the major son were substituted on record as heirs.  Later,  when the  respondent’s  further appeal was pending  in  the  High Court,  it  was discovered that the deceased had  left  some other heirs besidesthe two who had been brought on record as his heirs.  Consequentlythe respondents raised an  objection that  as some of the heirs of thedeceased had been left  out and  there could be no question of wantof knowledge  of  the existence  of these heirs on the part of the widow  and  the major  son who had applied for being brought on record,  the appeal  abated.   The  High Court upheld  the  objection  In appeal,, this Court. HELD:The estate of the deceased was fully represented by the heirs  who  had been brought on the record and  these  heirs represented  the  absent heirs also, who  would  be  equally bound by the result. Even  where the plaintiff or the appellant has died and  all his  heirs  have not been brought on the record  because  of oversight or because of some doubt as to who are his  heirs, the  suit or the appeal, as the case may be, does not  abate and  the  hears brought on the record  fully  represent  the estate unless there is fraud or collusion or there are other circumstances which indicate that there has not been a  fair or  real trial or that against the absent heir there  was  a special  case  which was not and could not be tried  in  the proceedings [24 F-25B] Further,  in this case, the respondents themselves  did  not object  that some heirs of the deceased had been  left  out. [25 C-D]

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Case law referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 836 of 1963. Appeal  by special leave from the judgment and decree  dated January  4. 1962 of the Orissa High Court in S.A. No. 90  of 1960. R.   Gopalakrishnan, for the appellants. B.   Parthasarathy,  S. N. Prasad, J. B. Dadachanji,  O.  C. Mathur and Ravinder Narain, for respondent No. 1. 23 The Judgment of the Court was delivered by Wanchoo,  J This is an appeal by special leave  against  the judgment  of  the  Orissa  High  Court.   The  brief   facts necessary  for  present  purposes are  these.   A  suit  was brought by eleven plaintiffs (who are appellants before  us) including   Dolai  Molliko  for  a  declaration   that   the plaintiffs  were tenants with occupancy rights in the  lands in dispute.  The suit was resisted by the defendants who are now respondents.  The Munsif dismissed the suit.   Thereupon there was an appeal by the plaintiffs.  During the  pendency of  that  appeal, Dolai Molliko, appellant,  died  in  March 1958.   An application was made within time for bringing  on record  his  heirs, and these heirs were  two,  namely,  the widow  and  a major son of the deceased.  No  objection  was made to this application and consequently the widow and  the son  of the. deceased were substituted on record  as  heirs. The  Subordinate  Judge allowed the appeal and  decreed  the suit and gave the declaration prayed for by the  plaintiffs. Then  followed  a  second appeal to the High  Court  by  the defendants-respondents.  When the appeal was pending in  the High  Court,  it was discovered that Dolai  had  left  three other heirs, namely, a minor son, a married daughter and  an unmarried  daughter besides the widow and the major son  who had  been brought on record as his heirs.   Consequently  an objection  was  raised in the High Court on  behalf  of  the present  respondents that as all the heirs of  the  deceased Dolai had not been brought on record, the appeal before  the Subordinate  Judge  had  abated in  toto.   The  High  Court accepted  this contention and held that as three  heirs  had been  left out and as there could be no question of want  of knowledge of the existence of these heirs on the part of the widow and the major son who had applied for being brought on record,  the appeal abated, as it was not disputed  that  in the present case the appeal would abate in toto.  In  conse- quence the appeal before the High Court was allowed  holding that the appeal before the Subordinate Judge had abated  and the judgment of the Munsif dismissing the suit was restored. Thereupon  the appellants obtained special leave  from  this Court; and that is how the matter has come before us. The only question therefore which falls for consideration is whether   the  estate  of  Dolai  deceased   appellant   was sufficiently represented before the Subordinate Judge by the widow  and the major son.  The question whether  in  similar circumstances  an  appeal abates came up  for  consideration before this Court in Daya Ram v. Shyam Sundari(1).  In  that case  it  was held that "where a plaintiff or  an  appellant after  diligent  and bona fide enquiry  ascertains  who  the legal representatives of a deceased defendant or  respondent are  and  brings them on record within the time  limited  by law,  there  is  no abatement of the  suit  or  appeal,  the impleaded  legal representatives sufficiently represent  the estate of the deceased and a decision obtained with them ’on

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record  will bind not merely those impleaded but the  entire estate including those not brought (1) [1965] 1 S.C.R. 231.                          L/84SCI-4 24 on record.  In a case where the person brought on record  is a  legal representative it would be consonant  with  justice and principle that in the absence of fraud or collusion  the bringing  on  record  of  such  a  legal  representative  is sufficient to prevent the suit or the appeal from abating." The matter was again considered by this Court in N. K. Mohd. Sulaiman Sahib v. N. C. Mohd.  Ismail Saheb(1).  That was  a mortgage suit, though the facts were slightly different from Daya  Ram’s  case(1).   In Daya Ram’s  case  (2),  the  sole respondent had died and an application was made in time  for bringing his heirs on the record but two heirs  were  left out  in this application.  The remaining heirs were  brought on record and a preliminary objection was raised that as all the  heirs  had not been brought on record, the  appeal  had abated, and it was this objection which this Court  rejected in  Daya Ram’s case(1).  In Mohd.  Sulaiman’s case(1),  how- ever, the mortgagor had died before the suit was brought  by the mortgagee against some of the heirs of the mortgagor but he left out two minor sons.  The question then arose whether the  two minor sons who had been left out from the array  of defendants would also be bound by the decree passed in  that suit.   This  Court  followed the  judgment  in  Daya  Ram’s case(1) and it was held that if the plaintiff had  proceeded bona fide and after due enquiry and under a belief that  the persons  who were sued were the only legal  representatives, the  whole estate would be bound including those  heirs  who were not arrayed as defendants.  This Court further  pointed out that "this rule will of course not apply to cases  where there  has been fraud or collusion between the creditor  and the  heir impleaded or where there are  other  circumstances which indicate that there has not been a fair or real trial, or that the absent heir had a special defence which was  not and could not be tried in the earlier proceedings." It  has been contended on behalf of the appellants that  the principle of these cases applies to the present case and the fact  that  three of the heirs were left out would  make  no difference as the entire estate of Dolai, deceased, must  be held  to be represented by the widow and the major  son  who were  brought on the record.  It will be noticed that  there is one difference between the present case and the two cases on  which  reliance  has  been  placed  on  behalf  of   the appellants.   This  is not a case where a  plaintiff  or  an appellant  applies  for bringing the heirs of  the  deceased defendant or respondent on the record; this is a case  where one of the appellants died and his heirs have to be  brought on  record.   In  such a case there is no  question  of  any diligent  or bona fide enquiry for the deceased  appellant’s heirs  must  be  known to the heirs who  applied  for  being brought  on  the  record.  Even so we are  of  opinion  that unless  there  is  fraud or collusion  or  there  are  other circumstances which indicate that there has not been a  fair or  real trial or that against the absent heir there  was  a special case which was not and could not (1) [1966] 1 S.C.R. 937. (2) [1965] 1 S.C.R. 231. 25 be tried in the proceeding, there is no reason why the heirs who  have applied for being brought on record should not  be held to represent the entire estate including the  interests of the heirs not brought on the record.  This is not to  say

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that where heirs of an appellant are to be brought on record all of them should not be brought on record and any of  them should be deliberately left out.  But if by oversight or  on account of some doubt as to who are the heirs, any heir of a deceased  appellant is left out that in itself would  be  no reason for holding that the entire estate of the deceased is not represented unless circumstances like fraud or collusion to which we have referred above exist. In  the  present case there is no question of any  fraud  or collusion; nor is there anything to show that there had  not been  a fair or real trial, nor can it be said that  against the  absent heir there was a special case which was not  and could not be tried in the proceeding in his absence.  It may also  be  noticed that the respondents  themselves  did  not object  in the court of the Subordinate Judge that  some  of the  heirs of deceased Dolai had been left out and the  case proceeded  there,  as if the estate of  Dolai  deceased  was represented in full by the heirs brought on record.  It  was only in the High Court that it was discovered that Dolai had left  three  other  heirs who had not been  brought  on  the record.   In  the circumstances we are of opinion  that  the estate  of Dolai was fully represented by the heirs who  had been brought on the record in the Subordinate Judge’s  court and  that these heirs represented the absent heirs also  who would be equally bound by the result, and there is no reason to  hold  that the appeal before the Subordinate  Judge  had abated on that ground. We  may  in this connection refer to certain cases  where  a similar view has been taken.  In Abdul Rahman v.  Shahab-ud- Din(1),  the  appellant  had died and  only  his  sons  were brought  on  the  record and not his  widow  and  daughters, though the appellant was a Mohanimadan.  It was held that as the  heirs  who had applied for being brought on  record  as heirs  and legal representatives of the  deceased  appellant bona  fide believed that they were the sole heirs and  legal representatives  of the deceased, the appeal did  not  abate notwithstanding  that in Mohammadan law other persons  would be co-heirs of the deceased. In Mohd.  Zafaryab Khan v. Abdul Razaq(2), it was held  that "when by an order which has become final, a certain person’s name  has been brought on to the record of an appeal as  the legal  representative of the deceased appellant, it  is  not open  to the respondent to urge that the appeal  has  abated because some other heirs have been left out." In  Ram Charan v. Bansidhar(3), the sole appellant had  died leaving two daughters.  One of his daughters was brought  on record (1)I.L.R. (1920) 1 Lah. 481.  (2) I.L.R. (1928) 1 All. 857. L/85SCI-4(a)                    (3) I.L.R. (1942) AD. 671. 26 as his legal representative but not the other.  It was  held that  the  substitution  of one of the  daughters  as  legal representative  of the deceased must be deemed to have  been for  the benefit of the entire inheritance which  came  into being  on his death, and the entire estate, was  represented by her and there was no abatement of any part of it. In  Babuie  Shanti Devi v. Khodai Prasad  Singh(1),  on  the death  of the plaintiff in a suit to enforce a mortgage  his sons  were  brought  on record but not  his  widow  who  had herself  filed  a  petition  stating that  she  was  not  in possession  of the properties of the deceased plaintiff  nor did she desire any interest in the family properties, it was held that the failure to bring the widow on the record was a mere technical defect and the suit did not abate. In  Ishwarlal Laxmichand Patel v. Kuber Mohan  Lawar(2),  on

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the death of the appellant, his son was brought on record as heir  on his application and the widow who also was an  heir was  left out, it was held that it was proper that both  the son  and the widow should have applied for being brought  on the record but that the appeal did not abate merely  because the   widow  had  not  applied  as  the  estate  was   fully represented by the son. We  are  of  opinion that these cases  have  been  correctly decided  and even where the plaintiff or the  appellant  has died  and an his heirs have not been brought on  the  record because of oversight or because of some doubt as to who  are his  heirs, the suit or the appeal as the case may be,  does not  abate  and  the  heirs  brought  on  the  record  fully represent  the  estate unless there are  circumstances  like fraud or collusion to which we have already referred above. The appeal is therefore alowed and the judgment of the  High Court  set  aside.  The case will now go back  to  the  High Court  for decision on the merits after bringing  the  heirs left  out  earlier on the record.  The costs of  this  Court will abide by the final result. Appeal allowed. (1)A.I.R. (1942) Patna 340     (2)  A.I.R. (1843) Bom. 457. 27