08 September 1964
Supreme Court


Case number: Appeal (civil) 360 of 1962






DATE OF JUDGMENT: 08/09/1964


CITATION:  1965 AIR 1049            1965 SCR  (1) 231  CITATOR INFO :  R          1966 SC 792  (517)  R          1967 SC  49  (2,3)  RF         1971 SC  37  (5)  R          1975 SC 733  (30,32,33)  RF         1979 SC1393  (29)  F          1989 SC1589  (5)

ACT: Partition-suit for-Equities between co-owners. Code of Civil Procedure (Act V of 1908), O.XXII, r. 4(1) and (3)-Scope of. Practice-Legal  representatives-Duty to bring on  record  to make record complete.

HEADNOTE: Har Charan, respondent’s father, and his two brothers, owned certain  lands.  After the death of Har Charan his  brothers sold  the  lands  to  the father  of  the  appellants.   The respondent filed a suit claiming a decree for possession  of a third share in the property alleging that Har Charan  and: his  brothers were separated in interest.  After  notice  of the  claim  of  the  respondent.  the  purchaser  made  some constructions   in  pursuance  of  an  agreement  with   the Improvement Trust.  The respondent’s claim was decreed  but, in  execution of the decree it was ordered that  she  should file  a  suit  for partition in which her  rights  would  be worked out.  In the suit for partition, the trial Court held that  in equity she was only entitled to a decree for  money representing  the  value of her third share, on  the  ground that the appellants’ father had constructed buildings on the land.  The High Court allowed her appeal holding that as the buildings   were  completed  with  the  knowledge  -of   the respondent’s  claim,  the  appellants could  not  plead  any equity in their favour.  ’Me decree was challenged in appeal to  the  Supreme Court.  While the appeal  was  pending  the respondent  died and only some of her legal  representatives were brought on record.  It appeared however that there  was no  want  of diligence or bona fides in the  appellants,  in making an enquiry as to who the legal representatives were. HELD  : (i) The appellants’ father was in the position of  a trespasser with notice of the claim of the true owner and he



could  not  claim any special equity based upon  his  having bona   fide  put  common  property  to  use  and   :effected improvements on it. [237B-D]. (ii) Under 0. XX.11, r. 4(1) and (3) of the Civil  Procedure Code, 1908, where a plaintiff or an appellant after diligent and   bona   fide   enquiry  ascertained   who   the   legal representatives of a deceased defendant or respondent  were, and  brought them on record within the time limited by  law, there  would  be no abatement of the suit  or  appeal,  even though some other legal representatives remained unknown  to him  and were not impleaded, if those legal  representatives who were impleaded sufficiently represented the estate and a decision obtained against them bound the entire estate.   If however it is brought to the notice of the appellant  during the   pendency  of  the  appeal  that-some  of   the   legal representatives had not been impleaded, it would be the duty of the appellant who was thus made aware of his default,  to bring those others on record. [24OD-F; 242B]. Case law reviewed. 232

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 360 of 1962. Appeal from the judgment and decree dated February 26,  1957 of the Allahabad High Court in F. A. No. 487 of 1945. S.  K. Kapur, Advocate-General, Punjab, S. Murty and  K.  K. Jain, for the appellants. G. N. Dikshit, for the respondent. The Judgment of the Court was delivered by Ayyangar  J.  This is an appeal by a certificate granted  by the  High Court of Allahabad under Art. 133 (1) (b)  of  the Constitution  and represents, and that is our hope, the last stage  of  a litigation which has lasted  over  forty  years between the deceased respondent-Shyam Sundari-and Mata  Din, the father of the appellants. The  following facts are necessary to be stated in order  to appreciate   the   very   short  point   that   arises   for consideration ’in this   appeal.   The   father   of   Shyam Sundari-the deceased respondent was one Babu Har Charan Lal. He  was the owner along with his  two brothers-Kanhaiya  Lal and Sheo Narain, of plots 599 and 600 situated in Sisamau in Kanpur  on which there existed certain petty  constructions. The three brothers were separated in interest and were  each entitled  to  a third share. Babu Har Charan  Lal   died  in December, 1915 leaving behind him surviving his widow  Tulsa Kunwar and an only daughter-Shyam Sundari. Tulsa Kunwar died on  June 6, 1919 but even before her death Kanhaiya lal  and Sheo Narain, the two brothers of her husband claiming a full interest  in  those plots, sold them to Lala Mata  Din,  the father of the appellants by two registered deeds of sale for Rs. 7,000  on, the footing that each was entitled to a  half share,   ignoring  the  rights  of  Tulsa  Kunwar  who   was admittedly  no party to that transaction of sale. After  the death  of Tulsa Kunwar, Shyam Sundari made a  claim  against the  purchaser  for her third share in the property  as  the heir of her father, but as this was denied to her, she filed in March 1922 a suit numbered as 20 of 1922 in the Court  of the  Second  Subordinate Judge, Kanpur for the  recovery  of possession of her third share in these two plots. But  before this suit was filed certain  matters  transpired between Mata Din and the Kanpur Improvement Trust which have to  be  referred to because the agreement  entered  into  on December 15, 1921 between the Improvement Trust and Mata Din



as  a  result of these negotiations and the steps  taken  by Mata Din in consequence 233 thereof  are relied on by learned Counsel for the  appellant in  support of the contentions raised by him in the  appeal. It appears that there was a proposal for the acquisition  of these  plots  by  the Kanpur  Improvement  Trust,  that  the proposed  acquisition was objected to by Mata Din  and  that the  proposal  was abandoned by the Improvement Trust  as  a result of the agreement entered into by Mata Din whereby  he agreed  to convey to the Trust 895.35 sq. yds. of land  free of  cost,  in lieu of the betterment contribution  and  also agreed  to construct on the remaining part of the  premises, shops  and houses in accordance with plans approved  by  the Improvement  Trust.  ’Me relevance of this agreement and  of the,constructions -effected by Mata Din in pursuance of  the agreement we shall reserve for consideration later. The principal defence of Mata Din to the suit 20 of 1922 was based  on  the allegation that Har Charan Lal was  joint  in status and in interest with his two brothers and that on the former’s  death  without  male  issue  the  family  property survived  to the other two brothers.  The trial Court  found against  the  plaintiff  Shyam Sundari  on  this  issue  and dismissed  her suit.  She filed an appeal to the High  Court and the learned Judges allowed her appeal.  At the stage  of the hearing of the appeal a claim was made by Mata Din  that the was entitled to compensation for the building erected by him  on the ground that he had effected improvements to  the property  (these  being  the  shops  and  houses  which   he undertook   to  construct  under  the  agreement  with   the Improvement Trust) bona fide and he rested his case in  this regard  on  the terms of s. 51 of the Transfer  of  Property Act.  The learned Judges, however, disallowed this claim for compensation.   The claim to compensation  for  improvements effected had not been raised in the pleadings, nor urged  in the trial Court and the learned Judges observed "No  definite allegation of improvement of the property  was raised  in  his  written statement.  No  sum  spent  on  the building   was   specified   and   there   is   very    good reason.  as  we have said, to believe that Mata Din  had  no building  on this and on the 1st December, 1921.  We  cannot for  a moment believe that the building was finished by  the 1st  December, 1921.  He had notice of the plaintiffs  claim by March, 1922 and if he went on after getting notice of the plaintiffs claim to finish the completion of the building he was taking a risk and he must accept the consequences."      234 Allowing the appeal the learned Judges granted Shyam Sundari   a decree  for  possession  of  a third  share  of  the,  plots specified  in the lists attached to the plaint. That  decree has now become final. When  Shyam Sundari sought  execution of this decree,  there was  again trouble raised by Mata Din and when she  obtained joint  formal possession of her third share of the  property under     the  orders of the executing Court Mata Din  filed an appeal to   the High Court and    the learned Judges held that Shyam Sundari  was  not  entitled on the basis  of  the decree  which  she had obtained in suit 20 of  1922  to  any specific portion of the land. All that she was entitled  to, the learned Judges said, was to symbolical   possession of a third of the plots 599 and 600 and that she  ought to file a separate  suit  for partition in which this  right  of  hers could be worked out. In  pursuance  of  this  finding  and  decree  of  the  High Court,Shyam Sundari filed the suit out of which the  present



appeal    arises-suit   9   of  1939-against   the   present appellants who are  the  sons of Mata Din. who had  died  in 1933. The claim made     in the suit was for determining the third share of the lands and  for allotting the same to  her and if there were buildings on such     a  plot  the  plaint prayed  that  they might either be given over to her  or  be permitted  to  be  demolished  by  the  defendants,  with  a further prayer that the plaintiff might be-put in possession of  her  third share as ascertained. She  also  claimed  the other  usual  reliefs of mesne profits and  costs.   Several defences  were  raised  to this suit,  some  of  which  were obviously  frivolous.   Such, for instance, were  the  pleas that  the suit was barred by limitation or by s. 47 -of  the Civil  Procedure Code or that she had lost title by  adverse possession  on the part of the defendants.  The trial  Judge overruled  these technical defences and held that  her  suit for  the ascertainment and possession of a third  share  was maintainable.  But having so held, instead of granting her a decree  for  a  third share of the plots to  which  she  had obtained a right in suit 20 of 1922, he granted her a decree for Rs. 2,620 as representing the third  share of the  price of the land in question.  She was also granted a decree  for Rs.  2,000 as her share of the materials on the land at  the date of the sale to Mata Din, but this portion of the decree was,  on  appeal by the appellants, deleted by  the  learned Judges  of  the  High  Court and  need  not,  therefore,  be considered.  Her claim to-the allotment in specie of a third share  in the suit land was disallowed to her on the  ground that Mata Din had -constructed certain buildings on the land and that it was not 235 possible  to allot to her a third share in the land  without interfering with the buildings and that for this reason  the defendants  the  appellants before us were entitled  to  the equity of requiring the plaintiff Shyam Sundari to sell  her share  to them or, in other words, be compelled to take  the money  value of the land in lieu of her share in it.   Shyam Sundari  appealed from this decree to the High  Court.   The appeal  was  allowed by the High Court which granted  her  a decree  for a share of the property.  The decree  passed  in favour  of  the respondent by the High Court runs  in  these terms:                "A  preliminary decree for partition of  -the               appellants’1/3rd  share in plots 599  and  600               area 1122.99 sq. yds. be passed and that it is               hereby  directed that the appellant  shall  be               allotted  to her share the land on  which  the               least valuable constructions stand and that it               shall  be  open to the respondents  to  remove               their constructions from the site allotted  to               the appellants share, but if they do not,  the               ’appellant   shall   be   entitled   to   take               possession  over them without any payment  and               shall become their owner." It  is  the  correctness of this decree  for  partition  and possession  that  is challenged by the  appellants  who,  as stated  before, have obtained a certificate of fitness  from the High Court. The  ground  upon which the learned trial  Judge  considered that  the defendants were entitled to this equity  was  that Mata  Din  had  made the constructions on  the  land,  being obliged  to do so by reason of the agreement with the  Trust and  that he effected these improvements as a  co-owner  and not  as a trespasser and that in entering into an  agreement with the Trust he did not act mala fide but to save the land



in dispute for himself and his co-owners from being acquired by  the Trust and that as Shyam Sundari did not  assert  her title  before  the  construction started  it  would  not  be equitable  to  permit her to obtain a share in the  land  on which the new constructions stood and that it was within the jurisdiction  of  the  court  trying  a  partition  suit  to transfer  to  co-sharers at the market price the  shares  of others  instead of dividing the property and that as it  was impracticable  to  divide the property  without  demolishing some  at  least of the constructions,  the  defendants  were entitled to insist that they should be permitted to purchase the  third  share of Shyam Sundari in the  vacant  land.  In reversing  this  judgment, the learned Judges  of  the  High Court  held  that the action of Mata Din in  purchasing  the property was not bona fide. Mata Din had put forward, in the previous litigation      236 -suit 20 of 1922-a defence based on s. 51 of the Transfer of Property  Act and in that he failed. The agreement with  the Trust  was on December 15, 1921 and Shyam Sundari’s suit  20 of  1922 was filed in March 1922. It was,  therefore,  clear that whether or not the constructions were commenced  before the suit was instituted, they were completed with  knowledge of  the claim of Shyam Sundari to which, as the Courts  have now found, he had   no defence. The agreement with the Trust could not justify Mata Din’s action because the Trust  could not  agree  with  a  person who was not  the  owner  of  the property  to construct buildings on another’s  property.  It would have been open to Mata Din to have informed the  Trust immediately he got notice of the claim of Shyam Sundari that only  a 2/3rd share in the site belonged to him, but he  did not  do  so  but completed the  constructions  ignoring  the claims  of  Shyam Sundari. They could  not  therefore,  take advantage of their own acts and conduct and plead an  equity based  upon their wrongful acts. On this line  of  reasoning the  learned Judges held that there was no equity in  favour of Mata   Din  and  his heirs and hence passed a  decree  in favour  of  Shyam  Sundari in the terms  we  have  extracted earlier. Learned  Counsel for the appellants, though he  referred  to the  Partition Act, could not obviously rely upon it because the procedure adopted by the learned trial Judge was not one which  was sanctioned by that enactment, viz., sale -of  the entire  property  which  is the subject  of  partition.  He, therefore, urged before us that at the. stage when Mata  Din entered into the agreement with    the Improvement Trust the position  was  that the interest of the  co-sharers  was  in jeopardy and they ran the risk of losing the entire property by  the same being acquired under the Land  Acquisition  Act and  that by his act in entering into the agreement the  co- owners had been saved the property now in dispute and  that, in  the  circumstances,  the agreement  was  one  which  was entered  into  bona fide and that he could claim  an  equity based on the constructions erected in pursuance thereof.  We do  not see any substance in this argument. If the  property had   been   acquired   under  the  Land   Acquisition   Act compensation  at  the market value with the  solatium  would have  been  provided  and  Shyam  Sundari  would  have  been entitled  to a third share in that compensation.  ’Mere  is, therefore,  no question of Mata Din salvaging something  for the co-owners; and on that ground being entitled to plead an equity  based on such an act. Nor is there any substance  in the  argument  derived  from  the  analogy  of  improvements effected by co-owners or co-sharers, for admittedly Mata Din dealt



237 with the property as full owner denying the claims of  Shyam Sundari  to  a third share in  the  property.   Virtually,it would  be  seen  that the equity pleaded  is  based  on  the principle underlying s. 51 of the Transfer of Property  Act, and  as  we  have seen, the argument  calling  in  aid  this provision of law had been urged before the High Court in the appeal  against the decree in suit 20 of 1922 and  had  been rejected  for  the reasons we have  extracted  earlier,  and these  reasons  clearly  negative  all  bona  fides  in  the construction of these buildings.  In these circumstances, we consider that-the learned Judges were justified in  treating the  acts  of’ Mata Din as those of a trespasser  who,  with notice  of  the  claim  of  the  true  owner,  had  effected constructions on the property.  It is obvious that in  those circumstances  he could claim no special equity  based  upon his having bona fide put common property to use and effected improvements on it.  We consider, therefore, that the decree passed  by the High Court is not open to objection -and  the appeal has accordingly,to fail. Before  concluding, however, it is necessary to deal with  a preliminary  objection  raised by learned  Counsel  for  the respondent  that the appear had abated and that it ought  to be dismissed in limine on that ground.  The decree passed in the  case,  as would have been seen, was for  partition  and delivery of separate possession of a 1/3rd share in the  two plots No. 599 and 600 of Sisamau, Kanpur in favour of  Shyam Sundari and in the appeal filed by the heirs of Mata Din she was   the  sole  respondent.   The  High  Court  granted   a certificate  of fitness under Art. 133 (1) (b) on  September 13,  1957 and the appeal was declared admitted by  the  High Court on November 27, 1957 and thereupon under the  relevant provisions  of  the Civil Procedure Code the  appeal  became pending  in  this Court.  Shyam Sundari was stated  to  have died  sometime in April, 1959 and thereafter the  appellants took  steps  to implead her legal representatives.   In  the petition  filed  by  the appellants for  the  purpose,  they stated  that the heirs of the deceased were her husband  and four  sons, and it was prayed that these might be  impleaded as the legal representatives of the deceased.  The  petition was  granted.   The  substitution was  made  and  the  legal representatives who were impleaded respondents have  entered appearance and are contesting the appeal and it is on  their behalf  that the preliminary objection is being raised.   In the  statement  of  case which these  respondents  filed  in October  1962 they took the plea that the appeal had  abated since a son Kunwar Bahadur and a daughter Laxmibai of  Shyam Sundari   had   not  been  brought  on   record   as   legal representatives within the time 238 allowed  by  law.   No allegation, however,  has  been  made either suggesting that the appellants had not made  diligent and   bona   fide   enquiries  regarding   who   the   legal representatives  of Shyam Sundari were or that they had  any motive fraudulent or otherwise in not adding the son and the daughter  in  the array of legal  representatives  in  their petition  under  0.  22 r. 4, Civil  Procedure  Code,.   The question for consideration is whether when an appellant  has impleaded  heirs of the deceased respondent so far as  known to  him within the time allowed by law, but has  omitted  to bring on record some of the heirs, this omission results  in the abatement of the appeal. As we shall point out presently, the question in Sikh  cases is  whether  the  estate of the  deceased  is  properly  and sufficiently  represented for the purpose of  defending  the



appeal and whether, in law, the estate can be so represented even when some of the heirs are, without fraud or collusion, omitted to be brought on record.  Before, however, examining this  point, it would be convient to refer to and deal  with the  authorities relied on by Counsel for the respondent  in support   of  his  submission.   Learned  Counsel  for   the respondent relied on two decisions of this Court -The  State of  Punjab v. Nathu Ram (1) and Ram Sarup v. Munshi(2  )  as loading to this result.  In the first case the Government of Punjab  acquired  certain parcels of land belonging  to  two brothers  L  &  N who refused  to  accept  the  compensation offered  to them and applied to the Government to refer  the dispute to arbitration.  The matter was thereafter  referred to arbitration under the Punjab Land Acquisition (Defence of India) -Rules, 1943 and an award was passed in favour of the brothers.  The Government appealed against the award to  the High Court and during the pendency of the appeal before  the High  Court one of the brothers died and no application  was made for bringing on record his legal representatives within the  time  limited  by law.  A  preliminary  objection  -was raised to the hearing of the appeal by the surviving brother who  claimed that the entire appeal had abated by reason  of the legal representatives of the deceased brother not having been ’brought on record in time.  The learned Judges of  the High Court accepted this contention and dismissed the entire appeal.   The  ’State of Punjab came up in  appeal  to  this Court  and  this  Court ’held that in the case  of  a  joint decree  the  decree was indivisible and in such a  case  the appeal  against  one respondent alone can,not  be  proceeded with  and  would have to be dismissed as a  result   of  the abatement of the appeal against the deceased respondent (1) [1962] 2 S.C.R. 636. (2) [1963] 3 S.C.R. 858. 239 for otherwise there would be two inconsistent decrees.  This Court found that the brothers had made a joint claim and got a  joint decree and it was that decree which was  joint  and indivisible  that was being challenged in appeal before  the High  Court.  The appeal of the State was dismissed.  We  do not  see  how this decision helps the respondent  but  shall examine it after referring    to the other decision of  this Court  on which the learned Counsel sought support.  In  Ram sarup  v. Munshi(1) there had been a pre-emption decree  and an appeal was preferred from it by the vendees.  One of  the appellants   died   pending  the  appeal   and   his   legal representatives  were not brought on record.  As the  decree was  a joint one And as part of the decree had become  final by   reason  of  the abatement it was held that  the  entire appeal  must  be held to have abated.   The  principle  upon which these cases rest has no application to the case before us.   The first of the above decisions was a case  where  -a joint  decree had been passed in favour of  two  individuals and that was challenged in the appeal   before   the    High Court.  It was common ground that the appeal against one  of the  joint  decree-holders had abated owing to none  of  his legal representatives; having been impleaded within the time limited  by law.  There was, therefore, none on  the  record who  could represent the estate of the deceased  respondent. In  such a case the only question that Could arise would  be whether the    abatement  which ex concessis took  place  as regards one of the respondents should have effect  partially i.e.  confined  to the share of the deceased  respondent  as against  whom  the appeal has abated, or  whether  it  would result  in the abatement of the entire appeal.  This, it  is obvious,  would depend on the nature of the decree  and  the



natural-  of the interest of the deceased in  the  property. If the decree is joint and indivisible, it would be apparent that  the  abatement  would be total.  It  was  precisely  a question  of  this sort that was raised  by  Nathu  Ram’s(2) case.  The other decision in Ram Sarup v. Munshi(1) is  also an illustration of the identical principle, and that is  the reason why this Court proceeded to consider elaborately  the nature of the interest inter se of the vendees who had filed the appeal.  It is clear that in the appeal now before us no such question of partial or ’total abatement arises. The  case  before  us is entirely different.   There  was  a decree  in favour of Shyam Sundari-and that is the  subject- matter  of this  appeal. The question is whether  there  has been  abatement of the appeal against Shyam Sundari.   Shyam Sundari’s heirs have (1) [1963] 3 S.C.R. 858. (2) [1962] 2 S.C. R. 636. 240 been  brought on record within the time allowed by  law  and the only question is whether the fact that two of the  legal representatives  of  Shyam Sundari have been omitted  to  be brought on record would render the appeal incompetent.  This turns  on  the proper interpretation of 0. 22, r. 4  of  the Civil Procedure Code :               "4.   (1)   Where...............      a   sole               defendant  or  sole  surviving defendant  dies               and  the right to sue-survives, the Court,  on               an      application made in that behalf, shall               cause the legal representative of the deceased               defendant to be made a party and shall proceed               with the suit.               4. (3) Where within the time limited by law no               application  is made under sub-rule  (1),  the               suit  shall  abate  as  against  the  deceased               defendant." When this provision speaks of "legal representatives" is  it the intention of the legislature that unless each and every- one of the legal representatives of the deceased defendants, where  these are  several, is brought on record there is  no proper  constitution of the suit or appeal, with the  result that  the suit or appeal would abate? The  almost  universal consensus of opinion of all the High Courts  is 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, that the  impleaded  legal representatives  sufficiently  represent the estate  of  the deceased and the decision obtained with them on record  will bind  not  merely  those impleaded  but  the  entire  estate including those not brought on record. The principle of this rule  of law was thus explained in an early decision of  the Madras  High  Court in Kadir v. Muthukrishna  Ayyar(1).  The facts  of  that case were that when the defendant  died  the first defendant before the Court was impleaded as his  legal representative.  The  impleaded person raised  no  objection that  he  was  not  the sole  legal  representative  of  the deceased  defendant and that there were others who had  also to be joined. In these circumstances, the  Court observed:                "In  our opinion a person whom the  plaintiff               alleges to be the legal representative of  the               deceased  defendant and whose name  the  Court               enters  on  the record in the  place  of  such               defendant sufficiently represents the    estate               of  the deceased for the purposes of the  suit



             and                (1) (1902) I.L.R. 26 Mad. 230. 241               in  the absence of any fraud or collusion  the               decree  passed’in  such suit  will  bind  such               estate  ....... If this were not the  law,  it               would,   in  no  few  cases,  be   practically               impossible to secure a complete representation               of  a party dying pending a suit and it  would               be  specially so in the case of  a  Muhammadan               party      and  there can be no hardship in  a               provision of law by which a party dying during               the  pendency of a suit, is fully  represented               for the purpose of the suit, but only for that               purpose, by a person whose name is entered  on               the  record  in place of  the  deceased  party               under  sections 365, 367 and 368 of the  Civil               Procedure Code, though such person may be only               one  of several legal representative’s or  may               not be the true legal representative." This,  in our opinion, correctly represents the law.  It  is unnecessary, here, to consider the question whether the same principle would apply when the person added is not the  true legal  representative  at all.  In a case where  the  person brought on record is a legal representative we consider that 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.  We have not been  referred to  any principle of construction of 0. 22, r. 4 or  of  the law  which would militate against this view.  This  view  of the  law was approved and followed by Sulaiman, Acting  C.J. in  Muhammiad  Zafaryab  Khan v. Abdul  Razzaq  Khan(1).   A similar view of the law has been taken in Bombay-See Jehrabi Sadullakhan Mokasi v. Bismillabi Sadruddin Kaji(2 )-as  also in Patna-See Lilo Sonar v. Jhagru Sahu (3) , and Shib  Dutta Singh  v. Sheikh Karim Bakhslz (4 ) as well as.  in  Nagpur- Abdul  Baki v. R. D. Bansilal Abirchand Firm, Nagpur  (5  ). The Lahore High Court has also accepted the same view of the law-See  Mst.   Umrao  Begum v. Rehmat  Ilahi(6).   We  are, therefore,  clearly of the opinion that the appeal  has  not abated. The  next  question  is about the effect  of  the  appellant having omitted to include two of the heirs of Shyam Sundari, a  son and a daughter who admittedly had an interest in  the property, and the effect of this matter being brought to the notice  of the Court before the hearing of the appeal.   The decisions to which we have      (1) (1928) I.L.R.50 All. 857.(2) A.I.R. 1924 Bom. 420.      (3) (1924) I.L.R. 3 Patna 853.(4) (1924) I.L.R. 4 Patna 320.      (5) 1.L.R. [1944] Nag. 577.(6) (1939) I.L.R. 20  Lahore 433. 242 referred  as well as certain others have laid down,  and  we consider  this also, correct, that though the appeal has not abated,  when once it is brought to the notice of the  Court hearing the appeal that some of the legal representatives of the deceased respondent have not been brought on record, and the appellant is thus made    aware  of this default on  his part, it would be his duty to bring  these others on record, so that the appeal could be properly constituted.   In other words,  if  the appellant should succeed in  the  appeal  it would  be necessary for him to bring on record  these  other representatives  whom he has omitted to implead  originally.



The result of this would be that the appeal would have to be adjourned  for the purpose of making the record complete  by impleading   these  two  legal  representatives   whom   the appellant had  omitted  to  bring  on record  in  the  first instance. This is the course  which  we would have  followed but we had regard to the fact that  the  suit out  of  which this appeal arises was commenced in     1939  and was  still pending quarter of a century later and having     regard  to this  feature  we considered that unless we  were  satisfied that  the  appellant had a case on the merits  on  which  he could     succeed, it would not be necessary to adjourn  the hearing  for the purpose of formally bringing on record  the omitted  legal  representatives. We therefore  proceeded  to hear the appeal and as we     were satisfied that it  should fail on the merits we did not think it necessary to make the record complete.      The appeal fails and is dismissed with costs. Appeal dismissed. 243