JAGAT NARAYAN, J. - (1.)THIS is a revision application by the defendants against an appellate order of the District Judge, Jhunjhunu.
(2.)THE suit was instituted by Bhaniram on 26-5-1958 against Ghasiram and Deen Dayal for the recovery of a sum of Rs. 400/- alleged to have been lent on 14-2-1956. During the pendency of the suit Bhaniram died on 19-6-1959. On 1-8-1959 Smt. Man Bhari applied for being impleaded in place of Bhaniram alleging that she was his sole legal representative.
Bhaniram had three sons and three daughters. One of the sons Mahaveer is still living. The eldest son Chiranjilal and the second son Jhabarmal predeceased Bhaniram. Chiranjilal left three sons, Govind, Murarilal and Bilasrai, who are living. The three daughters of Bhaniram are also living. Jhabarmal left a son Shankar and a widow Smt. Man Bhari. After the death of Jhabarmal, Bhaniram executed gift-deed Ex. 1 on 30-7 47 in favour of his grandson Shankar. Shankar also died during the life time of Bhaniram after the execution of this gift deed. Smt. Man Bhari claimed to be the sole legal representative of Bhaniram on the basis of this gift-deed.

I have carefully perused the gift-deed. Bhaniram only gifted the specific immovable properties mentioned in Schedule 'ka' of the gift deed in favour of Shanker and not all his properties. Shanker became the owner of specific properties mentioned in this gift-deed. These are all immovable properties. On the death of Shanker, Smt. Man Bhari became the owner of only these specific immovable properties. Smt. Man Bhari is, therefore, not the only legal representative of Bhani Ram.

Smt. Man Bhari filed her application for being impleaded as the sole legal representative of Bhani Ram on 1-8-1959. An objection was filed by the defendants on 7-10-59. They disputed her claim to be the sole legal representative of Bhani Ram. The District Judge was thus in error in thinking that Smt. Man Bhari was impleaded as the only legal representative of Bhaniram with the consent of the defendants.

Mahaveer Prasad, the son of Bhani Ram, Govind and Murari Lal, his grandsons and Smt. Kamli, his daughter, out of his legal representatives, made a statement in the trial court to the effect that they had nothing to do with the amount claimed by Smt. Man Bhari. Such a statement cannot do away with the requirement of impleading of all the legal representatives of Bhani Ram.

It was however contended on behalf of Smt. Manbhari respondent that they sufficiently represented the estate of Bhaniram deceased within the meaning of the decision of their Lordships of the Supreme Court in Belai Maliko vs. Krishna Chand Patasik (l ). In that case 11 plaintiffs, including one Delai Malike brought a suit which was dismissed by the trial court. During the pendency of the first appeal Delai Malike died and an application within time was made by his widow and major son for being impleaded as legal representatives of Delai Malike. No objection was taken on behalf of the defendants-respondents that Delai Malike had left any heir. This appeal was allowed and the suit was decreed. A second appeal was filed by the defendants. During the pendency of this second appeal, the defendants discovered that Dalai Malike had left three other heirs, a minor son, a married daughter and an unmarried daughter who had not been brought on record as legal representatives. It was contended before the High Court that as all the heirs of the deceased Delai 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 in toto. In consequences, the appeal before the High Court was allowed and the suit was dismissed.

Their Lordships referred to their earlier decision in Dayaram vs. Shayam Sundari (2) and N. K. Mohammed Sulaiman Sahib vs. N. C. Mohammed Ismail Sahib (3) which were both cases under O. 22, R. 4 C. P. C. and observed - "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 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 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 interest of the heirs so brought on the record. This is not to say 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 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 Dalai 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. "

The facts of the present case are distinguishable from the facts of the case before their Lordships. In Delai's case (1), no objection was taken on behalf of the defendants in the court where the case was pending when Dolai died and an application for substituting his legal representatives was made that all his legal representatives had not been brought on the record. In the present case Smt. Man Bhari filed her application for substitution on 1-8-1959 and an objection was taken by the defendants on 7-10-59 that Bhaniram had left a son, grandsons and married daughters who were his heirs and despite this no application to bring them on record was made. This objection was reiterated in their written statement which was filed on 11-5-1960. The trial court where the suit was pending when Bhaniram died and where the application for substitution was made, however, passed an order substituting Smt. Man Bhari in place of Bhaniram deceased as his sole heir. As I have held above, Smt Manbhari was not the sole heir of Bhaniram. When a specific objection was taken by the defendants that Bhaniram had left other heirs who had not been impleaded, it was the duty of Smt. Manbhari to have impleaded them and her failure to implead them can only be regarded as deliberate.

If on an application for substitution by the legal representatives of a deceased plaintiff or appellant an objection is taken that there are some other legal representatives of the deceased who have not been impleaded, the applicants can call upon the objector to furnish their names and addresses and can implead them as defendants or respondents reserving a right to contest in a subsequent proceeding that they are not the legal representatives. If the objectors are unable to disclose their names then the suit or appeal cannot abate for failure to implead unnamed legal representative. If on the other hand, their names are disclosed but despite this they are not impleaded then the suit or appeal will abate if it is subsequently held that they were the legal representatives of the deceased plaintiff or appellant.

I am of the opinion that the decision in Dolai's case (l) is only applicable where no objection is taken before the court where the case is pending when a plaintiff or appellant dies that he has left other heirs who had not been impleaded. The decisions in Dayaram's case (2) and Mohammed Sulaiman's case (3) are only applicable to cases where no objection is taken before the court before whom the application for substitution is made that any other heirs were living who had been left out. If their Lordships of the Supreme Court meant to lay down a different rule under O. 22, r. 3 C. P. C. , they would have said so expressly. On the contary, they have specifically observed 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 fully represented by the heirs brought on record. It cannot be that their Lordships of the Supreme Court intended to interpret the law in such a way that the requirement of impleading all the legal representatives is enforced more stringently against a party having no personal knowledge as to who are the legal representatives of a deceased party then| against a party who has such knowledge.

I accordingly hold that the suit abated on the death of Bhaniram. The revision application is therefore allowed and the decree of the appellate court is set aside. In the circumstances of the case I leave the parties to bear their own costs throughout. .

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