Das Gupta, J. - (1.) On the 24th August, 1953, Manjur Ahmed obtained a Rule from this Court calling upon the opposite parties to show cause why an order passed in a reference under section 18 of the Land Acquisition Act should not be set aside or such other order or orders passed as to the Court may seem fit and proper. Manjur Ahmed died on the 7th of July, 1954, leaving,-it is not disputed before us, eleven persons including among others his son Monir Ahmed his widow Akhtari Bibi, minor daughters Washima Bibi, Najma Bibi and minor sons Mohomed Hashim, Mohomed Kasim, Nissar Ahmed and Gulzar Ahmed. This Court closed for the long vacation on the 9th of September, 1954, and remained closed till the 21st of November, 1954. The offices of the Court, however, remained open from the 9th to the 24th of September and again from the 29th of October to the 20th of November. On the 14th of September, 1954, when the Court was closed, but the offices of the Court were open, an application for substitution was presented in the office on behalf of ten out of the eleven heirs of Manjur Ahmed. It was, however, taken back the same day. It was thereafter filed in the office on the 22nd of November, 1954. It is stated in this application that these ten persons as well as Monir Ahmed may be brought on the record as heirs of Manjur Ahmed and that as Monir Ahmed is not willing to join in the present application, he may be brought on the record as an opposite party and the other ten persons on whose behalf the petition was presented may be permitted to carry on the proceedings. It was also stated in the application that the application was being presented on behalf of the minor sons and daughters by Akhtari Bibi, their mother and "natural guardian.
(2.) This petition has been hotly contested before us. Three objections have been taken on behalf of the opposite party. The first is that the application is barred by limitation. The second is that as Akhtari Bibi has not been appointed by the Court guardian of the minors, she is not entitled in law to present the application on behalf of the minor children so that there is no proper application on behalf of the minor children. Thirdly it is contended that it has not been proved properly that Monir Ahmed is unwilling to join in the application and consequently an application to carry on the suit by other persons to the exclusion of Monir Ahmed is not maintainable in law.
(3.) As regards the last contention, it is undoubtedly true that before the other heirs are allowed to carry on the proceedings as heirs of Manjur Ahmed to the exclusion of Monir Ahmed, it should be properly proved that Monir Ahmed is not willing to join. There is, however, an affidavit on the record that Monir Ahmed is unwilling to "join the petitioners in this application or to sign the Vakalatnama in that be-half". There is no counter affidavit before us to show that this statement is not correct. In this state of the record, I think that, we are bound to hold that it has been properly proved that Monir Ahmed is unwilling to join the petitioners in this application. Consequently, the right course has been followed by the other ten heirs in asking that they should be allowed to carry on the proceedings themselves after bringing Monir Ahmed also on the record as one of the heirs of Manjur Ahmed. The decision in the case of Fajor Banu v. Rohim Bux Bhuiya, (32 C.W.N. 1020), which was cited by the learned Advocate for the opposite party in my opinion fully supports this proposition. There it was laid down : "In case of representatives unknown or unwilling to join in the application under Order XXII, rule 3, a bona fide application by all the representatives known or willing may be sufficient compliance with the law, but when there is a known representative whose unwillingness has not been proved, omission to have him substituted is fatal.";