S. K. MAL LODHA, J. - (1.) A learned Single Judge of this Court was of the view that the observations made by a Division Bench of this Court in Fakira vs. Board of Revenue (1) to the effect that it is well setled that in a case where one of the legal representatives of the deceased appellant or respondent is already on record, even though in another capacity, the proceedings will not abate simply because the other legal representatives are there and an application has not been made in time to bring them on the record, appear to be contrary to what was observed by a learned single Judge of this Court in Bhanwarlal vs. Bhuli (2 ). He has, therefore, referred the following question for determination; "whether in the facts and circumstances of the case, the appeals abate as against the deceased-respondent Phooli Bai and if so, whether the appeals can be proceeded in the absence of Smt. Lehri Bai, daughter of the deceased Phooli Bai ?" These two appeals are before us for answering the above question.
(2.) IT may be stated here that S. B. Civil Second Appeals No. 203 of 1969 and 205 of 1969 arose out of Civil Original Suits No, 44 of 1964 and 45 of 1964. Civil Original Suit No. 44 of 1964 was instituted by the plaintiff Smt. Pemi Bai against the defendants Jethmal and Moolchand Sons of Phoolchand for the recovery of Rs. 2547/- on the basis of a Khata dated April 1, 1964 alleged to have been executed by the defendants Jethmal and Moolchand and Chenmal Son of Visaji, who had died on June 24,1964 and his heirs were the aforesaid two defendants. Civil Original Suit No. 45 of 1964 was instituted by the plaintiff Smt. Pemi Bai on the basis of a Khata dated March 21, 1964 alleged to have been executed by one Chenmal Son of Visaji against the defendants Jethmal and Moolchand as they were legal representatives of deceased Chenmal being in possession of Chenmal's property as also being legatees under a Will executed by Chenmal in their favour, for the recovery of Rs. 2977. 50p. During the pendency of the aforesaid suit, defendant Jethmal died and his heirs were brought on record, who are respondents No. 1/1 to 1/6 in these appeals After trial, the suits of the plaintiff were dismissed. Feeling aggrieved, the plaintiff has preferred these appeals under section 100 of the Code of Civil Procedure. During the pendency of these appeals, an application dated June 3, 1975 was submitted on behalf of the appellant for striking off the names of respondents No. 1/5 Smt. Gehribai and respondent No. 1/6 Phoolibai. This application was supported by the affidavit of Lalchand. In the affidavit, it was stated that Smt. Phoolibai (respondent No. 1/6), mother of defendant Jethmal has died but date of her death could not be ascertained and that her son Moolchand is her only heir and is already on record as respondent No. 2. The copy of this application was delivered to the Counsel for the respondents. On July 21,1975, a learned single Judge of this Court allowed the application dated June 3,1975 filed on behalf of the appellant, by which, he prayed that the names of respondents No. 1/5 and 1/6 who have died leaving only those legal representatives who are already on record, be deleted The amended cause title was submitted on October 6, 1975. On July 6, 1979, an application was moved on behalf of the respondents that Smt. Phoolibai (respondent No. 1/6 died on Asoj Sud 5 Samvat 2027 leaving behind her daughter Smt. Lehribai wife of Mohan Lal resident of Bisalpur and that as no application has been made for substituting the legal representatives of the deceased Smt. Phoolibai in time, the appeal may "be dismissed as abated. " In support of the aforesaid application dated July 6, 1979, affidavit of Moolchand (respondent No. 2) was filed. On March 26, 1980, reply to the said application was filed on behalf of the appellant contesting it on various grounds. It was stated that Smt. Phoolibai (respondent No. 1/6) had left behind her one son Moolchand (respondent No. 2) and one daughter Smt. Lehribai and that Lalchand Umedmal, who gave affidavit in support of the application for deletion of the name of respondents No. 1/5 and 1/6, had no knowledge about this fact. It was submitted that Moolchand, who is the son of Smt. Phoolibai and who is in possession of the property of his late father Phoolchand and being one of the legatees of late Chenmal sufficiently represents the estate of Smt. Phoolibai and it is not necessary to bring on record Smt. Lehribai daughter of the deceased Smt. Phoolibai. It was also stated that it is well settled that if even one of the legal representatives of a deceased plaintiff defendant/appellant/respondent is already on record in any other capacity, there is no necessity to apply for bringing his other legal representatives on record and further that there is no time limit for bringing on record any of the other legal representatives and that the suit or the appeal as the case may be does not abate. In other words, it was contended that the appeals do not abate. It was also submitted that the appellant will have no objection in sending notice to Smt. Lehribai, if the respondents supply correct address showing where town or village of Bisalpur is situated. The learned single Judge heard the arguments on the question of abatement of the appeals and according to him, the question that emerged for consideration in the light of the arguments advanced before him was as to what is the affect of not submitting an application for bringing the legal representatives on record in time, although Moolchand one of the heirs of the deceased Smt. Phoolibai was already on record and that she was survived by her daughter Smt. Lehribai besides her son Moolchand. According to the learned Judge, the observations made in Fakira's case (1)referred to in the order of reference were contrary to what was observed in Bhanwarlal's case (2), and, therefore, he was referred the aforesaid question for answer. We have heard Mr. M. M. Vyas, learned counsel for the appellant and Mr. H. M. Parekh, learned counsel for the respondent No. 2. It was contended by Mr. Vyas, learned counsel for the appellant that for failure to make an application for bringing on record Smt. Lehribai, who is one of the legal representatives of the deceased Smt. Phoolibai in time, the appeals do not abate as (i) Moolchand (respondent No. 2) who is one of the legal representatives of Smt. Phoolibai although in another capacity is on record and he sufficiently represents the entire estate of the deceased Smt. Phooli Bai; (ii) the legal representatives of one of the legal representatives are not necessary parties; and (iii) the objection that Smt. Lehribai who is one of the legal representatives of Smt. Phoolibai was not brought on record was raised at a very late stage inasmuch as the proceedings which were taken in the appeals from time to time amply show that the respondents have abandoned the objection regarding effect of non-impleading Smt. Lehribai as one of the legal representatives of Smt. Phoolibai (respondent No. 1/6 ). In support of his submissions, Mr. Vyas, learned counsel for the appellant relied on Dayaram vs. Shyamsundari (3), Mohd. Sulaiman vs. Mohd. Ismail (4), Dolai Malike vs. Krushna Chandra (5), Mahabir Prasad vs. Jagaram (6), Fakira's case (1) and Harihar Prasad vs. Balmiki Prasad (7 ). On the other hand, Mr. Parekh, learned counsel for respondent No. 2 strenuously argued that for failure to implead Smt. Lehribai, who is one of the legal representatives of Smt. Phoolibai (respondent No. 1/6), the appeals should be dismissed as having abated because of the decree of the dismissal of the suit against one of the legal representatives of Smt. Phoolibai, if the appeals succeed, would be ineffective. He invited our attention to Roopchand vs. Mithalal (8), Jawarimal vs. Mangilal (9), Bhanwarlal's case (2) R. R. Gupta vs. Murli Prasad (10), B. S. Singh vs. R. D. Singh (11), Nethu vs. Laxmi Narain (12) and Teju vs. Board of Revenue (13 ).
(3.) BEFORE we proceed to answer the question referred to us, we may state that the facts stated herein are not in dispute. At the risk of repetition, we may state that deceased Jethmal, who was the defendant in the trial court died during the pendency of the suits and alongwith others, Smt. Phoolibai (respondent No. 1/6) was substituted as his legal representative. The legal representatives of Smt. Phoolibai (respondent No. 1/6) are her son Moolchand (respondent No. 2) and her daughter Smt. Lehribai. Moolchand (respondent No. 2) is already on record in another capacity and he is also one of the legal representatives of Smt. Phoolibai, who was substituted as one of the legal representatives of the deceased Jethmal in the trial court and that no application to bring Smt. Lehribai on record as the other legal representative of the deceased Smt. Phoolibai (respondent No. 1/6) was moved in time. It may also be mentioned here that Mool Chand (respondent No 2) who is already on record in another capacity and is one of the legal representatives of Smt. Phoolibai is contesting the appeal and it is on his behalf that the objection has been raised that the appeals have abated as Smt. Lehribai has not been brought on record as one of the legal representatives of Smt. Phoolibai (respondent No. 1/6) within time allowed by law. No allegation, however, has been made either suggesting that the appellant had not made diligent and bonafied enquiries regarding who the legal representatives of deceased Smt. Phoolibai (respondent No 1/6) were or that they had any motive fraudulent or otherwise in not adding Smt. Lehribai as legal representative. On these facts, we are called upon to determine the question that in a case where one of the legal representatives of the deceased-respondent is already on record, even though in another capacity, whether appeal will abate simply because the other legal representative is there and an application has not been made in time to bring him/her on the record ? The relevant portion of O. XXII r. 4 C. P. C. is as follows : "o. XXII r. 4. Procedure in case of death of one of several defendants or of sole defendant: (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or 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 representatives of the deceased defendant to be made a party and shall proceed with the suit. (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (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. " The aforesaid provisions of O. XXII r. 4 C. P. C. came up for interpretation before their Lordships of the Supreme Court in Dayaram's case (3) and it was observed as under : "the almost universal can senses of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bonafide 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 that a decision obtained with them on record will bind not merely these impleaded but the entire estate including those not brought on record. '" (Itelic added) It was also held that 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. It will be useful to excerpt the following occurring in para 12 of the report : ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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" (Itelic added) Dayaram's case (3) was relied on in Mohd. Sulaiman's case (4 ). In Mohd. Sulaiman's case (4), it was observed as under : "in a suit instituted against the heirs of a deceased debtor, it is the creditor who takes upon himself the responsibility to bring certain persons as heirs and legal representatives of the deceased on the record. If he has proceeded bonafide and after due enquiry and under a belief that the persons who are brought on the record are the only legal representatives, it would make no difference in principle that in the former case the heirs have been brought on the record during the pendency of the suit, the creditor having died since the institution of the suit and in the other instance of the plaintiff certain persons are impleaded as legal representatives of the deceased person. In either case, where after due enquiry certain persons are impleaded after diligent and bonafide enquiry in the genuine belief that they are the only interested in the estate, the whole estate of the deceased will be duly represented by those persons who are brought on the record or impleaded and the decree will be binding upon the entire estate. 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 proceeding. " In Dolai Malike's case (5), their Lordships of the Supreme Court after considering Dayaram's case (3) and Mohd. Suleman's case (4) ruled 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 cose 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 interests of the heirs not brought on record. The principle of representation of the entire estate of the deceased party by some of its heirs was reiterated. The provisions of O. XXII r. 4 C. P. C. read with O. XXII r. 11 C. P. C. again came up for consideration before their Lordships of the Supreme Court in Mahabir Prasad's case (6 ). In that case, it was held that where in a proceeding, a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representatives and that even if there are other heirs and other legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act, the proceeding will not abate. ;