Case: Daya Ram And Others Vs. Shyam Sundari

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 that decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record. The principle those not brought on record. The principle of this rule of law thus explained in an early decision of the Madras High Court in Kadir Mohindeen v. Muthukrishna Ayyar, ILR 26 Mad 230 . 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 circumstance, the Court observed :"In our opinion a person whom the plaintiff alleges to be the legal representative of the deceased defendant and whose name of the Court enter; on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit and 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 representatives 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 O. 22, R. 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 Muhammad Zafaryab Khan v. Abdul Razzac Khan, ILR 50 All 857 : (AIR 1928 All 532 ). A similar view of the law has been taken in Bombay - see Jehrabi Sadullakhan v. Bismillabi Sadruddin, AIR 1924 Bom 420 - as also in Patna - see Lilo Sonar v. Jhagru Sahu, ILR 3 Pat 853 : (AIR 1925 Pat 123) and Shib Dutta Singh v. Shaik Karim Baksh, ILR 4 Pat 320 : (AIR 1925 Pat 551 ) as well as in Nagpur Abdul Baki v. Bansilal Abirchand Firm, Nagpur, ILR (1944) Nag 577 : (AIR 1945 Nag 53). The Lahore High Court has also accepted the same view of the law - See Mst. Umrao begum v. Rahmat IIahi, ILR (1939) 20 Lah 433 : (AIR 1939 Lah 439). We are, therefore, clearly of the opinion that the appeal has not abated.12. 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 referred as well as certain others have laid down, and we consider this is also correct, that though the appeal has not abated, when once it is brought to the notice of the Court hering 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 it 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 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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. There 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 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 reason 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 bin 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 effect improvements on it. We consider, therefore, that the decree passed by the High Court is not open to objection and the appeal has accordingly toin 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 O. 22, R. or of the law which would militate against thisdecisions to which we have referred as well as certain others have laid down, and we consider this is also correct, that though the appeal has not abated, when once it is brought to the notice of the Court hering 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 it 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 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 recordalmost 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 that decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record. The principle those not brought on record. The principle of this rule of law thus explained in an early decision of the Madras High Court in Kadir Mohindeen v. Muthukrishna Ayyar, ILR 26 Mad 230  . 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 circumstance, the Court observedour opinion a person whom the plaintiff alleges to be the legal representative of the deceased defendant and whose name of the Court enter; on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit and 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 representatives or may not be the true legals to which we have referred as well as certain others have laid down, and we consider this is also correct, that though the appeal has not abated, when once it is brought to the notice of the Court hering 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 it 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 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