Case: Dolai Molliko &amp; Ors Vs. Krushna Chandra Patnaik &amp; Ors

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 appellants 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 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 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 interests of the heirs not 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. 5. 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 not 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 Dolai had been left out and the case proceeded there as if the estate of deceased Dolai 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 Judges court and that these heirs represented the absent heirs also who would be equal1y bound by the result, and there is no reason to hold that the appeal before the Subordinate Judge had abated on that ground. 6. We may in this connection refer to certain cases where a similar view has been taken. In Abdul Rahman v. Shahab-ud-Din ILR (1920) 1 Lah 481: (AIR 1920 Lah 228) the appellant had died and only his sons were brought on the record and not his widow and daughters, though the appellant was a Mohammadan. It was held that as the heirs who had applied for being brought on record as heirs and legal representatives of the deceased appellant bona fide believed that they were the sole heirs and legal representatives of the deceased, the appeal did not abate notwithstanding that in Mohammadan law other persons would be co-heirs of the deceased. 7. In Mohd. Zafaryab Khan v. Abdul Razzac, ILR (1928) 50 All 857: (AIR 1928 All 532 ), it was held that "when by an order which has become final, a certain persons name has been brought on to the record of an appeal as the legal representative of the deceased appellant, it is not open to the respondent to urge that the appeal has abated because some other heirs have been left out". 8. In Ram Charan v. Bansidhar, ILR (1942) All 671: (AIR 1942 All 358), the sole appellant had died leaving two daughters. One of his daughters was brought on record as his legal representative but not the other. It was held that the substitution of one of the daughters as legal representative of the deceased must be deemed to have been for the benefit of the entire inheritance which came into being on his death, and the entire estate was represented by her and there was no abatement of any part of it. 9. In Shanti Devi v. Khodai Prasad Singh, AIR 1942 Pat 340 on the death of the plaintiff in a suit to enforce a mortgage his sons were brought on record but not his widow who had herself filed a petition stating that she was not in possession of the properties of the deceased plaintiff nor did she desire any interest in the family properties it was held that the failure to bring the widow on the record was a mere technical defect and the suit did not abate. 10. In Ishwarlal Laxmichand v. Kuber Mohan, AIR 1943 Bom 457 on the death of the appellant, his son was brought on record as heir on his application and the widow who also was an heir was left out it was held that it was proper that both the son and the widow should have applied for being brought on the record but that the appeal did not abate merely because the widow had not applied as the estate was fully represented by the son. 11. We are of opinion that these cases have been correctly decided and even where the plaintiff or the appellant has died and all his heirs have not been brought on the record because of oversight or because of some doubt as to who are his heirs, the suit or the appeal, as the case may be, does not abate and the heirs brought on the record fully represent the estate unless there are circumstances like fraud or collusion to which we have already referred above.

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

Explanation:
1[ds]It will be noticed that there is one difference between the present case and the two cases on which reliance has been placed on behalf of the appellants. 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 appellants 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 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 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 interests of the heirs not 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 exist5. 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 not 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 Dolai had been left out and the case proceeded there as if the estate of deceased Dolai 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 Judges court and that these heirs represented the absent heirs also who would be equal1y bound by the result, and there is no reason to hold that the appeal before the Subordinate Judge had abated on that ground11. We are of opinion that these cases have been correctly decided and even where the plaintiff or the appellant has died and all his heirs have not been brought on the record because of oversight or because of some doubt as to who are his heirs, the suit or the appeal, as the case may be, does not abate and the heirs brought on the record fully represent the estate unless there are circumstances like fraud or collusion to which we have already referred above.