1. The suit out of which this appeal arises was filed by the plaintiff for an injunction; against the defendants to secure certain easement rights and various other amenities for his house, The suit was dismissed with costs and the plaintiff appealed to the District Court. The appeal was admitted and notice was duly served on the respondents. The appellant died on October 2, 1940, and the respondents appeared through a pleader on October 9, 1940. Thereafter, within the period of limitation allowed by law, the son of the deceased appellant made an application to be brought on the record as his legal representative. His application was granted and his name was placed on the record as the legal representative of the deceased appellant. On the date of the hearing, which came off about ten months later, it was contended for the respondents that the widow of the deceased appellant was also one of his heirs under the Hindu Women's Rights to Property Act, XVIII of 1937, and that, as she was not brought on record as his legal representative, the appeal had abated. The lower appellate Court upheld this contention with scme hesitation and held that the appeal had abated. Two days thereafter it passed a separate order dismissing the appeal with costs. It may be mentioned here that thereafter the widow has died and the son, who has appealed to this Court, is the only surviving heir.
2. Under the provisions of Rules 3 and 11 of Order XXII of the Civil Procedure Code, where a sole plaintiff or appellant dies, the Court shall, on an application, cause the legal representatives of the deceased to be brought on record and the suit or appeal shall proceed; if within the time prescribed by law no application is made, the suit or appeal shall abate. The application contemplated by this rule must be made within ninety days of the death as provided in Article 176 of the first schedule to the Indian Limitation Act, 1908, and admittedly the appellant did make an application within ninety days of his father's death. The parties are Hindus governed by the Mitakshara law and presumably the widow of the deceased appellant was also one of his legal representatives under the Hindu Women's Rights to Property Act, XVIII of 1937. It would Rave been proper if both the son and. the widow had made an application that they should be brought on record as the legal representatives. The question now to be decided is whether the appeal abated, as the son alone made the application and was brought on record by an order of the lower appellate Court.
3. In Bhikaji Ramchandra v. Purshotam I.L.R. (1885) 10 Bom. 220 the appellant who died during the pendency of the appeal had left three adult sons and one minor son. None of them made an application to be brought on record within time, and several months later the minor son made an application that he should be brought on record, and it was held that as the application made by the minor was within the time limited by law, the appeal did not abate. Sargent C.J. observed (p. 223) :-
It is true that the complete legal representation as a fact is vested in him and his two brothers, but Section 366 [corresponding to Order XXII, Rule 3, Sub-rule (2)] only requires an application to be made by a person claiming to be the legal representative, to prevent the order of abatement being made.
(1939) 42 Bom. L.R. 491
4. In Lilo Sonar v. Jhagru Sahu I.L.R. (1924) Pat. 853 the respondent to an appeal had died during the pendency of the appeal and the appellant applied to substitute his legal representatives after the expiry of limitation on the ground that one of the representatives of the deceased had already been brought on the record, and therefore the appeal could not have abated. It was held that Order XXII, Rule 4, which deals with the representation of the deceased respondents, just as Order XXII, Rule 3, deals with the representation of the deceased appellants, did not require that all the legal representatives should be on the record, and if one of them was separately brought on record as legal representative, there would be no abatement. This case was followed in Mussammat Umrao Begum v. Rahmat Ilahi I.L.R. (1939) 20 Lah. 433.
5. Even the Allahabad High Court has now taken a similarly liberal view, and in Ram Charan v. Bansidhar A.I.R.  All. 358 a division bench of that High Court has held that where an appellant dies after filing the appeal and by an order passed by the Court one of his heirs is permitted to continue the appeal and is brought upon the record as a representative of the deceased entitled to continue the appeal filed by him, the heir represents the entire inheritance which came into being on the death of the appellant.
6. It is clear from the wording of Order XXII, Rule 3, that when once an application is made by a legal representative to be brought on record and that application is granted and such legal representative is brought on record, then the Court shall proceed with the suit or appeal. This means that the appeal shall not abate thereafter, as is clear from the view taken in Muhammad Zafaryab Khan v. Abdul Razzaq Khan I.L.R. (1928) 50 All. 857.
7. Moreover this being a suit for an injunction, even if the son of the deceased appellant wanted the injunction and the mother was indifferent about it, the appeal had to be proceeded with. In Shanti Devi v. Khodai Prasad Singh : AIR1942Pat340 where under similar circumstances the mother said that she had no interest, it was held that as the son had been already brought on record as the legal representative, he would represent the estate and the appeal did not, abate. It is not suggested that the application made by the son was not bona fide. The son seems to have honestly believed that he was the only heir (whether by inheritance or survivorship) after his father's death and that his mother had a mere right of maintenance, as in fact she would have had before the Hindu Women's Rights to Property Act, XVIII of 1937, was passed. Under similar circumstances it was held in Abdul Rahman v. Shahabuddin A.I.R.  Lah. 220 that the appeal did not abate, if the son's application was made under such a bona fide mistake. I, therefore, hold that the appeal did not abate.
8. There are certain cases in which it was held that the other legal representatives who ought to have been brought on record should be joined as parties. But in this case as the mother of the appellant is dead, she can no longer be brought on record and it is not necessary that there should be a separate application by the appellant that he should be also described in the appeal as the legal representative of his deceased mother. As held in Sheoram Sitaram v. Atmaram Raghoji the object of filing an application to bring the legal representatives on the record is to intimate to the Court the death of a party and to place the legal representatives on record within time. If such persons are already parties to the case, the mere non-filing of an application ought not to be fatal to the maintainability of the appeal. The same view was taken by this Court in Thakkar Naranlal v. Shivprasad Achratlal  Bom. 487 . The appeal must, therefore, now be heard on its merits.
9. I set aside the order and decree of the lower appellate Court, hold that the appeal has not abated and remand the appeal to that Court for being disposed of on merits according to law. The respondents shall pay the appellant's costs in this Court and bear their own.