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Rafuwa and ors. Vs. Abbas Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1465 of 1958
Judge
Reported inAIR1963All391
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rules 3, 4 and 11
AppellantRafuwa and ors.
RespondentAbbas Khan and ors.
Appellant AdvocateS.C. Khare, Adv.
Respondent AdvocateA.K. Kirty, Adv.
DispositionAppeal dismissed
Excerpt:
.....heirs also, it may also nave been open to them to have asked the court to allow the two sons of abbas khan who were already on the record to represent the entire body of heirs and legal representatives and thus to represent the estate effectively. what, however, has been seriously contestedbefore me is that the failure to implead some of theheirs of a deceased party cannot result in abatement at all. in those circumstances it was held by the lower appellate court that the failure to bring on the record the widow, did not cause the abatement of the suit. 7. on the other hand so far as this court is concerned, it is well settled that unless the circumstances be exceptional, it is necessary to implead all the legal representatives and the omission or failure to implead some of them would..........for recovery of possession. there were five defendants in the suit, one of whom was a man called abbas khan. the suit was dismissed by the trial court. the plaintiffs went up in appeal to the lower appellate court. during the pendency of the appeal abbas khan defendant-respondent died. after more than a year of the death of abbas khan the plaintiffs-appellants, in the lower appellate court, made an application bringing to the notice of the court the fact of we death of abbas khan. they stated in that application that abbas khan left two sons as his heirs and legal representatives; that besides these two sons he left no other heir or legal representative; that these two sons were already on the record as defendants-respondents in the suit the prayer contained in the application was that.....
Judgment:

Brijlal Gupta, J.

1. This is a plaintiffs' appeal. The suit was for an injunction and in the alternative for recovery of possession. There were five defendants in the suit, one of whom was a man called Abbas Khan. The suit was dismissed by the trial Court. The plaintiffs went up in appeal to the lower appellate Court. During the pendency of the appeal Abbas Khan defendant-respondent died. After more than a year of the death of Abbas Khan the plaintiffs-appellants, in the lower appellate Court, made an application bringing to the notice of the Court the fact of we death of Abbas Khan. They stated in that application that Abbas Khan left two sons as his heirs and legal representatives; that besides these two sons he left no other heir or legal representative; that these two sons were already on the record as defendants-respondents in the suit

The prayer contained in the application was that the name of Abbas Khan may be removed from the array of the defendants-respondents and that the two sons of Abbas Khan who are already on the record be declared to be his heirs and legal representatives. This application was contested on behalf of the defendants-respondents. The defendants-respondents alleged in the objection tiled by them that besides the two sons, Abbas Khan had left several daughters and the issues of those daughters who were also the heirs and legal representatives of Abbas Khan. It was further stated in this objection that as these other heirs and legal representatives had not been brought on the record the entire appeal had abated and the prayer was accordingly made that the appeal be declared to nave abated.

2. It is remarkable that the plaintiffs-appellants did not relent even after this objection had been filed. It may have been open to them to have agreed to the substitution of these other heirs also, it may also nave been open to them to have asked the Court to allow the two sons of Abbas Khan who were already on the record to represent the entire body of heirs and legal representatives and thus to represent the estate effectively. It may be that by reason of the delay after which the application was made by the plaintiff-appellants, the plaintiff-appellants may have been required to make an application for condonation of delay but in view of the attitude taken up by the plaintiff-appellants this situation neither arose nor could arise.

3. The lower appellate Court framed an issue to the effect whether defendant-respondents 2 and 3, namely, the sons of Abbas Khan were the only heirs and legal representatives of Abbas Khan and if they were not the only heirs and legal representatives what was the effect of other heirs and legal representatives not having been sought to be brought on the record.

4. Evidence of the parties was recorded on this issue and the lower appellate Court came to the conclusion that defendants 2 and 3 alone were not the heirs and legal representatives of Abbas Khan. Thereupon the lower appellate Court, taking the view, that if he proceeded with the appeal, and if the appeal was allowed, two inconsistent decrees might be brought into existence, which could not be permitted to be done, declared the appeal to have abated.

5. It has not been seriously disputed before me thathaving regard to the nature of the suit the appeal wouldnot abate. What, however, has been seriously contestedbefore me is that the failure to implead some of theheirs of a deceased party cannot result in abatement at all.In support of this contention learned counsel relied upontwo decisions, one reported in Mohammad Hammad v.Tej Narain Lal AIR 1942 All 324 and the other reportedIn Radha Raman v. Anant Singh, AIR 1945 Oudh 196. Iam of the view that both these cases are distinguishableand do not help learned counsel's submission. In theAllahabad case, AIR 1942 All 324 one of the heirs ofthe deceased who alone was sought to be substitutedwas by order of the Court invested with a representativecharacter. In those circumstances it was held that eventhough the other heirs were not impleaded the suit didnot abate.

6. In the Oudh case, AIR 1945 Oudh 196, the question arose of the representation of the manager of a joint Hindu family. The manager was impleaded as representing the family. Upon the death of the manager the coparceners were brought on the record but not the widow of the manager. In those circumstances it was held by the lower appellate Court that the failure to bring on the record the widow, did not cause the abatement of the suit. The position is quite understandable in view ot the fact that where the manager is sued as representing the coparcenary, the coparceners and not the female members of the joint family including the widow of the manager have the right to represent the family. This decision also, therefore, does not help the learned counsel.

7. On the other hand so far as this Court is concerned, it is well settled that unless the circumstances be exceptional, it is necessary to implead all the legal representatives and the omission or failure to implead some of them would result in the abatement of the sun or the appeal as the case may be. Reference may be made to Ghamandi Lal v. Amir Begam, ILR 16 All 211 and Haider Husain v. Abdul Ahad, ILR 30 All 117. The exceptional circumstances may be where either under the law or an order of the Court some of the heirs are entitled to represent the entire body of legal representatives or the estate or where the opposite party fails to object to the heirs sought to be impleaded on the ground that they are not the entire body of heirs and legal representatives. In the latter circumstances it may be possible to plead that the opposite party was estopped from raising the question after the order impleading heirs and legal representatives had been passed by the court. None of these circumstances however exist in the present case.

8. It follows that the judgment of the Court below was perfectly correct. The appeal had abated by reason of the failure to implead all the heirs and legal representatives of Abbas Khan deceased.

9. There is no force in this appeal. It is accordingly dismissed with costs.

10. Leave to appeal to a Bench of two Judges is asked for and is refused.


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