V.R. Newaskar, J.
1. The only question involved in this second appeal is, whether an appeal, in which one of the respondents dies and some of his legal representatives are already on record whereas the rest of them have not been brought on record within the time-limit allowed by law, the appeal abates as against the latter legal-representatives and consequently abates as a whole. The learned Second Additional District Judge, Ujjain, answered this question in the affirmative and dismissed the appeal in its entirety. The propriety of the view taken by the learned Judge is assailed before this Court.
2. It is contended by Mr. Bhalerao for the appellant that since all the sons of the deceased respondent were already on record and the appeal was sought to be proceeded with by seeking to strike out the name of the deceased respondent without impleading the widow and the daughters of that respondent the estate was substantially represented and consequently there could not have been an abatement as was held by the lower Court. He relied upon the decision of this Court reported in Laxminarayan v. Firm Benibhai Bhikhabhai, 1958 MPC 305.
3. On the other hand it is contended by Mr. Garg on behalf of the respondent that there had been a cross-appeal filed by the deceased respondent as well as his sons and in that cross-appeal the names of the widow and daughters of the deceased respondent had been brought on record to the knowledge of the present appellant. Consequently, according to the learned counsel, his proceeding with the appeal in the absence of widow and daughters of the deceased respondent could not be said to be bona fide.
In the second place he contended that it was certainly open for the appellant in view of the decision of this Court reported in Abdul Baki v. Bansilal Abirchand Firm Nagpur AIR 1945 Nag 53 to seek to add the widow and daughters as parties within three years from the date of death of the deceased under Article 181 of the Limitation Act and the rule of limitation regarding 90 days was inapplicable still in the present case the appellant did not bring on record the legal representatives even within three years although the fact that they were also the legal representatives of the deceased respondent had been brought to the appellant's notice by means of an application submitted in the cross-appeal on behalf of the respondent on 2-3-1957. The learned counsel relied upon the decisions reported in Jugalkishore v. Wardhasa, (S) AIR 1955 Nag 166 Ramnath Kisanlal v. Ramgopal Bhulal, AIR 1951 Nag 434 Munnalal v. Balchand 1961 Jab LJ 230 and Shivraj Singh v. Gaurishankar 1961 Jab LJ 1276 :AIR 1961 MP 147 in this connection.
4. Before proceeding to consider the question raised some further details as to matters relevant in this connection may be given.
5. During the pendency of the appeal preferred by Ranchhodlal, Manager, acting as the next friend of the Idol Madanmohan, one of the respondents Shrikrishnaji Mundhra died on 3-12-1956. An application dated 17-12-1956 was thereupon submitted on behalf of the appellant by Ranchhodlal that the three sons of Shrikrishnaji who are already on record might be substituted in his place as his legal representatives and the appeal may thereafter be proceeded with the respondents already on record namely the three sons of Shrikrishnaji. This application was replied to by the three sons of Shrikrishnaji, who were already on record on 27-3-1957. They contended that besides them the deceased had left a widow Shrimati Achaladevi and two daughters Yashodadevi and Shantadevi and since the appellant has not brought them on record within limitation the appeal abated against those legal representatives who have not been impleaded and since this is a suit for possession of immoveable property the appeal abated as a whole.
6. The present suit was filed by the plaintiff Idol Madanmohanlal for declaration and possession of land over which the deceased father of Shrikrishnaji had, it was alleged, built a house with the then managers of the Idol and the temple on condition that he along with the members of his family would live in this house during his lifetime and that on his death it would rest with the will of the then managers whether they should permit the members of his family to continue in possession or vacate, the property from the beginning being accepted to be the property of the Idol.
7. The defendants including the deceased respondent Shrikrishna admitted the fact that the house was constructed by Shrikrishna's father Gopikrishna but other allegations of the plaintiff regarding his having accepted the title to the suit house as being that of the plaintiff and permissive character of occupation by him and the rest of the defendants during Gopikrishna's lifetime and the competency of the plaintiff to treat it as a license for the duration of Gopikrishna's life, his right to terminate the licenser Plea of adverse possession was also put forward.
8. It is thus clear that on the case admitted by the defendants the property in suit constructed by Gopikrishna would be ancestral in the hands of Shrikrishna and his sons.
9. Where such is the case, the question is whether failure to bring on record Shrikrishna's widow Achaladevi and his two daughters Yashodadevi and Shantadevi has the effect of rendering the appeal incompetent due to its abatement as a whole.
10. In order to consider this question it will be proper to refer to the decisions of this Court and other High Courts bearing on this point.
11. In Narayan v. Amirta AIR 1923 Nag 101 (2) it is held that where some only out of entire body of legal representatives of the deceased defendant are impleaded by means of an application under this provision relief can be granted against those who are impleaded though not against those who are not impleaded.
12. In Begam Jan v. Jamat Bibi, AIR 1927 Lah 6 Lahore High Court has held following Musala Reddiv. Ramayya, ILR 23 Mad 125, Shib Dutta Singh v. Karim Baksh AIR 1925 Pat 551 and Lilo Sonar v. Jhagru Sahu AIR 1925 Pat 123, that the words 'legal representative' used in Order 22 Rule 4 do not necessarily mean 'all the legal representatives' as held in Haidar Hussain v. Abdul Ahad ILR 30 All 117 and that the requirements of the law are sufficiently complied with if all the representatives known to the applicant at the time of making the application are brought on record and the application is bona fide.
13. In Muthuraman v. Adaikappa AIR 1936 Mad 336 it is held by Beasley, C. J. and Stodart, J., that there is preponderance of authority that when a party takes proper steps to substitute on the record the representatives of an adversary who has died pendente lite he is not to be penalised because he has not brought on record the entire body of the representatives. The learned Judges referred to the earlier decision of that Court in Chathurbuja Doss Kushaldoss and Sons v. Rajamanicka Mudali AIR 1930 Mad 930. In that case the plaintiff bona fide brought on record the widow of a defendant who died during the pendency of the suit instead of the legatee of that defendant under a will made by him. The widow bona fide fought the litigation having contested the validity of the will as against the legatee. It was held that the widow was interested in defending the estate and consequently sufficiently represented it although later it was held that the will was genuine and proper.
In AIR 1936 Mad 336 (supra) their Lordships seem to have proceeded on the consideration whether the estate of the deceased defendant was sufficiently represented by a person or persons who were bona fide interested in saving the estate.
14. In Mohammad Hammad v. Tej Narain Lal AIR 1942 All 324 it was held that where on the death of a respondent during the pendency of the appeal one of his heirs is appointed by the Court to represent the deceased in appeal, the heir represents all those who claim the property in issue as his heirs and the decree passed in appeal is binding upon them as much as it is upon the heir actually brought on record. Their Lordships Allsop and Verma JJ., followed earlier Allahabad decision in Mohammad Zafaryab Khan v. Abdul Razzac Khan, AIR 1928 All 532, wherein it was held that an appeal did not abate against heirs who had not been impleaded as heirs of the deceased respondent when other heirs are so impleaded.
15. In Firm Mulchand Hemraj v. Jairamdas Chaturbhuj AIR 1935 Bom 287 it was held by Wadia, J., that it is sufficient compliance with Order 22 Rule 4 C.P.C. if one legal representative alone is brought on record and it is not necessary always to bring all of them on record. The learned Judge followed the earlier decision of that Court in Jehrabi v. Bismillabi AIR 1924 Bom 420 and the decision in AIR 1928 All 532 referred to above.
16. In Radha Raman v. Anant Singh AIR 1945 Oudh 196 it was held that where an application for bringing the legal representatives of the deceased respondent was made within the period prescribed by Article 177 of the Limitation Act, the mere fact that the list of legal representatives mentioned in the application was not exhaustive would not operate to abate the appeal against the deceased respondent. The decisions in AIR 1925 Pat 551 and AIR 1935 Bom 287 were followed in that case.
17. In AIR 1945 Nag 53 it was held that where there are several legal representatives it is sufficient if all the legal representatives known after due diligent enquiry are joined within the period of limitation. Any subsequent application to add the rest could be made at any time later and such an application would be governed by Article 181 of the Limitation Act.
18. In (S) AIR 1955 Nag 166 it is held that where the suit is brought against the individual members of a joint family and not in a representative capacity; the interest of the widow of the deceased member is not represented by the other members of the joint family on record and that in that view the widow is a necessary legal representative. Failure to bring her on record results in abatement.
19. In Poonam Chand v. Motilal, AIR 1954 Raj 287 the appellant on coming to know of the death of a respondent applied for bringing on record two out of his three sons within the period of limitation. There was no collusion or fraud in so doing. It was held the appeal did not abate.
20. In 1958 M.P.C. 305 Krishnan, J., approved and followed the decisions in AIR 1945 Nag 53 and AIR 1954 Raj 287 and held that the substitution is intended to enable the estate of the deceased respondent to be represented where the cause of action survives against the death of such respondent and where some of them are brought on record bona fide there is no abatement. In that case a daughter who was declared an heir under the recent enactment of Hindu Succession Act was not brought on record along with the sons.
21. Preponderance of the view on these authorities seems to be that where on the death of a defendant or a respondent some one or more of his legal representatives are brought on record and there is neither any fraud or collusion the estate of the deceased party is fully represented and consequently the suit or appeal does not abate against him. The position is different if nobody is brought on, record in his place and the estate goes unrepresented. The cases directly in point are AIR 1928 All 532 (supra), AIR 1942 All 324 (supra), AIR 1945 Oudh 196 (supra), AIR 1945 Nag 53 (supra), AIR 1954 Raj 287 (supra) and 1958 M.P.C. 305 (supra). These cases relate to a situation where, as in the present case all the heirs of the deceased respondent are not brought on record though some of them are brought iona fide believing that they fully represent the estate and without any fraud or collusion.
22. On the basis of AIR 1945 Nag 53 (supra), it was suggested that at least within three years an application to bring the rest ought to be filed in order to save the suit or appeal from limitation. Although in that case an application to that effect was made within three years as the appeal continued to be pending and the contention of applicability of Article 181 of the Limitation Act was raised on behalf of the remaining respondents and that contention was repelled by referring to Article 181 of the Limitation Act yet the principle which seems to have been approved is that of substantial representation of the estate due to bringing on record some of the legal representatives bona fide within the period provided by Article 171.
In the present case no application has been made later on to bring the remaining heirs namely Achaladevi, Shantadevi and Yashodadevi on record although it may be open either for them to come and join the proceedings or for the Court suo motu to bring them on record in the interest of justice for which there is no period of limitation as long as the proceedings are pending. The decision in (S) AIR 1955 Nag 166 (supra), has no application as in that case a suit was brought against the members of a joint Hindu family not as representing the family but as each of them representing individually himself alone. In that case it was rightly held that the widow of a deceased member is not represented by other members already on record. It may also be mentioned that in the present case the law conferring rights upon daughters had come into force quite recently and consequently it cannot be said that the application to bring all the sons of the deceased respondent was not bona fide.
It is no doubt true that on 2-3-1957 the other respondents who were respondents along with the deceased respondent had applied for bringing all the sons, daughters and widow of the deceased on record. But that was a subsequent application and it will not have the effect of making the application of the appellants in this appeal dated 17-12-1956 wanting in bona fides.
23. Reference was also made to the decisions in 1961 Jab L J 230 and 1961 Jab LJ 1276 : (AIR 1961 MP 147). The former is the decision of the Division Bench consisting of Dixit C. J. and Pandey J. Observations in the former go to support the stand of the appellant rather than of the respondents. In that case their Lordships distinguished that case from the case reported in AIR 1945 Nag: 53 (supra) by observing that the rule of substantial compliance and sufficient representation has no application to a case where-none of the legal representatives of a dead litigant are brought on record within limitation. Thus in a way it upholds the view regarding substantial compliance with the provisions of Order 22 Rule 4 and sufficient representation of the deceased party. As regards the second case, it was a case of all the legal representatives of the deceased appellant were not brought on record.
Shivdayal J., held that having regard tothe nature of the relief sought for in theappeal it abated as a whole. In that case thedecision in AIR 1945 Nag 53 (supra) wasnot brought to his Lordship's notice. Thequestion regarding substantial compliance andsufficient representation of the estate was notconsidered. The learned Judge relied upon thedecision in Lilawati Bai v. Gangadhar AIR1953 Nag 12. The point pressed in the lattercase was whether the appeal could have beei*pressed by some only out of the entire bodyof legal representatives Of the deceased appellant by reason of Order 41 Rule 4. TheirLordships negatived that contention relyingupon the Full Bench view in Ramphal Sahuv. Babu Satdeo AIR 1940 Pat 346. There toothis specific question was neither raised nor considered.
24. For these reasons the decisions ofthe Courts below holding that the appealpreferred by the present appellant in the Courtbelow had abated is erroneous. Consequentdismissal of that appeal therefore ought notto stand. That order, as also the orderrelating abatement passed by the lower appellate Court are set aside and the case issent back to the lower appellate Court fordisposal of the appeal on merits. The appellantis entitled to the costs of this appeal. Costsin the Courts below will abide the final result.