Avadh Behari Rohatgi, J.
(1) This is a letters patent appeal from the order of a learned single judge dated March 3, 1972.
(2) These are the facts. On May 13, 1964, Chaudhary Naubat Singh, the plaintiff (the present respondent) instituted a suit for a declaration and injunction against five persons. These were : (1) Allahwala Arhti, (2) Noor Uddin son of Allahwala, (3) Ziauddin son of Allahwala, (4) Mohd. Muslim, and (5) Shri Kantoo. In the plaint the plaintiff alleged that the defendants were tenants of two shops near his shop and that they were obstructing his vehicles and carts from carrying goods and vegetables to his shop. He claimed a declaration that he, his servants, his carts and vehicles had a right to use the passage for going to the shop as an easement of necessity. He claimed a mandatory injunction directing the defendants to remove stone blocks which they had placed to create obstruction in the free movement and passage to the shop of the plaintiff. He also asked for a permanent injunction restraining the defendants from obstructing him in the use of the passage. The portion which was claimed as an easement of a necessity was shown in the plan.
(3) The suit was tried. The trial court dismissed the suit. On appeal the senior subordinate judge declared that the plaintiff shall have a 10 feet wide passage which he demarcated in the plan for passing and repassing. From his decision a second appeal was filed in this court.
(4) During the pendency of the second appeal Allahwalaied in September, 1969. No application was made to bring his legal representatives on record. That the defendant-appellant Allahwala had died and that his legal representatives had not been brought on record was brought to the attention of the court by the plaintiff-respondent by means of an application dated January 10, 1972. In reply it was not disputed that the defendant-appellant Allahwala had died in September, 1969. But it was maintained that the appeal did not abate on his death. The question of abatement was then heard and decided by the learned single judge. He came to the conclusion that the appeal had abated. From his decision the present appeal has been filed by the four surviving defendants-appellants whose names are set out above.
(5) It is not in dispute that the deceased Allahwala was the tenant of the adjoining shops. Nor is this in dispute that Noor Uddin and Ziauddin are his sons though in his life time they were not the tenants and their father alone was the tenant. It is admitted by the defendants that Mohd. Muslim and Shri Kantoo are employees and they have no inaterest in the matter in controversy. So we leave them out of consideration.
(6) The point at issue is whether appeal brought by the defendants, namely, Allahwala and his two sons, Noor Uddin and Ziauddin, will abate on the death of Allahwala. Now it is the admitted ground that Allahwala has left behind a widow and four daughters besides these two sons. The defendants maintain that though Allahwala has died his two sons are already on the record and as they were sued as defendants they are competent to continue the appeal. In brief the submission is that the death of Allahwala does not affect the maintainability of the appeal.
(7) Ordinarily speaking all the legal representatives of a deceased party have to be brought on the record. On Allahwala's death his widow and his four daughters had to be brought on record. It is true that Allahwala's two sons are already on record. But can they continue the appeal in the absence of the widow and daughters of Allahwala That is the question for decision.
(8) On behalf of the appellants-defendants it is argued that the two sons sufficiently represent the estate of the deceased Allahwala in appeal and the mere fact that the widow and the four daughters have not come on record does not affect the right to prosecute the appeal. For this the doctrine of sufficient representation is invoked. Numerous ruliags in support of the contention that the two sons sufficiently represent the estate were cited at the bar. It is not necessary to refer to all of them because the doctrine of 'sufficient representation' is well recognised in law.
(9) This question has now been authoritatively decided by the decisions of the Supreme Court in Daya Ram v. Shyam Sundari, : 1SCR231 , Muhammad Sulaiman Saheb v. Md. Ismail Saheb, : 1SCR937 , Dolai Maliko v. Krishna Chandra Patnaik, : AIR1967SC49 , Ram Das v. Deputy Director of Consolidation, : AIR1971SC673 and Harihar Prasad v. Balmiki Prasad, : 2SCR932 . These authorities uniformly hold that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who are the legal representatives of a deceased defendant or respondent and brings them on record, there is sufficient representation of the estate of the deceased and there will be no abatement of the suit or appeal unless there is fraud or collusion or there is a clear indication by circumstances that there could be no fair or real trial between the parties or that the absent heir has a special defense in which case the rule of representation of the estate may not apply. The doctrine of sufficient representation appears to have been evolved by the courts in order to achieve a just situation. This is vividly brought out in Ram Das v. Deputy Director of Consolidation (supra) where one legal representative of a deceased respondent who could not be brought on record earlier for want of particulars or information was allowed to be imp leaded at the Supreme Court stage.
(10) Counsel for the defendants-appellants presses the doctrine in her support. But this is a misapprehension. All the decided cases show that the doctrine has been applied where the plaintiff or the appellant in spite of diligent and bona fide enquiry was unable to find out all the heirs left by the deceased defendant or respondent. The doctrine was evolved to excuse a diligent plaintiff or appellant. The doctrine is essentially a concession to the fallibility of man The imp leaded legal representatives sufficiently represent the estate of the deceased where he was a defendant or respondent and a decision obtained with those on record will bind not only those imp leaded but the entire estate including those not brought on record. But there must be no fraud or collusion.
(11) In Dolai Maliko v. Krishna Chandra Patnaik (supra) it was pointed out that there is one difference between a case where the plaintiff or appellant dies and where the defendant or respondent dies. Where a plaintiff or appellant applies for bringing the heirs of the deceased defendant or respondent on the record the principle is well settled that if even after a diligent or bona fide enquiry some heir is left out the principle of sufficient representation can be invoked. But in a case where one of the appellants died and his heirs have to be brought on record there is no question of any diligent or bona fide enquiry for the deceased appellant's heirs must be known to the heirs who applied for being brought on the record. Even in such a case, it is true, the principle of sufficient representation can be invoked. But, as Wanchoo J. said :
'THISis 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'
Now in this case eleven years have passed since the death of Allahwala but no application has been made for bringing the widow and the daughters on record though the surviving appellants were made aware of the default on their part by the respondent who in his application dated January 12, 1972 pointedly stated that .the appeal had abated.
(12) The question arises: Can this appeal be contiaued in the absence of Allahwala's widow and his four daughters The answer is plain. Allahwala was a tenant. His tenancy was heritable. The widow, the four daughters and his two sons inherited the tenancy. They succeed to the estate of the deceased including tenancy rights. All of them have to be brought on record as appellants on Allahwala's death. If sons are already on record, as is the case, it was incumbent to bring the widow and daughters on record. This has not been done in spite of the fact that the surviving appellants were put on notice by the plaintiff-respondent when he moved the application on January 12, 1972. When once it is brought to the notice of the court that some of the legal representatives have not been brought on record and the appllant is made aware of this default on his part, it would be his duty to apply to bring those heirs on record so that the suit or appeal would be properly constituted. This is what was held in Daya Ram v. Shyam Sundari (supra) (p. 1054). From 1969 till today no application has at any stage been made for bringing the widow and the daughters on record because it was persistently maintained that the appeal in their absence can be continued.
(13) Counsel for the appellants referred us to Santosh Kumar v. Nandlal, and Kedar Nath v. Mohani Devi, 2nd (1972) Ii Del 936(7) in support of the contention that the two sons who are already on record can continue the appeal. But what has to be remembered is that Allahwala had also filed the appeal and he died during the pendency of the appeal. His widow and daughters have not come on record. They do not appeal. The real question is what is the effect of their absence on this appeal. This question has been considered by the Supreme Court in Rameshwar Prasad v. Shambehari Lal, : 3SCR549 . Allahwala was alive when the appeal was filed and was actually one of the appellants. Once an appeal is filed by all the defendants the provisions of Order 41 rule 4, Code of Civil Procedure become unavailable. Order 22, Civil Procedure Code operates during the pendency of the appeal and not at its institution. As the Supreme Court says :
'IFsome party dies during the pendency of the appeal, his legal representatives have to be brought on the record within the period of limitation. If that is not done, the appeal by the deceased appellant abates and does not proceed any further.'
(Rameshwar Prasad v. Shambehari Lal (supra) per Raghubar Dayal J.).
(14) The fatal flaw is that the widow and the daughters have not been brought on the record. The appeal by sons alone is not competent. By reason of the absence of the widow and daughters the appellate decree has attained finality. The result is that Allahwala's appeal has abated and the decree in favor of the plaintiff-respondent has become final against his legal representatives. The sons cannot take advantage of rule 4 of Order 41, Code of Civil Procedure. This is settled by Rameshwar Prasad's case (supra).
(15) It will, thereforee, appear that the Calcutta decision in Santosh Kumar v. Nandlal (supra) does not assist the appellants, namely, the sons as they cannot take advantage of Order 41 rule 4, Code of Civil Procedure. The Delhi decision in Kedar Nath v. Mohani Devi (supra) rests on the staled alternative ground that the learned judges were satisfied that the abatements ought to be set aside on the facts of that case and which in fact they did set aside by allowing the application under Order 22 rule 9, Civil Procedure Code and by bringing the legal representatives on record. This is clear when they say 'In the circumstances all that needs to be done is that the other legal representatives should be formally brought on record.' (p. 941).
(16) The situation in the present case is different. There is no application for bringing the remaining legal representatives, namely, the widow and daughters, on record. In their absence the appeal cannot be heard. No effective decree can be passed without all the legal representatives on record. It is true that the two sons are on iccord. But not all the legal representatives of Allahwala. The appellate decree against the widow and daughters has attaiaed finality consequent on the abatement of the appeal in so far as they are cortcerned. Suppose the appeal is heard and the sons succeed, then the appellate decree will have to be set aside qua them. This will result in inconsistent and contradictory decrees. This is always avoided. It must thereforee be held that there is abatement on the death of Allahwala because all his heirs were not brought on the record. (See State of Punjab v. Nathu Ram, : 2SCR636 .
(17) It was said that after the death of Allahwala his two sons have become the tenants of the shops and receipts of rent have been issued Mi their favor by the landlord and thereforee they are competent to continue the appeal. This argument must be rejected for several reasons. The most important reason is that the widow's and the daughters' rights in the tenancy are not extinguished merely by the fact that receipts have been issued in favor of the sons. Secondly, the recognition of the sons as tenants is a subsequent event and does not alter the position supposing this to be true. Thirdly the authenticity of the receipts and the fact that these persons have been recognised as tenants are neither admitted nor established. In any event this fact is wholly irrelevant to the question at issue because it has not been disputed that the widow, four daughters and two sons together inherit the estate of the deceased Allahwala including the tenancy rights.
(18) Next the appellants' counsel contended that the appeal does not abate because the right in contest was such that it could be claimed by the plaintiff only against Allahwala and no one else. After his death, it was argued, the right can no longer be claimed and thereforee there was no necessity to bring the widow and the daughters on record. This argument cannot be accepted. The plaintiff sued Allahwala on the ground that his, the plaintiff's, easement of necessity was being dealed by Allahwala. In essence the suit was for the removal of obstruction on the ground that the plaintiff had an easement of necessity. An easement of necessity is a right which can be claimed against the heirs of Allahwala. The declaration made by the court was binding on Allahwala. On his death his heirs are bound. Similarly the decree of mandatory injunction passed against Allahwala asking him to remove the stone blocks and the negative injunction restraining him. from creating the obstruction will bind the heirs of Allahwala on his death. To accept counsel's argument will mean that the plaintiff will be put to the trouble of filing a fresh suit every time there is an obstruction and every time the obstructor dies. Counsel said that the obstruction complained of was in the nature of a trespass and that obligation did not pass on to the heirs and thereforee there is nothing that remains to be decided. This argument loses sight of the fact that the claim was founded on the easement of necessity and the easement claimed was in respect of the property of the plaintiff against the defendant Allahwala who was the tenant of two adjacent shops. The plaintiff's right now upheld by the appellate court is not a precarious right which would perish on the death of his defendant. This argument thereforee fails.
(19) For these reasons the appeal fails and is dismissed with costs.