P.N. Shinghal, C.J.
1. This petition for a writ of certiorari is directed against the appellate judgment Ex. F of the Board of Revenue dated November 8, 1967, by which the petitioners' first appeal has been dismissed on the ground that it had abated on the death of Aladin who was one of the co-appellants,
2. The suit giving rise to the impugned judgment was instituted in the court of Sub-Divisional Magistrate, Ratangarh, for the ejectment of Fakira, Aladin and Ladu as trespassers. It was dismissed by judgment Ex. D of the Sub-Divisional Officer dated June 24, 1963. The plaintiffs filed an appeal before the Revenue Appellate Authority. It was alowed by judgment Ex. E dated May 14, 1964, and the suit was decreed for ejectment of the defendants from the suit land. All the three defendants Fakira, Aladin and Ladu filed a second appeal to the Board of Revenue. Aladin died on April 15, 1966, during the pendency of the appeal, and his name was struck off from the array of the appellants on an application of appellant Fakira. An objection was then raised against the maintainability of the appeal, and the Board of Revenue dismissed the appeal as aforesaid by its impugned judgment Ex. F dated November 8, 1967 holding that Ladu, who was admittedly the son of the deceased Aladin, was not his sole heir and could not represent his other eight heirs. A review petition was filed against that judgment, but it was dismissed on December 20, 1967, by judgment Annexure G and this is why Fakira and Ladu have approached this Court for a writ of certiorari.
3. It is not in dispute before us that the provisions of Order XXII, Rule 3 or 4 of the Code of Civil Procedure will be applicable in the case of the death of one of the several appellants or respondents, or of the sole appellant or the sole respondent, so that if the right to sue survives, the court shall, on an application made in that behalf, cause the legal representative of the deceased appellant or respondent to be made a party and proceed with the appeal, and the question of abatement would arise only when no such application is made within the prescribed time. The question which therefore, arises for consideration is whether any of the legal representatives of the deceased Aladin was on the record already, or had been brought on the record within the prescribed time limit, and his estate could be said to be represented by him.
The point arose for consideration before a Division Bench of this Court in Poonam Chand v. Motilal, ILR (1955) 5 Raj 77 = (AIR 1954 Raj 287) where Motilal, one of the respondents, died during the pendency of the appeal and, while an application was made to bring two of his minor sons on the record within the prescribed time limit, the prayer for bringing his youngest son on the record was barred by time. It was held that, in the absence of fraud or collusion, the two legal representatives who were brought on the record within time sufficiently represented the estate of the deceased and it was not necessary to ask for bringing the third legal representative on the record. It was observed that as the existence of the third legal representative had come to notice, he could be brought on the record even after the expiry of the period of limitation. The case was thus decided on the principle of the sufficiency of the representation of the estate of the deceased.
4. The question of sufficiency of representation in such cases arose for consideration before their Lordships of the Supreme Court also in Daya Ram v. Shyam Sundari, AIR 1965 SC 1049. There two of the legal representatives of Shyam Sundari were not brought on the record within the time limit prescribed by law, and the question arose whether the omission rendered the appeal incompetent? Their Lordships examined the matter with due regard to the provisions of Order XXII, Rule 4, Civil P. C. and addressed themselves to the specific question whether it was the intention of the legislature that unless each and every one of the legal representatives of the deceased was brought on record, there was no proper constitution of the appeal, and answered it as follows,--
'The almost universal consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and that a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record.'
In laying this principle of law, their Lordships made a reference to a decision of their Lordships of the Madras High Court in Kadir Mohideen v. Muthukrishna Ayyar, (1903) ILR 26 Mad 230 where it was held that this would be so even if the person brought on the record was only one of the several legal representatives or was not the true legal representative. Their Lordships of the Supreme Court upheld the Madras view and went on to observe as follows,--
'In a case where the person brought on record is a legal representative we consider that it would be consonant with justice and principle that in the absence of fraud or collusion the bringing on record of such a legal representative is sufficient to prevent the suit or the appeal from abating. We have not been referred to any principle of construction of Order 22, Rule 4 or of the law which would militate against this view.'
It is thus beyond controversy that the question of abatement for failure to bring one of the legal representatives on the record within the prescribed time-limit, has to be examined with reference to the question of the sufficiency of the representation of the deceased, and an appeal will not therefore abate for the omission to bring the remaining legal re-representatives on the record in time. But when it is brought to the notice of the Court that some of the legal representatives have not been brought on the record, it would of course be the duty of the appellant to bring them also on the record to complete the array of the parties.
5. The decision in Daya Rain's case AIR 1965 SC 1049 was specifically considered and followed by their Lordships of the Supreme Court in Dolai Maliko v. Krushna Chandra Patnaik, AIR 1967 SC 49. There one of the appellants had died but some of his heirs were not brought on the record as his legal representatives within the prescribed time-limit. There was therefore no question of an enquiry into the bona [ides or the diligence on the part of those of the appellants who were brought on the record within the prescribed time-limit. Moreover it was a case where the heirs who had been left out included female heirs who could not be represented by the widow and the major son who had been brought on the record in time.
The High Court held that as all the heirs of the deceased had not been brought on the record, the appeal had abated because of the omission of a minor son, a married daughter and an unmarried daughter. Their Lordships of the Supreme Court addressed themselves to the question whether the estate of the deceased appellant could be said to be sufficiently represented in spite of that omission, and followed their earlier view in Daya Ram's case AIR 1965 SC 1049 that in a case where the person brought on record was a legal representative, it would be consonant with justice and principle that in the absence of fraud and collusion the bringing on record of such a legal representative was sufficient to save the appeal from abatement. Their Lordships went on to observe as follows,--
'........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 appellant's 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.'
6. This was followed by a decision of their Lordships of the Supreme Court in Mahabir Prasad v. Jage Ram, AIR 1971 SC 742. That was a case where a decree for rent was obtained by Mahabir Prasad, his mother Smt. Gunwanti Devi and his wife Smt. Saroj Devi. The execution court held that the decree was not executable and dismissed the execution application. Mahabir Prasad filed an appeal and impleaded Smt. Gunwanti Devi and Smt. Saroj Devi as party-respondents. Smt. Saroj Devi died during the pendency of the appeal, and her name was struck off on the application of Mahabir Prasad. The High Court dismissed the appeal holding that it had abated as the heirs and legal representatives of Smt. Saroj Devi were not brought on the record within the period of limitation. Their Lordships of the Supreme Court once again examined the principle of sufficiency of representation in such cases and held as follows,--
'Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate.'
So as Mahabir Prasad was one of the heirs of Saroj Devi, it was held that there could be no abatement merely because no formal application for showing him as an heir and legal representative had been made. It is therefore well settled that in a case where one of the legal representatives of the deceased appellant or respondent is already on the record, even though in another capacity, the proceeding will not abate simply because the other legal representatives are there and an application has not been made in time to bring them on the record,
7. In view of the above decisions of their Lordships of the Supreme Court, which declare the law on the subject, we have no doubt that as Ladu, who was one of the legal representatives of Aladin, was already on the record as an appellant in the second appeal before the Board of Revenue, it was not permissible for the learned members of the Board to hold that the appeal had abated, and we have no doubt that their impugned judgment suffers from an error of law apparent on the face of the record which must be corrected by way of certiorari.
8. We have gone through Rameshwar Prasad v. Shambehari Lal Jagannath, AIR 1963 SC 1901 to which reference has been made in the impugned judgment of the Board of Revenue, but that was quite a different case where the appeal had already abated against one of the appellants (under Order XXII, Rule 3, Civil P. C.) as no application had been made for bringing his legal representatives on the record within the prescribed time limit. But this is not so in the present case. As has been stated, Aladin's son Ladu was already on the record and the appeal had not abated against Aladin. That case cannot therefore govern the decision in the present case. We have also gone through Ramagya Prasad Gupta v. Murli Prasad, AIR 1972 SC 1181 on which reliance has been placed by Mr. Parekh on behalf of the respondents, but that was also a different case where one of the respondents had died during the pendency of the appeal and none of his legal representatives had been brought on record within the period of limitation prescribed for the purpose.
9. Mr. Parekh has invited our attention to the decision in Lilo Sonar v. Jhagru Sahu, AIR 1925 Pat 123; Mt. Hifsa Khatoon v. Mohammad Salimar Rahman, AIR 1959 Pat 254 (FB); Gauri Shankar Singh v. Smt. Jwalamukhi Devi, AIR 1962 Pat 392; Barmeshwar Nath Prasad Singh v. Babu Kuer Rai, AIR 1964 Pat 116 and Parhlad Jha v. Sonelal Mahton, AIR 1974 Pat 338. He has also made a reference to the decisions of learned Single Judges of this Court in Roop-chand v. Mithalal, AIR 1959 Raj 17; Jawari Mal v. Mangi Lal, 1961 Raj LW 132 and Nathu v. Laxmi Narain, AIR 1974 Raj 153. They were rendered on their peculiar facts and it is not necessary for us to consider them in details because of the declaration of the law by their Lordships of the Supreme Court in the cases mentioned above.
10. In the result, the writ petition is allowed, the impugned judgments Annexures F and G of the Board of Revenue dated November 8, 1967 and December 20, 1967 are set aside and the 'learned Members of the Board of Revenue are directed to dispose of the appeal according to the law, after bringing the remaining heirs of the deceased Aladin on the record to complete the array of the parties. Costs in this court will abide the final result.