M.B. Sharma, J.
1. This appeal is directed against the judgment dated October 28, 1970 of the learned Additional District Judge Shri Ganganagar under which he dismissed the appeal filed by the appellant on the ground that it is abated.
2. Vishvanath and Laxmi Narain filed a suit against the appellant in the court of learned Civil Judge Hanumangarh, in the suit For a declaration to the effect that the plaintiffs were jointly owners of the suit property and that the sale deed in favour of defendants Nos. 2 and 3 Parmanand and Kewal Ram by Nathu Ram defendant No. 1 does not affect the rights of the plaintiff was claimed. After the trial the learned Civil Judge, Hanumangarh under judgment and decree dated March 30, 1966 decreed the suit of the plaintiff for both the reliefs. An appeal was filed and when the appeal was pending in the court of District Judge, Ganganagar Vishna Nath one of the plaintiff respondent died on July 21, 1966. An application under Order 22 Rule 4.C.P.C. for bringing the legal representatives of Vishna Nath was filed on August 31, 1966 wherein it was mentioned that Vishna Nath has left one son behind Ram Swroop. That application was allowed but later on it appears that it came to the notice that besides Ram-swaroop Vishvanath had Madanlal another son and Mst. Parnidevi and Inder Devi daughters of predeceased daughter Yashoda Devi. The learned Additional District Judge holding that Ramswaroop does not sufficiently represent the estate of Vishvanath deceased held that the appeal abates.
3. It may be stated at the very out set that even the learned Additional District Judge has observed that Madanlal had gone in adoption and for the disposal of appeal before him he has assumed the fact of adoption of Madanlal. Thus only Ramswarap son of Vishvanath and two daughters of predeceased daughter of Vishvanath were the legal representatives of Vishvanath. As already stated earlier Ramswaroop had been brought on record as legal representatives of deceased Vishvanath within time prescribed by law. This Court in I.L.R. 1955 Raj. 77 held that where an application is made within time for impleading only some of the legal representatives of a deceased defendant or respondent, the estate can be said to be sufficiently represented by these legal representatives, and therefore there cannot be abatement, provided there Is no collusion or fraud in leaving out the other legal representatives and the applicant has exercised due diligence to find out all the legal representatives. That those whom he mentions are the only legal representatives. It was further observed that if later on the party comes to know of the other legal representative who is left out the Court should exercise its discretion by allowing the party to bring the left-out heirs on the record even after the period of limitation of 90 days has expired. The learned Addl. District Judge himself while referring to the authority cited before him at end of para 9 has observed 'on the basis of these authorities it may be said that if some of the legal representatives have been brought on record within time, they sufficiently represent the estate of deceased and left out representatives may be brought on record after the expiry of the period of limitation. The principle of representation of estate of the deceased will save the suit from abatement.' But thereafter refering to the authorities it has been observed that in the facts and circumstances of this case Ram Swaroop did not alone sufficiently represent the estate of the deceased Vishwanath. It may be observed here that the learned Addl. District Judge fell into an error. He observed that the two daughters of the pre deceased daughter of Vishwanath are not members of the family of Ram Swaroop and they do not sufficiently and substantially represent him. The question of representation of the estate of Vishwanath was involved and the question was not as to whether the two daughters of the pre-deceased daughter of Vishwanath represent the estate of Ram Swaroop. But for this error it appears that in the facts and circumstances of this case the learned Addl. District Judge would have held that Ram Swaroop sufficiently represents the estate of Vishwanath deceased. There does not appear to be any collusion nor any negligence can be ascribed to the appellants for having not brought on record the other two daughters of pre-deceased daughter of Vishwanath. The daughter Yashoda Devi had died and the appellant could have had no knowledge that there was some daughter Yeshoda Devi who has left two more daughters.
4. That the view which I have taken above, the appeal was liable to succeed but for one new development during the pendency of the appeal. The development is that Laxmi Narayan the other plaintiff also died & application in this Court was filed on behalf of Ram Swaroop that Laxmi Narayan died on 12-7-72. An application was not filed in this Court for bringing the legal representatives of deceased Laxmi Narayan respondent No. 2 on record. Thus the appeal abated. Because a decree was joint in favour of Laxmi Narayan and Vishwanath & therefore the possibility of conflicting decrees in case the appeal only abates qua Laxmi Narayan cannot be denied. This is in view of State of Punjab v. Nathu Ram : 2SCR636 . The appeal not only abates qua Laxmi Narayan but also abates Ram Swaroop.
5. Though in the application which was filed in this Court on 15-4-80 it was mentioned that Laxmi Narayan died without leaving any heir but that application was not accompanied by an affidavit, but an affidavit has been filed of Shiv Kumar S/o Laxmi Narayan deceased that Laxmi Narayn left heirs namely Shiv Kumar and one Durga Devi. Thus in view of this affidavit it cannot be said that Laxmi Narain had died without leaving any heir. No application giving reasons for setting aside abatement has been filed in this Court and, therefore no question of considering the case as to whether the abatement should be set aside arises. Therefore, the application of Ram-Swaroop dated March 23, 1981 that as no steps having been taken for setting aside the abatement of the appeal, the appeal should be dismissed deserves to be allowed.
6. In the result the appeal having abated in the aforementioned circumstances is dismissed as having abated. There shall be no order as to costs.