1. A field which was joint family property belonging to two co-paceners was sold by one of them Muthuraman Chetty. In 1918 the other co-parcener filed a suit for partition and separate possession of his half share. Muthuraman Chetty was the first defendant in that suit. He died during the trial and his sons Adaikappa and Palaniappa were substituted. The suit was dismissed on February 24, 1923. Plaintiff appealed and his appeal was allowed on August 28, 1925. Some of the defendants filed a second appeal in the High Court and this was dismissed and finally on February 27, 1926, the trial Court having divided the land gave the plaintiff a decree. Up to the last Adaikappa and Palaniappa remained on the record as the representatives of the deceased vendee. They had a common defence and appeared by the same Vakil.
2. In 1927 the suit now under appeal was filed on behalf of the minor son of Palaniappa. He declared that Palaniappa had died in January 1924, pending the hearing of the first appeal, and that this fact was fraudulently kept from the knowledge of the several Courts in which the suit was thereafter litigated, and sued for a declaration that all proceedings subsequent to the first decree of the trial Court should be declared null and void. At the trial the District Munsif did not decide the issue of fact whether Palaniappa had died in January 1924 but assuming that he had, held that the appeal which was then pending did not on that account abate.
3. This decision was affirmed on first and second appeal. Varadachari, J., (who appears to have taken it as a proved fact that Palaniappa died in 1924) while accepting the general proposition that a decree obtained after the death of a defendant cannot bind his representatives unless they had been made parties to the suit, observes:
The position in the present case was that the suit had originally been instituted against the plaintiffs grandfather and all that was required for the purpose of upholding the jurisdiction of the Court to deal with the matter to the end, was that the estate of the grandfather should continue to be duly represented. On the death of the grandfather his two sons were brought on record; that is, the estate was represented by two persons as legal representatives.
4. And he answers in the negative the question:
Does the estate that was at first represented by two persons as legal representatives and is later on represented by one of them only, cease to be represented for the purpose of that litigation
5. And the learned Judge goes on to say:
The difference has to be kept in view between cases in which the original party to the action dies and his legal representatives is brought on the record... and cases in which only one of several representatives brought in as such during the pendency of an action dies, and the estate continues to be represented by the remaining legal representatives... I am of the opinion that in the second group there is no lack of representation of the estate, that the remaining representatives can as well represent the estate as the original group did.
6. In that view we have no hesitation in concurring. Learned Counsel for the appellant contends for the position that by the original decree dismissing the suit against appellant's uncle and father these two acquired a right of their own in the property so that when appellant's father died pending appeal and the appeal and second appeal were decided without anyone being substituted for him, and appellant's rights in the property which had descended to him from his father were not affected. The answer to this argument is two-fold. By the decree while it was still under appeal Palaniappa acquired no final right in the property. Secondly, the subject of the litigation was not the title of Ralaniappa in the property but the title of his father Muthuraman Chetty. What the Courts were then deciding was whether Muthuraman had acquired a title in the property in defeasance of the suit claim. And if the plaintiff had been brought on the record it would not have been in substitution of his father Palaniappa but of his grandfather Muthuraman Chetty.
7. Again looking at the matter from the point of view of the plaintiff in that suit who is the first respondent here--it is clear that everything was done to make him believe that Palaniappa was alive throughout the whole course of the proceedings. And at the final stage when the suit was remanded to the trial Court to pass a final, decree Palaniappa must have been represented in some way. The field could not have been divided by metes and bounds and final decree passed without notice to the parties. If Palaniappa was then dead it is difficult to see how his son's guardian could have remained in ignorance of these proceedings. Wilfully or negligently this guardian permitted this respondent to proceed with the suit as if Palaniappa were alive. And the preponderance of authority is 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 in the whole of the representatives. He can only act to the best of his knowledge. Learned Counsel for the appellant relies on the Privy Council decision Wajid Ali Khan v. Puran Singh 51 A 267 : 114 Ind. Cas. 601 : A.I.R. 1929 P C 58 : 49 C L J 141 : 33 C W N 318 : 29 L W 423 : (1929) M W N 220 : 1929 A L J 85 : 56 M.L.J. 301 : 56 I A 80 : Ind. Rul. (1929) P C 113 . In that case there were four respondents and one died during appeal. The appeal proceeded without his representatives being substituted. It was held that the appeal abated and the decree did not affect his rights. But that was a case where each plaintiff had a separate and individual right of pre-emption. It was merely an example of the ordinary rule. Nor does Pukhra] Jeswaj v. Jamsetji Rustum Irani : AIR1927Bom63 , also relied on by learned Counsel apply to the facts of this case. There wrong persons were brought on in place of a deceased respondent and it was held that the decree did not affect the rightful heirs. But even in such a case it has been held recently in our own Court that in certain circumstances the substitution of a wrong person will save the suit from abatement. Chaturbhuja Das v. Rajamanicka Mudali 54 M 212 : 129 Ind. Cas. 469 : A.I.R. 1930 Mad. 930 : 32 L W 862 : (1930) M W N 991 : 60 M.L.J. 97 : Ind. Rul. (1931) Mad. 277. There the deceased defendant left his estate by will to a nephew. The plaintiff brought on as his legal representatives his widow who was disputing the will, and who was in possession of part of the estate, and whom he bona fide believed to be the proper legal representative. It was held that the widow was interested in defending the estate and sufficiently represented the estate. It is nor necessary, however, in this case to consider these cases where a wrong person was substituted. Here the right persons were substituted and the only question for decision is that propounded by Varadachariar, J. 'Was the deceased sufficiently respresented after the death of one of them?' There is ample authority for the proposition stated above that a suit does not abate merely because all the representatives of a deceased party have not been brought on the record. See Lilo Sonar v. Jhagar Sahu : AIR1925Pat551 , in the latter case it is stated.
When an appellant applies for the substitution of such of the heirs of the deceased respondents as he bona fide believes to be in existence the appeal does not abate.
8. How much stronger is the case here where all the proper heirs were brought on in the first instance and remained on the record till the end? It may be that one of them had died but the appellant (respondent here) did not know this. So far as his knowledge went Muthuraman Chetty's heirs were all on the record and the suit was contested up to the last stage by one of them at least, who was competent to contest it and interested in contesting it. A case in the Lahore High Court Begam Lal v. Jannat Bibi 98 Indian Cases 612 98 Ind. Cas. 612 : A.I.R. 1927 Lah. 6 : 28 P L R 287 : 7 Lah. 438 is to the same effect.
9. Lastly, the learned Counsel for the appellant cites a case of the Bombay High Court Shankar Bhai Manoo Bhai v. Motilal Ramdoss 49 Bom. 118 : 85 Ind. Cas. 197 : A.I.R. 1925 Bom 122 : 26 Bom. L R 1217. In that case an uncle and nephew sued as tenans-in-common for the possession of property. The nephew died during the suit and his widow came on the record as his legal representative. The plaintiffs obtained a decree. During the appeal the widow died and appellants applied to have her husband's uncle, already, on the record as 1st plaintiff, declared her heir. This application was disallowed and the appellants took no steps to bring on her real heir. It was held that the appeal abated against the latter. But this was merely the ordinary case of a party to a suit with a distinct and separate interest of her own dying during the suit and no steps thereafter taken to substitute her legal representatives.
10. In the result we dismiss the appeal with costs