1. This is an appeal by the plaintiffs from a suit which they had instituted for recovery of khas possession or in the alternative recovery of possession jointly with defendant 1. There was originally a prayer for Wasilat but the same was withdrawn with liberty to institute a fresh suit for the purpose. The suit was originally instituted by one Kedari Mondal. He died during the pendency of the suit and upon that his widow and his daughter applied to be substituted in his place. An order was made for such substitution and the suit proceeded with these two persons as the plaintiffs. Afterwards as appears from the judgment of the learned Munsif, the defendant preferred an objection on the ground that Kedari had left two other heirs, one of the name of Samir and the other of the name of Felu, they being cousins of Kedari and were residuaries under the Mahomedan law. The Munsif dealt with this objection in these words:
Admittedly Kedari left no son. Then according, to Mahomedan law the widow gets two annas, the daughter gets eight annas and the residue goes to Samir and Felu, if they be cousins of Kedari. But this omission to make Sami and Felu patties does not vitiate the suit. The plaintiffs, the widow and daughter claimed the entire four annas of Kedari. If by law they cannot get it then they can claim their ten annas.
2. On the merits, the Munsif found that Samir and Felu were really cousins of Kedari and that the plaintiffs could at best get a 10 annas share and no more. As regards the other question that arose on the merits the learned Munsif held that the purchase alleged to have been made by Kedari on which the plaintiffs claim in the suit rested was not approved and that Kedari had no possession. The Munsif accordingly dismissed the suit. The plaintiffs, that is to say the widow and the daughter of Kedari, thereupon preferred an appeal. Before the Subordinate Judge, at the hearing of the appeal the respondents, that is to say, the defendants in the suit, took a preliminary objection to the effect that the appeal was incompetent as the suit had abated because of all the heirs of Kedari not having been made parties to the suit. The Subordinate Judge dealt with this matter as a preliminary point and on considering the evidence came to the same conclusion as the Munsif, namely, that Samir and Felu were also heirs of Kedari. Having come to this finding, the Subordinate Judge proceeded to hold that as all the heirs of Kedari were not substituted on the record the whole suit had abated. He relied upon a decision of this Court in the case of Fajor Banu v. Rohim Bux Bhuiya : AIR1929Cal26 . It appears also that at the hearing of the appeal the pleader for the plaintiffs filed a petition asking that the plaintiffs might be allowed to bring Pelu and Samir on the record if they were found to be the heirs of Kedari. The learned Subordinate Judge, however, held that the whole suit had already abated even when the suit was pending in the trial Court and that these persons could not be legally made parties at the stage at which that application was made. In this view of the case, the learned Subordinate Judge, without going into merits, dismissed the appeal holding that the suit had abated.
3. Plaintiffs have then preferred this second appeal. In the appeal it has been urged on behalf of the plaintiffs that when the substitution had already been made by the trial Court the question before the Subordinate Judge was not really a question as to whether the suit had abated or not by reason of all the heirs of Kedari not having come forward to apply to be substituted in his place, but that the real question was whether the two heirs of Kedari, namely, the widow and the daughter who had been substituted in the place of Kedari were entitled to proceed with the appeal, that is to say, with the prayer which they had made in the plaint. It has been argued further that although in such a state of things the prayer for khas possession was not maintainable yet in view of the fact that the sharers of these two persons were not disputed it should have been held that they were entitled to go on with the suit and the appeal in so far as their claim for khas possession jointly with defendant 1 was concerned, which, as already stated, was one of the prayers in the plaint. On behalf of the respondent, however, reliance has been placed upon the decision in the case of Fajor Banu v. Rohim Bux Bhuiya : AIR1929Cal26 , upon which the learned Subordinate Judge has relied and to which reference has already been made. The argument on behalf of the respondent is that an application by some of the heirs of a deceased appellant is not an application within the meaning of Order 22, Rule 3 of the Code, and that when such an application is made the Court should regard it as not a proper application under that rule, but should, on finding that there are other heirs of the deceased appellants, reject the said application as one not made in accordance with law.
4. The argument is that inasmuch as in the present case it was only two of the heirs of Kedari who had made the application no order for substitution should have been made on it, but that the Court should have proceeded to deal with the matter as if no application had been made for substitution within time and in that view of the matter should have dismissed the suit. Reliance for this position has been placed upon a number of cases to which I shall presently refer. The respondent as already stated strongly relies upon the following passage in the decision of this Court in the ease of Fajor Banu v. Rohim Bux Bhuiya : AIR1929Cal26 ,
On behalf of the appellants it is urged that Order 22, B. 3 does not apply because an application for substitution was duly made by the 'legal representative' of Abdul Majid within Order 22, Rule 3. In our opinion, 'legal representative' in Order 22, Rule 3 means the legal representative or representatives of the deceased plaintiff, or all the representatives of whom the representative applying knew or ought to have known: (see Ghamandi Lal v. Amir Begum (1894) 16 All 211, and Haidar Hussain v. Abdul Ahad (1908) 30 All 117.) It well may be that if one or more of the legal representatives are unknown or all unwilling to join in the application under Order 22, Rule 3, different considerations will arise, and that a bona fide application by all the representatives who are willing to join in making the application will be a sufficient compliance with Order 22, Rule 3: see Bhikaji Ram Chandra v. Purshottam (1886) 10 Bom 220, Musala Reddi v. Ramayya (1900) 23 Mad 125 and Abdul Rahaman v. Shahad-ud-din AIR 1920 Lah. 223.
5. Now, it cannot be gainsaid that an application in order to be a proper application in consequence of which no abatement would be possible must be one made by all the heirs of a deceased person. But if an application is made by some of the heirs and nothing is stated as to whether there are other heirs in existence or not or whether the other heirs if in existence had refused to join in the application or not, when an order for substitution has already been made on the application such an order cannot possibly merely for that reason be regarded as an order made illegally or without jurisdiction upon the view that the application itself was one which did not come within the purview of Order 22, Rule 3. It is quite open to a Court when an application for substitution is made and the Court finds that all the heirs of a deceased person have not come forward to apply to be substituted in his place to refuse to make an order for substitution upon the ground that there are other heirs who ought to have joined in the application. Similarly, the Court would be perfectly justified in refusing to make an order for substitution upon an application of this character if it finds that it was not bona fide made or that other persons who ought to have been informed about or asked to join in the application were not so informed or asked.
6. But I am not prepared to hold that if some of the heirs make such an application disputing the right of other persons to claim as heirs and proceed to maintain that application by taking up the position that the other persons are not heirs, the Court as soon as it finds that the applicants are not the entire body of heirs is precluded from making an order for substitution in their favour and cannot substitute them reserving of course for its consideration the question as to whether such persons should be permitted to maintain the proceedings in the place of the dead person.
7. It has been argued on behalf of the respondent that it is necessary in order to maintain that application as a proper one that it should be distinctly stated that the other heirs had been informed and they had refused to join. I do not think that there is any sound reason at the back of any such proposition, if it is to be regarded as a proposition of universal application. It cannot be laid down that in all cases it is the duty of the applicants who find it to their convenience to come forward and apply to be substituted to go and beg of other persons who may not be willing to come forward and join with them. The whole question therefore is whether the persons who have been substituted are persons who are competent to maintain the appeal and the suit. It may well be pointed out that so far as this Court is concerned it is well settled that an order allowing a substitution or setting aside an abatement passed by a trial Court cannot be questioned in an appeal from a decree in view of the provisions of Section 105, Civil P.C, and the trial Court having already made an order for substitution in favour of the appellants it was not open to the appellate Court to hold that such substitution was wrongly made. My attention has also been drawn to certain other cases amongst which I consider it necessary to refer to one and that is the case of Musala, Reddi v. Ramayya (1900) 23 Mad 125. In the decision of the learned Judge in that case will be found reference to several other cases and the whole principle has been discussed.
8. But it will be seen also that the learned Judges in that case expressed the view that where an application had been made by some of the heirs not joining with them the other heirs owing to their unwillingness to join with them or for some other reason but in consequence of a bona fide belief that it was unnecessary for them to make a joint application on behalf of all, the mere fact that all the heirs had not joined would not make the application one not entertainable under the Code for the purpose of substitution. It is quite true that in the present case it has been found as a fact that the persons who have been left out were really two of the heirs of the deceased plaintiff. But their right as such heirs was disputed and nothing can be found which it could be said that they did not entertain the bona fide belief in their mind that the other persons had no right to come in and join with them as plaintiffs in place of the deceased plaintiff. I am of opinion therefore that the learned Subordinate Judge, in holding that the suit had abated notwithstanding that the order for substitution had been made by the trial Court in favour of the present appellant, had not taken the correct view of the law or of the circumstances of the case. In my opinion, the real question for consideration of the learned Subordinate Judge was whether it was open to the plaintiffs who were the appellants before him and who had substituted themselves in the place of the deceased plaintiff to proceed with the appeal, that is to say, with the prayers contained in their plaint in the suit and if so, to what extent.
9. Now, from a decision of this Court in the ease of Hari Charan Moulik v. Kali Pada Chakrabarti : AIR1929Cal519 , it would appear that in the circumstances such as these where the prayers for khas possession is not maintainable by reason of the fact that all the persons who should have joined as plaintiffs in the suit were not on the record, the Court is at liberty to make proper orders enabling some of those parties who may in the circumstances be entitled to claim joint possession with the defendant to amend their plaint and proceed with the suit thereafter. It has been argued on behalf of the respondent that case is distinguishable because of the fact that in the present case there was only one plaintiff and an application for substitution was made on his death by some only of his heirs whereas in the case aforesaid there were several plaintiffs some of whom had died and in their place no substitution bad been made. I do not think there can be any such distinction on principle. The case just cited in my opinion should be regarded as affording a true guide for the Court in so far as the present case is concerned. Following the decision in that case the order that I propose to make is to set aside the decree from which the present appeal has been preferred and send the case back to the Court of the learned Subordinate Judge in order that he may allow the appellants before him to amend their plaint, by striking out therefrom such of the prayers as are not maintainable at their instance and in the absence of the other heirs of Kedari, and then to allow them to proceed with the appeal in so far as the remaining prayers are concerned. The learned Subordinate Judge will deal with the merits of the case and consider and deal, with all other questions that will arise in connexion with the suit and the appeal before him. So far as the costs of this appeal are concerned, I make no order.
10. Leave to appeal under Section 15, Letters Patent, has been asked for. But I do not think that it is a fit case in which such leave should be granted.