T.U. Mehta, Ag. C.J.
1. The question which at present is required to be decided by us is whether both these appeals have abated on account of the facts, that Shiv Ram, the appellant No. 1 in both the appeals and Zalam Singh, appellant No. 6 in Appeal No. 36 of 1967 and respondent No. 8 in Appeal No. 4 of 1968 have died respectively on 4-6-1976 and 2-5-1970 and their legal representatives have not been brought on record within time. Respondent Bhagat Ram in both these appeals has, moved the court to pass an order that both the appeals have abated. Thereafter, the legal representatives of the deceased, Shiv Ram and Zalam Singh, have applied for their substitution in place of the deceased. Chamku, the widow of deceased Shiv Ram, has stated that she is illiterate and, therefore, did not know what would be the effect of her not being substituted as legal representative of her deceased husband Shiv Ram. The widow of Zalam Singh has applied for condonation of delay for being substituted as the legal representative of Zalam Singh on the ground that she was suffering from gout. Both these legal representatives have also applied for condonation of delay. These applications are registered as C.M.P. No. 1093 of 197? and C.M.P. No. 1094, of 1977.
2. Short facts forming the background of both these appeals would be necessary before we proceed to consider the question whether these appeals have abated on account of non-substitution of the legal representatives of the deceased within time.
3. There was one Pati Ram who had four sons, Gopu, Niram Das, Negi Ram and Sadh Ram. On the death of this Pati Ram his estate devolved on these four sons as joint family property. Out of these four sons of Pati Ram, NegiRam left behind him only a widow, namely, Panchmu, She died in 1960 A.D, without leaving any issue, but she is said to have transferred the properties inherited by her as widow by two sale transactions and one gift transaction to Bhagat Ram and Rajinder Kumar in the year 1956. Bhagat Ram became the sole owner of this property because Rajinder Kumar transferred his right, title and interest in his favour.
4. Since the heirs of the remaining three branches of the other three sons of Pati Ram did not recognise these transactions by Panchmu in favour of Bhagat Ram and Rajinder Kumar. Bhagat Ram filed a suit for declaration against these heirs to the effect that he has become the owner of 1/4th share in the property left by Negi Ram. This suit was registered in the lower court as Civil Suit No. 59 of 1964. The learned trial Judge decreed that suit in favour of Bhagat Ram and, therefore, Shiv Ram and some of the other heirs of the remaining three branches have preferred Appeal No. 36 of 1967 on 16-9-1967,
5. There was another dispute with regard to one of the houses gifted by Panchmu in favour of Bhagat Bam. Therefore, the heirs of Neeram Das, the second son of Pati Ram, filed the suit for possession of this house. It was registered as Civil Suit No. 2 of 1965, but the same was dismissed by the trial court on 18-8-1967. This suit was based on the allegation that Bhagat Ram was a trespasser. Since the trial Judge dismissed that suit, Shiv Ram and others have filed Appeal No. 4 of 1968.
6. During the pendency of both these appeals Zalam Singh died on 2-5-1970, Shiv Ram on 4-6-1976 and one Jotu, who is in the branch of Sadh Ram, the fourth son of Pati Ram, died on 24-1-1976.
7. So far as this last named person Jotu is concerned, she has left only one heir Nand Lal who is her son. This Nand Lal is already a party to both these appeals and, therefore, her legal representative is already on the record of the case. However, legal representatives of other two deceased persons, namely, Zalam Singh and Shiv Ram, have not been brought on record in time and, therefore, the question is what is the effect thereof.
8. In order to understand the relationship of the deceased with the remaining heirs of the four sons of the originalancestor Pati Ram, it would be necessary to state the pedigree which would not only show their inter se relations but also their interest in the joint family property which is involved in these two appeals:
| | | |
Gopu Niram Das Negi Ram Sedh Ram
| | | |
______________________________ | = Widow Panchmu _____________
| | | | | | died in 1960 | |
Zalam Surat Rukmi Devku Nihara | No issue. Bhudhi Dhani
Singh Ram (Dau.) (Dau.) Ram | Transferred by Singh Son Ram
died (Son) | | 2 Sales & Gift to =Widow (Son)
| Kafi died |
during | | Bhagat Ram and Prior to |
Pendency __________| | Rajindra Kumar appeal |
of appeal | | | in 1956 | |
on 2.5.70 Rajpal Tara | | |
| (Son) (Dau.) | _____|___ |
_______________________ | | | |
| | | Trikam Das Ram Anand |
3 3 Widow | (Son) (Son) |
Sons Daus. | |
| | | | | |
Shiv Ram Mirzu Ram Jeram Khambn Mat. II |
Son died (Son) (Son) (Dau.) (Dau) |
on 4.6.76 |
__|_________________ | | | |
| | | Hiru Ram Charanji Ram Chet Ram Balak Ram
Widow Dau. Dau. (Son) (Son) (Son) = Widow Jotu died on
Nand Lal (Son.)
This pedigree shows that, Pati Ram had four sons and all the heirs of his four sons except the heirs of Shiv Ram and Zalam Singh, who have died pending the appeals, are on record. Zalam Singh has left behind him three sons, three daughters and one widow but they are not brought on record.
9. The pedigree further shows that all the heirs of the second son of Pati Ram, whose name is Niram Dass, except the deceased Shiv Ram, are on record, Shiv Ram has died pending these appeals leaving behind him one widow and two daughters.
10. Shri Davinder Gupta, who appeared on behalf of the respondent Bhagat Ram, relied very heavily on the two decisions given by the Supreme Court, one in State of Punjab v. Nathu Ram reported in AIR 1962 SC 89, and the other in Ramagya Prasad Gupta v. Murli Prasad reported in AIR 1972 SC 1181. The ratio of both these decisions is that though no exhaustive statement can be made as to the circumstances under which an appeal in such cases cannot proceed, the courts generally apply three tests for determining whether an appeal would abate for the reason of not bringing legal representatives of a deceased party. These three tests are as under:
(1) When the success of the appeal may lead to the court's coming to a decision which may be in conflict with the decision between the appellant and the deceased respondent and, therefore, it would lead to the court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent.
(2) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court; and
(3) when the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed. The Supreme Court has further observed that these three tests are not cumulative tests and, therefore, even ifone of them is satisfied the court may dismiss the appeal.
11. According to Shri Gupta, all the three tests are satisfied in this case because, according to him, decree as against the interest of both the deceased persons Zalam Singh and Shiv Ram has become final as their legal representatives are not brought on record and, therefore, if this decree is now reversed in favour of the other heirs of Gopu and Niram Das there would be a decree of this Court which is contradictory to the decree passed by the trial court. He has also contended that Bhagat Ram could not have brought the suit for declaration without joining Zalam Singh and Shiv Ram as parties to the suit, and that without the heirs of Zalam Singh and Shiv Ram on the record the decree cannot be successfully executed by the present appellant Bhagat Ram even if he succeeds in this appeal.
12. We find that looking to the facts of the present case, it is the principle of the representation of the estate which would govern the point at issue. In spite of the above referred to three tests laid down by the Supreme Court, the Supreme Court has carved out an exception on the ground of representation of the estate in some of its decisions, two of which we shall presently refer to. The first decision which we propose to refer to is the decision given by the Supreme Court in N.K. Mohd. Sulaiman v. N.C. Mohd. Ismail reported in AIR 1966 SC 792. There the Supreme Court has held that ordinarily the court does not regard a decree binding upon a person who was not impleaded eo nomine in action. But to that rule there are certain recognised exceptions. Speaking about these exceptions, the Supreme Court has proceeded to say in this decision that where by the personal law governing the absent heir, the heir impleaded represents his interest in the estate of the deceased, there is an exception which is involved in the larger interest of administration of justice. The Supreme Court has further observed in this connection that if there is a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding on all the persons interested in the es1 ate. By making these observations the Supreme Court has cautioned that thecourt will undoubtedly investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to over-reach the court, aid the court will also enquire whether there was a real contest in the suit, and may for that purpose ascertain whether there was any special defence which the absent defendant could put forward, but which was not put, forward. After taking this precaution the court can come to a conclusion that the decree passed against the persons impleaded as heirs binds the estate even though other persons interested in the estate are not; brought on record. This principle, in the opinion of the Supreme Court, applies to all parties irrespective of their religious persuasion. In this decision, the Supreme Court has referred to other pronouncements of Madras and Orissa High Courts wherein this principle has been followed. This very same principle of substantial representation of the estate has been subsequently reiterated by the Supreme Court in Dolai Maliko v. Krushna Chandra reported in AIR 1967 SC 49. There, deceased Dolai was one of the appellants who had jointly claimed occupancy rights in the disputed property. Motion was made for bringing the legal representatives of this deceased Dolai within time but only two legal representatives were brought on record. Subsequently, it was found that three other legal representatives of deceased Dolai were left out and the question arose whether the estate of Dolai was sufficiently represented in appeal. The Supreme Court answered this question in the affirmative.
13. In view of these decisions, the question which arises to be considered Is whether in this case the disputed estate is sufficiently represented by other heirs of Gopu and Nirarn Das, the two sons of Pati Ram.
14. While considering this question, the most important fact to be borne in mind is that the heirs of Gopu and Niram Das claim the disputed property as joint family property and according to them they jointly represent 1/3rd shares of Gopu and Niram Das each. It should be recalled here that suit filed by Bhagat Ram is for declaration that he is the owner of 1/4th share in the suit property. Defence put forward by the heirs of Gopu and Niram Das is that Bhagat Ram has no right in the propertyand that each of the branches of Gopu and Niram Das jointly owns 1/3rd share in the disputed property. Thus, the heirs of Gopu and Niram Das who are already on the record do represent in these appeals the same interest which could have been represented by the heirs of deceased Zalam Singh and Shiv Ram who are not brought on the record. This is because of the fact that the interest of the heirs of Gopu and Niram Das is joint in estate governed by the doctrine of survivorship. These heirs being joint owners, each one of them could represent the estate jointly owned by the members of the branch to which he belongs, in the same manner in which other members of the same branch can represent. We thus find that this case is fully covered by the ratio of the above referred two decisions of the Supreme Court, because the heirs of Gopu and Niram Das, who are already on the record, sufficiently represent the estates of Gopu and Niram Das, even in absence of Zalam Singh and Shiv Ram, just as the heirs of Dolai, who were already on record, did, in the Supreme Court case of Dolai v. Krushna Chandra (supra).
15. Shri Gupta, the learned Advocate of the appellant Bhagat Ram relied upon the decisions given in Munshi Singh v. Babulal Singh (AIR 1977 Pat 29), Union of India v. Shree Ram Bohra (AIR 1965 SC 1531), Karimbhai v. Bai Mariambibi (AIR 1974 Guj 91) and Roop Singh v. Mahant Ram (ILR (1974) Him Pra 288). In none of these cases the principle of sufficient representation of the estate in question arose to be considered. Moreover, they were the cases of co-ownership and not of joint ownership.
16. When a co-owner dies, his inte rest can be represented only by his own legal representatives, and not by his co-owners. In case of joint owners, how-ever, the position is different because the surviving joint owners can represent the interest of the deceased joint owner as effectively as the heirs of the said deceased joint owner can, unless, of course, the peculiar facts of a given case reveal that the deceased joint owner had some adverse claims against the surviving joint owners.
17. Under the circumstnces, even if it is presumed for the sake of argument that the three tests supplied by the Supreme Court in State of Punjab v. Nathu Ram (AIR 1962 SC 89) (supra) are satisfied, the matter is clearly covered by the principle of representation as accepted by the Supreme Court in tha above referred two cases.
18. So far as Appeal No. 4 of 1968 is concerned, that has arisen out of the suit filed by Shiv Ram and others on the ground that Bhagat Ram and others are trespassers on the suit property. Therefore, if the legal representatives of Shiv Ram, Appellant No. 1 and Zalam Singh, respondent No. 8, are not brought on record, it would not matter because the remaining appellants can proceed in their own right to relief against the alleged act of trespass by Bhagat Ram and others. Therefore, even this appeal would not abate.
19. Under these circumstances, we hold that none of these appeals abates for want of the legal representatives of the deceased. Both these appeals, therefore, can proceed even in absence of the legal representatives of the deceased Zalam Singh and Shiv Ram. However, with a view to avoid any future litigation we exercise our power under Order 1, Rule 10, C.P.C. and add the heirs of deceased Zalam Singh and Shiv Ram as proper parties to both these appeals.
20. To make the record complete, we may, however, mention that we don't find that the heirs of deceased Zalam Singh and Shiv Ram have made out any case for condonation of the delay caused in being substituted as parties in the place of the two deceased.
21. Shri Bakshi Sita Ram takes notice on behalf of the heirs of Zalam Singh and Shiv Ram. The appellant shall carry out the amendment bringing these heirs on the record of this case within two weeks from now. C.M.P. Nos. 1093,1094. 1122. 1091, 1092 and 720 of 1977 in these appeals are accordingly disposed of.
22. Since both the appeals are very old, printing is dispensed with and it is ordered that as soon as their typed paper books are ready, they should immediately be put on board for disposal.