DOLAI MALIKO Vs. KRUSHNA CHANDRA PATNAIK

JUDGEMENT

(1.) This is an appeal by special leave against the judgment of the Orissa High Court. The brief facts necessary for present purposes are these. A suit was brought by eleven plaintiffs (who are appellants before us including Dolai Molliko for a declaration that the plaintiffs were tenants with occupancy rights in the lands in dispute. The suit was resisted by the defendants who are now respondents. The Munsif dismissed the suit. Thereupon there was an appeal by the plaintiffs. During the pendency of that appeal, Dolai Molliko appellant died in March 1958. An application was made within time for bringing on record his heirs, and these heirs were two namely, the widow and a major son of the deceased. No objection was made to this application and consequently the widow and the son of the deceased were substituted on record as heirs. The Subordinate Judge allowed the appeal and decreed the suit and gave the declaration prayed for by the plaintiffs. Then followed a second appeal to the High Court by the defendant-respondents. When the appeal was pending in the High Court it was discovered that Dolai had left three other heirs, namely, a minor son, a married daughter and an unmarried daughter besides the widow and the major son who had been brought on record as his heirs. Consequently an objection was raised in the High Court on behalf of the present respondents that as all the heirs of the deceased Dolai had not been brought on record, the appeal before the Subordinate Judge had abated in toto. The High Court accepted this contention and held that as three heirs had been left out and as there could be no question of want of knowledge of the existence of these heirs on the part of the widow and the major son who had applied for being brought on record, the appeal abated as it was not disputed that in the present case the appeal would abate in toto. In consequence the appeal before the High Court was allowed holding that the appeal before the Subordinate Judge had abated and the judgment of the Munsif dismissing the suit was restored. Thereupon the appellants obtained special leave from this Court; and that is how the matter has come before us.

(2.) The only question therefore which falls for consideration is whether the estate of Dolai deceased appellant was sufficiently represented before the Subordinate Judge by the widow and the major son. The question whether in similar circumstances an appeal abates came up for consideration before this Court in Daya Ram v Shyam Sundari, (1966) 1 SCR 231. In that case it was held 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, the impleaded legal representatives efficiently represent the estate of the deceased and a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record. In a case where the person brought on record is a legal representative 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."

(3.) The matter was again considered by this Court in N. K. Mohd. Sulaiman Sahib vs. N. C. Mohd. Ismail Saheb, C. A. No. 432 of 1963, D/- 23-9-1965. That was a mortgage suit, though the facts were slightly different from Daya Ram's case, (supra). In Daya Ram's case, (supra), the sole respondent had died and an application was made in time for bringing his heirs on the record but two heirs were left out in this application. The remaining heirs were brought on record and a preliminary objection was raised that as all the heirs had not been brought on record, the appeal had abated and it was this objection which this Court rejected in Daya Ram's case, (supra). In Mohd. Sulaiman's case, C. A. No. 432 of 1963, D/- 23-9-1965, however, the mortgagor had died before the suit was brought by the mortgagee against some of the heirs of the mortgagor but he left out two minor sons. The question then arose whether the two minor sons who had been left out from the array of defendants would also be bound by the decree passed in that suit. This Court followed the judgment in Daya Ram's case, (supra), and it was held that if the plaintiff had proceeded bona fide and after due enquiry and under a belief that the persons who were sued were the only legal representatives the whole estate would be bound including those heirs who were not arrayed as defendants. This Court further pointed out that "this rule wild of course not apply to cases where there has been fraud or collusion between the creditor and the heir impleaded or where there are other circumstances which indicate that there has not been a fair or real triad, or that the absent heir had a special defence which was not and could not be tried in the earlier proceeding."