PUNITHAMMAL Vs. KRISHNA MUDALIAR

JUDGEMENT

(1.) THE petitioner's father filed an application under the Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960, for the eviction of the respondent on the ground of wilful default. Pending that, he died and thereafter a few of the legal representatives, leaving behind one of the daughters of the deceased, continued the application which resulted in an order of eviction. That was successfully contested before the appellate authority. Hence, against this appellate order setting aside the order of eviction, the present revision has been preferred.

(2.) THE contention of the learned counsel for the petitioners is that in so far as the estate of the deceased has been fully represented by the majority of the legal representives , the application must be held to be maintainable. This is opposed relying on two of the rulings reported in Doya Ram v. Shyam Sundar1 and Dalai Mallike v. krishna Chandra2, stating that it is not permissible in law. On a careful consideration of the above argument, I am of the view that inasmuch as the majority of the legal heirs are eager to prosecute the application for eviction, it is not open to the tenant to say that failure to implead one or two of the legal representatives would be Fatal to the petition. As a matter of fact in Day a Ram v. Shyam Sundar 1it is observed: "the almost universal consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who are the legal representatives of a deceased defendant or respondent and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and that a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought an record. " Again, in Dalai Mallike v. Krushna Chandra2, the position is clearly explained at page 51 thus: "it has been contended on behalf of the appellants that the principle of these cases applies to the present case and the fact that three of the heirs were left out would make no difference as the entire estate of Dolai deceased must be held to be represented by the widow and the major son who were brought on the record. It will be noticed that there is one difference between the present case and the two cases on which reliance has been placed on behalf of the appellants. This is not a case where a plaintiff or an appellant applies for bringing the heirs of the deceased defendant or respondent on the record; this is a case where one of the appellants died and his heirs have to be brought on record. In such a case there is no question of any diligent or bona fide enquiry for the deceased appellant's heirs must be known to the heirs who applied for being brought on the record. Even so we are of opinion that unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceeding, there is no reason why the heirs who have applied for being brought on record should not be held to represent the entire estate including the interests of the heirs not brought on the record. This is not to say that where heirs of an appellant are to be brought on record all of them should not be brought on record and any of them should be deliberately left out. But if by oversight or on account of some doubt as to who are the heirs, any heir of a deceased appellant is left out that in itself would be no reason for holding that the entire estate of the deceased is not represented unless circumstances like fraud or collusion to which we have referred to above exist. "