RANDEO SAHANI Vs. ADYANATH TEWARY

JUDGEMENT

(1.) This second appeal by the plaintiffs can be disposed of on a short point of law and it is, therefore unnecessary to state the cases of the parties.

(2.) It appears that the plaintiffs' suit had been decreed by the trial Court and there was an appeal preferred by the defendant which was pending before the Fourth Additional Subordinate Judge, Chapra. During the pendency of this appeal, one Deni Sahani (Respondent No. 1 to the appeal) died on the 4th of September 1967. On the 27th September 1967, the appellant made an application for substitution of the heir of Deni Sahani, namely, Randeo Sahani, his son. By an order dated the 14th of November, 1967. Randeo Sahani was substituted in place of the deceased respondent. It appears that the hearing of arguments in the appeal started on the 1st of April 1970. On the 3rd of April, 1970, when the appeal before the lower appellate Court had still been heard only in part, an application was filed on behalf of the respondents that the aforesaid Deni Sahani had died leaving behind him not only a son, but three daughters as well who had not been impleaded in the appeal. It was further said that 'they had come to know only on the previous day that the appellant had filed a petition and got only the son substituted in place of the deceased respondent. It was further stated that the appeal had abated on that account. The Additional Subordinate Judge .directed the application to be put up on the next day for hearing. On that date, some sort of a rejoinder was filed bv the appellant. The application and the rejoinder both were directed to be placed for hearing on the 6th April, 1970. The parties were heard on that date and 7th of April, 1970, was fixed for orders. On that date, the learned Additional Subordinate Judge ordered as follows: "The petition filed by respondents that the appeal has abated due to the death of Jamuni respondent No. 1 and non-substitution of the heirs is heard along with the appeal." Jamuni obviously is a mistake for Dent because by the same order the learned Additional Subordinate Judge had already held that the appellant's lawyer did not press the point that the decree of the trial Court would be a nullity on account of the death of Jamuni. Obviously, therefore, he was referring to the petition in respect of the death of respondent No. 1, namely. Deni Sahani. It appears that the appeal was again heard on other dates and judgment was delivered on the 20th of April, 1970. The present second appeal is directed against that judgment and decree.

(3.) Learned Counsel for the appellants raised bv wav of a preliminary point that the lower appellate court should have ordered the appellant before it to implead the three daughters of deceased respondent Deni Sahani, who were his legal heirs, after his attention had been drawn to the omission. He contends that in such circumstances, the judgment of the Lower Appellate Court, which is one of reversal, ought to be set aside, because the other heirs of the deceased respondent Deni Sahani had a right to be heard by the Court below and 'the appellant wag under an obligation to implead them. He has fairly conceded that he cannot go to the extent of contending that the appeal itself had abated in view of the decision of the Supreme Court in several cases, the last one behig in the case of Dolai Maliko v. Krushna Chandra Patnaik. AIR 1967 SC 49. In the circumstances of the present case, the contention of the learned Counsel must prevail. Learned Counsel has rightly not contended that the appeal had abated on account of not bringing the other heirs of Deni Sahani on the record, for, it is well-established that where an appellant bona fide believes a particular person to be a legal representative of a deceased party and brings him on the record, even though he omits to substitute other persons who might be heirs, unless there is anv fraud qr collusion and unless the non-impleading, heirs have a special case, different from others, to be considered, the substituted respondent will be deemed to have represented the entire estate of the deceased. Reference may be made to the cases of Daya Ram v. Shyam Sundari, AIR 1965 SC 1049, N.K. Mohd. Sulaiman Sahib v. N.C. Mohd. Ismail Saheb, AIR 1966 SC 792 and the case of Dolai Maliko. AIR 1967 SC 49 (supra).