Dolai Molliko & Ors. v. Krushna Chandra Patnaik & Ors.
Wanchoo, J. 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 decla·
ration 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 defendants-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 reoord as his heirs. Conse
quently an objection was raised in the High Court on behalf of the
present respondents that as ail 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. Jn conse
quence the appeal before the High Court was allowed holding that
the appeal before the Subordinate Judge had abated and the judg
ment of the Munsif dismissing the suit was restored. Thereupon
the appellants obtained special neave from this Court; and that is
how the matter has come before us.
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 circumstainces an ap
peal abates came up for consideration before this Court in Daya
Ram v. Shyam Sundari('). In that case it was held that "where a
plaintiff or an appellant after diligent and bona fide enquiry
ascertains who the legid 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 sufficiently represent the estate of the deceased
and a decision obtained with them bn record will bind not merely
those impleaded but the entire estate including those not brought
(') (1965] lS.C.R. 231. L/S4SCI-4
SUPRJ:ME COURT REPORTS [1966] BUPP. s.c.R.
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."
The matter was again considered by this Court in N. K. Mohd.
Sulaiman Sahib v. N. C. Mohd. Ismail Saheb('). That was a mort- B
gage suit, though the facts were slightly different from Daya Ram's
case('). In Daya Ram's case ('), 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 remain-
ing heirs were brought on record and a preliminary objection was
rdised 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'.1 case('). In Mohd. Sulaiman's ca1e('l, how
ever, 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(') and it was held that D
if the plaintiff had proceeded bona fide and after due enquiry and
under a belief that the persons who were sued were the only legai
representatives, the whole estate would be bound including those
heirs who were not arrayed as defendants. This Court further
pointed out that "this rule will 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 B
that there has not been a fair or real trial, or that the absent heir
had a special defence which was not and could not be tried in the
earlier proceedings."
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 respon
dent 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 circumstanOes which indi
cate that there has not been a fair or real trial or that against the H
a~ent heir there wa1 a special case which was not and could not
!') [19661 l S.O.R. 93;. !'l [1965] r s.c.R. 231.
··~
' ...
DOLAI MOLLIKO v. K. o. PATNAIK (Wanchoo, J.) 211
be tried in the proceeding, there is no reason why the heirs who
have applied for being brought on record should not be ~eld to
represent the entire estate including the interests of the herrs 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 deceas
ed is not represented unless circumstances like fraud or collusion
to which we have referred above exist.
In the present case there is no question of any fraud or collu
sion; nor is there anything to show that there had not been a fair
or real trial, nor can it be said that against the absent heir there
was a special case which was not and could not be tried in the
proceeding in his absence. It may also be noticed that the respon
dents themselves did not object in the court of the Subordinate
Judge that some of the heirs of deceased Dolai had been left out
and the case proceeded there. as if the estate of Dolali deceased was
represented in full by the heirs brought on record. It was only in
the High Court that it was discovered that Dolai had left three
other heirs who had not been brought on the record. In the cir
cumstances we are of opinion thalt the estate of Dolai was fully
represented by the heirs who had been brought on the record in
the Subordinate Judge's court and that these heirs represented the
absent heirs also who would be equally bound by the result, and
there is no reason to hold that the appe~l before the Subordinate
Judge had abated on that ground.
We may in this connection refer to certain cases where a simi
lar view has been taken. In Abdul Rahman v. Shahab-ud-Din('),
the appellant had died and only his sons were brought on the
record and not his widow and daughters, though the appellant was
a Mohammadan. It was held that as the heirs who had applied for
F being brought on record as heirs and legal representatives of the
deceased appe.Uant bona fide believed that they were the sole heirs
and legal representatives of the decea~ed. the appeal did not abate
notwithstanding that in Mohammadan Jaw other persons would be
co-heirs of the deceased.
In Mohd. Zafaryab Khan v. Abdul Razaq('), it was held that
"when by an order which has become final, a certain person's
G · name has been brought on to the record of an appeal as the legal
representative of the deceased appellant, it is not open to the res
pondent to urge that the appeal has abated because some other
heirs have been left out."
In Ram Charan v. Bansidhar('), the sole appellant had died
H leaving two daughters. One of his daughters was brought on record
(') I.L.R. (1920) I Lah. 481.
L'85SCI-4 (a)
(') I.L.R (1928) I All. 857.
(1) I.L.R. (1942) All. 671.
26 BUPRBllE COURT llEPOBTS (1966) BUPP. 8.0.11.
as his legal representative but not the other. It was held that the A
substitution of one of the daughters as legal representative of the
deceased must be deemed to have been for the benefit of the entire
inheritance which came into being on his death, and the entire
estate was represented by her and there was no abatement of any
part of it.
In Babuie Shanti Devi v. Khodai Prarad Singh('), on the death
of the plaintiff in a suit to enforce a mortgage his sons were brought
on record but not his widow who had herself filed a petition stating
that she was not in possession of the properties of the deceased
plaintiff nor did she desire any interest in the family properties, it
was held that the failure to bring the widow on the record was a
mere technical defect and the suit did not abate.
In Jshwar/al Laxmichand Patel v. Kuber Mohan Lawar('), on
the death of the appellant, his son was brought on record as heir
on his application and the widow who also was an heir was left
out, it was held that it was proper that both the son and the widow
should have applied for being brought on the record but that the
appeal did not abate merely because the widow had not applied
as the estate was fully represented by the son. D
We are of opinion that these cases have been correctly decided
and even where the phrintiff or the appellant has died and all his
heirs have not been brought on the record because of oversight or
because of some doubt as to who are his heirs, the suit or the
appeal, as the case may be. does not abate and the heirs brought
on the record fully represent the estate unless there are circum· E
5tances like fraud or collusion to which we have already referred
above.
. I
~
The appeal is therefore allowed and the judgment of the High ~
Court set aside. The case will now go back to the High Court for -
decision on the merits after bringing the heirs left out earlier on
the record. The costs of this Court will abide by the final result. P
...
Appeal allowed.
\ 1) A.I.R. (19i2) Pntna 340 (') A.LR. (1843) Dom. ~m.
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