Jeo Raj v. Jeria — 1966 DIGILAW 166 (RAJ)

This appeal has been filed against the order of the Revenue Appellate Authority, Bikaner dated 14th February, ,64 whereby it was held that the appeal of the appellants against the judgment and decree of the Assistant Collector, Jalore dated 24-6-60 dismissing the plaintiff-appellants suit had abated, as a whole, on the ground that the appellants had failed to bring the widow of Fagga on record, within the prescribed time. The facts of the case are that during the pendency of the appeal Sonia respondent No. 1 and Fagga respondent No. 4 died. Fagga died sometimes in November, 1960, and an application was filed on behalf of the plaintiffs-appellants on 16-10-62 stating that Faggas son Poonia respondent No. 5 was already on the record, and was in possession of the field in dispute, and as there was no other heir, the deceased respondent Faggas name Shamlal be struck off and the appeal be heard in accordance with the law. As regards the respondent Sonia, an application was filed on 16-4-63 stating that Jeriya son of Sonia should be brought on the record as a legal representative of the deceased Sonia. In both the cases, the defendants respondents filed counter applications stating that Fagga had other heirs in addition to Poonia, namely, his widow and daughters and that Sonia had also left daughters, in addition to his son Jeria. In reply, it was admitted that Fagga had four daughters and Sonia also had four daughters. It was, however, asserted that they were married and were living with their husbands in other villages, and, as such, it was not necessary to have them brought on the record. It was contended that the estate of the deceased Fagga was duly represented by his son, who was already on the record and so was the estate of Sonia represented by his son Jeria. In support of the contention that the appeal would not abate if one of the legal representatives of the deceased was already on the record, several authorities were cited. The learned Revenue Appellate Authority came to the conclusion that in a suit for trespass, the married daughters might not be in physical possession of the field over which the trespass was alleged, but so far as the widow was concerned no such presumption could be made. The learned Revenue Appellate Authority came to the conclusion that in a suit for trespass, the married daughters might not be in physical possession of the field over which the trespass was alleged, but so far as the widow was concerned no such presumption could be made. Hence, relying on Roopchand vs. Mithalal (AIR 1959 Raj., page 17) the learned Revenue Appellate Authority held that the appeal had abated as a whole. The main contention of the learned counsel for the appellants is that the learned revenue appellate authority has fallen into an error in relying on Roop Chands case. This authority does not apply to the facts and the circumstances of the present cases in as much as, in this case all the sons were in joint possession of the entire immovable property of their father and the son who was already on the record as a defendant was not the eldest son, who could represent the entire family. Their Lordships, therefore, held that the junior member, who was not alone in possession of the field could not present the entire estate. In the instant case the deceased Faggas eldest son Poonia is in possession of the entire field. He can, therefore, represent the entire estate. In support of this contention, he has sought reliance on Poonam Chand vs. Moti Lal (I.L.R. 1955 Rajasthan page 77). A detailed perusal of Roop Chands case supports the contention of the learned counsel for the appellants. In this case, a suit for the recovery of possession of the suit land against two joint trespassers, father and son, having been dismissed, the plaintiff filed an appeal against both the defendants. The father died during the pendency of the appeal, leaving behind him six sons of whom only one was on the record. An application to bring the other sons on record was dismissed as it was beyond time. It was found that the sons were in joint possession of all the immovable property, though they were living and messing separately and the son who was already impleaded as a defendant was not the eldest son. An application to bring the other sons on record was dismissed as it was beyond time. It was found that the sons were in joint possession of all the immovable property, though they were living and messing separately and the son who was already impleaded as a defendant was not the eldest son. It was also found that the plaintiffs and the defendants were living in the same village, and the former had joined the funeral ceremony of the deceased defendant and he did not explain why the application to bring the sons on the record was delayed for a long time. It was held that the appeal abated, as a whole, and not only against the deceased defendant, because, in the circumstances, it could not be held that the son who was impleaded as a defendant substantially or sufficiently represented the estate of the deceased. It was observed that where one of the respondents died pending an appeal against the dismissal of a suit for recovery of possession, the broad test to determine whether the whole appeal abates is whether the continuance of the appeal would result in two inconsistent decrees, or would result in the emergence of a decree, which could be rendered futile by the other persons in possession, who are not properly before the Court. Now, the facts and the circumstances of the present case are not on all fours with the above case. In this case, the only son of Fagga is already on the record impleaded as co-defendants. The question which arises is whether he sufficiently represents the estate of the deceased and whether the failure of the appellants to bring on record his sisters and mother would be fatal to the appeal. A parallel case may be found in Idol Shri Madhavanarayanji temple Madanmohanlalji, Ujjain Appellant vs. Narayandas Shrikishan (AIR 1966 M. P. 79). In this case, some of the legal representatives of the deceased respondent were already on the record. The rest of them, not having been brought on the record within the prescribed time limit, the question arose whether the appeal would abate as against the latter legal-representatives and, consequently, as a whole. In this case, some of the legal representatives of the deceased respondent were already on the record. The rest of them, not having been brought on the record within the prescribed time limit, the question arose whether the appeal would abate as against the latter legal-representatives and, consequently, as a whole. Having examined the case law on the subject, their Lordships came to the conclusion that the preponderance of the view on the basis of these authorities seems to be that where on the death of a defendant or a respondent some one or more of his legal representatives are brought on the record, and there is neither any fraud or collusion, the estate of the deceased party is fully represented and, consequently, the suit or appeal does not abate against him. It was observed that the position is different if no one is brought on the record in the place of the deceased, and the estate goes unrepresented. An equally liberal view was taken in Poonam Chand vs. Motilal by the Rajas-than High Court. It was held therein that where an application is made within time for impleading only some of the legal representatives of the deceased defendant or respondent, the estate can be said to be sufficiently represented by these legal representatives, and there cannot be abatement, provided there is no collusion or fraud, in leaving out the other legal representatives and the applicant has exercised due diligence to find out the names of all the legal representatives, and believes that those whom he mentions are the only legal representatives. In such a case, if the party later comes to know of the other legal representatives who have been left out, the court should exercise its discretion by allowing the party to bring the left out heirs on the record, even after the period of limitation of ninety days has expired by using sec. 5 of the Limitation Act. The facts of this case are that one of the respondents having died, during the pendency of the appeal, an application was moved to bring his legal representatives on the record. In this application, names of two of his minor sons were mentioned, and it was prayed that they should be brought on the record under the guardianship of their mother. In this application, names of two of his minor sons were mentioned, and it was prayed that they should be brought on the record under the guardianship of their mother. While processes were being issued in this connection, an application was based by the appellant praying that some lawyer be appointed as a guardian of the minors, as the mother was apparently not agreeable to act as a guardian. In this applications, a third son was also mentioned. The question arose whether the prayer to bring the third son as a legal representative was barred by time. Having examined the case law in detail, the learned Judges came to the conclusion that the consensus of opinion of the High Courts of India is that where some of the representatives have been brought on record within time, the estate can be said to be sufficiently represented by these legal representatives, and there cannot be abatement, provided there is no collusion or fraud, in leaving out the other legal representatives. It was, therefore, held that under the circumstances, where there was no fraud or collusion, the court should exercise its discretion by allowing the party to bring the left out heirs on the record, even after the period of limition and make use of sec. 5 for that purpose. In this connection a reference may also be made to Daya Ram vs. Shyam Sundari ( AIR 1965 S.C. 1049 ). Examining the scope of Order 22, Rr. 4,11, it was laid down therein, that where a plaintiff or an appellant, after diligent and bonafide enquiry, ascertains who the legal representatives of a deceased defendant or respondent are, and brings them on the record within the time limited by law, there is no abatement of the suit or appeal, the impleaded legal representatives sufficiently represents the estate of the deceased and a decision obtained with them on the record will bind not merely those, impleaded but the entire estate including those not brought on the record. In a case where the person brought on the record is a legal representative it would be consonant with justice and principle that in the absence of fraud or collusion, the bringing on the record of such a legal representative is sufficient to prevent the suit or the appeal from abating. In a case where the person brought on the record is a legal representative it would be consonant with justice and principle that in the absence of fraud or collusion, the bringing on the record of such a legal representative is sufficient to prevent the suit or the appeal from abating. It was further held by their Lordships that when once it was brought to the notice of the Court hearing the appeal that some of the legal representatives of the deceased respondent have not been brought on the record, and the appellant is thus made aware of this default on his part, it would be his duty to bring these others on record so that the appeal could be properly constituted. In view of this authority, the present appeal is bound to succeed, as in the instant case no fraud or collusion has been ascribed to the appellants. The only defect which the learned Revenue Appellate Authority, has found is that the widow of the deceased was not brought on the record within the prescribed time, although it is not denied that Faggas son is already on the record. In view of the authority cited above, the appellants would certainly be entitled to the benefit of sec. 5 of the Limitation Act. This contingency would, however arise only if it is held that Faggas widow is also a necessary party, that is, if it is found that Faggas widow is in joint possession of the disputed field and, there is a danger of two inconsistent decrees being awarded or there is the possibility of the emergence of a decree which could be rendered futile by the other person in possession who is not properly before the Court. We would, therefore, accept this appeal set aside the impugned order of the Revenue Appellate Authority and remand the case to him for proceeding in accordance with the law and the light of the observant ions made above, after determining whether Faggas widow is a necessary party.