S. H. SHETH, T. U. MEHTA, J. ( 1 ) THIS appeal arises out of the suit filed by the original Plaintiff Holedin Sayaid Meheboob Alikhan (since dead) in the Court of Civil Judge Senior Division at Surat for obtaining a declaration that he has got a right to withdraw the amount of Rs. 33 681. 35 out of the total amount of Rs. 1 84 177. 3 deposited by the Government in Land Reference Case No. 46 of 1961 in the same Court. The amount of Rs. 1 84 177. 3 is the amount which is awarded for the acquired land bearing survey Nos. 1651 1707 and 1711 of Ward No. 4 at Surat. The deceased Plaintiff was admittedly not a party to the above referred compensation proceedings and therefore he has filed this suit to obtain his share in the said amount. ( 2 ) IN order to understand the disputes involved between the parties in this appeal it will be necessary to state shortly a few facts which form the back ground. These facts areas under:- It is an admitted fact that the above referred Survey Numbers which are acquired under the provisions of Land Acquisition Act originally belonged to Navab Sardar Mir Muzafarhusen Khan who is admittedly the common ancestor of the parties. Out of these three survey numbers there was a building on Survey No. 1707 which is referred to in the proceedings before the Trial court as Mahel meaning Palace. The remaining two survey numbers namely 1651 and 1711 constitute the land sorrounding this Palace. The record of the case shows that Sardar Mir Muzafarhusen Khan (who is hereinafter shortly referred to as the deceased Navab) was staying in this Palace along with his family. This Navab was also the owner of an Inam village known as Utiyadara and was receiving income of the agricultural lands of this village. ( 3 ) ON 6th September 1929 the deceased Navab made a Wakf salaulad of his above referred two properties namely Palace situate at Surat along with his adjoining lands and the agricultural land belonging to village Utiyadara. We shall refer to the terms of the settlement of Wakf at a later stage. ( 4 ) ON 2nd November 1933 the said Navab died leaving behind him one son named Sardar Mir Hafizuddin Ahmedkhan and one daughter named Humayunnissa Begum. We shall refer to the terms of the settlement of Wakf at a later stage. ( 4 ) ON 2nd November 1933 the said Navab died leaving behind him one son named Sardar Mir Hafizuddin Ahmedkhan and one daughter named Humayunnissa Begum. The original Defendant of this case who is appellant of this appeal and whose name is Mir Ghulam Ghos Mahmed Khan is the son of the above referred Mir Hafizuddin Ahmedkhan. The daughter Humayunnissa Begum died on 7th November 1938 leaving behind her the deceased plaintiff Holedin Sayaid Maheboob Alikhan and three daughters. ( 5 ) THE record of the case reveals that after the death of the deceased Navab on 18th January 1936 a settlement was arrived at between his son Hafizuddin and the heirs of his daughter Humayunisa in respect of the property left by him (the deceased Navab ). As for the settlement of Wakf made by deceased Navab it was agreed that if any person for any reason got the Wakf cancelled then the property settled by the said Wakf would revert to the heirs of the settlor. ( 6 ) IT is an admitted position that Mir Hafizuddin the son of the deceased Navab died on 25th June 1943 According to the terms of the Wakf the settlor had appointed him as the first Mutawalli of the Wakf and had further provided that his heirs in the male line would succeed him as next Mutawallis. Therefore the appellant of this appeal who is the grand-son of the deceased Navab claims to be the present Mutawalli of the Wakf. ( 7 ) ANOTHER fact which is admitted is that the Palace above referred to was originally built in the year 1707 and for want of repairs it had become dilapidated and therefore it was pulled down by orders of the Municipality. The land on which this Palace was built together with the sorrounding it was ultimately acquired by the State and on 7 April 1961 the Land Acquisition Officer gave his Award according to which compensation of Rs. 4 4 117. 3 was awarded. In this compensation proceedings the three daughters of Humayunnisa (the daughter of the deceased Navab) had claimed their shares from the amount of compensation. However the original plaintiff Holedin Saiyed Mahebub Alikhan who was the husband of Humayunisa had not put forward any claim for his share. 4 4 117. 3 was awarded. In this compensation proceedings the three daughters of Humayunnisa (the daughter of the deceased Navab) had claimed their shares from the amount of compensation. However the original plaintiff Holedin Saiyed Mahebub Alikhan who was the husband of Humayunisa had not put forward any claim for his share. It is found that in this compensation case a reference was made to the Trial Court under sec. 30 of the Land Acquisition Act. The Trial court apportioned the amount of Rs. 89 817. 18 as the shale of the three daughters of Humayunnisa. As the deceased plaintiff was not a party to this proceeding there was no question of apportioning his share. ( 8 ) THE pertinent point to be noted at this stage is that in the reference proceedings under the Land Acquisition Act the Trial Court interpreted the deed of settlement creating Wakf and came to a conclusion that the said Wakf was invalid so far as the Palace and adjoining lands were concerned because the settlor had not made any ultimate gift to charity. ( 9 ) IT appears that thereafter the matter was brought to this court where it was registered as First Appeal No. 472 of 1962. A Division Bench consisting of M. U. Shah and B. KMehta JJ. disposed of that appeal on 28/29-4-70 holding that the deed of settlement evidencing Wakf did make an ultimate charity of both the properties including the Palace and adjoining land and therefore it was valid The said Bench also held that the amount of compensation which was awarded for the acquisition of Palace property got impressed with the character of trust and therefore it gave directions under sec. 32 of the Land Acquisition Act. We are told that being aggrieved by this decision of this Court the parties have preferred appeals to Supreme Court after obtaining leave of this Court. These appeals are registered in Supreme Court as C. A. Nos. 2100 and ( 10 ) IT should be noted here that the original plaintiff Holedin Saiyed Mahebub Alikhan died pending suit in the Trial Court on 28-8-1963. On his death six persons who are the present respondents were brought as his legal representatives representing his Estate. Out of all these six legal representatives respondent Nos. 1 2 and 3 are the daughters of the deceased while respondent Nos. On his death six persons who are the present respondents were brought as his legal representatives representing his Estate. Out of all these six legal representatives respondent Nos. 1 2 and 3 are the daughters of the deceased while respondent Nos. 4 5 and 6 are his sisters. There is no dispute about the fact that all the six respondents completely represented the Estate of the deceased Plaintiff in the Trial Court. The Trial court thereafter passed a decree in favour of the Estate of the deceased plaintiff by giving a declaration that the deceased plaintiff had 1/12th share in the amount of compensation awarded for the Palace property and therefore the plaintiff should be allowed to withdraw a sum os Rs. 33. 681. 35 out of the deposited amount of compensation. ( 11 ) AGAINST this decree the original defendant Mir Ghulam Ghos Mahmed Khan who is the grandson of the deceased Navab has preferred this appeal. ( 12 ) NOW during the pendency of this appeal the respondent No. 4 whose name is Kadirunisha Begum died. However her legel representatives have not been brought on the record during the period of limitation. Therefore one question which is hotly debated between the parties during the course of the hearing of this appeal is whether for not bringing in the record of this appeal the heirs of the deceased respondent No. 4 the whole appeal abates or not. This question forms the subject matter of Civil Application No. 1330 of 1971. ( 13 ) BEFORE touching the merits of this appeal we would first dispose of the contention of Shri Vakil the learned Advocate for the Respondents No. 1 to 3 that the whole of this appeal abates because the legal representatives of respondent No. 4 Kadirunisha Begum have not been brought in the record of this case. In support of this proposition Shri Vakil has contended that if this appeal is ultimately decided in favour of the appellants then the decree passed by the Trial Court will be reversed so far as the respondents who are actually in the record of the case are concerned. But that would result in a contradictory decree because the decree of the lower court would stand as it is so far as the legal representatives of the respondent No. 4 who are not brought on record are concerned. According to Mr. But that would result in a contradictory decree because the decree of the lower court would stand as it is so far as the legal representatives of the respondent No. 4 who are not brought on record are concerned. According to Mr. Vakil therefore this is a case which is completely covered by the decision given by the Supreme Court in State of Punjab v. Nathuram A. I. R. 1962 S. C. 89. In this decision the Supreme Court has ruled that ordinarily the considerations which weigh with the Court in deciding upon the question whether the entire appeal has abated or not will be whether the appeal between the appellants and the respondents other than the deceased respondent can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. While making these observations the Supreme Court has also supplied the following three tests for a Court not to proceed with an appeal:- (I) When the success of the appeal may lead to the Courts coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Courts passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; (II) when the appellant could not have brought the action for the necessary reliefs against those respondents alone who are still before the Court and (III) when the decree against the surviving respondents if the appeal succeeds be ineffective that is to say it could not be successfully executed. ( 14 ) THE principle adopted by this judgment has been affirmed in Rameshwar Prasad v. Shambehari Lal A. I. R. 1963 Supreme Court 1901 as well as in Sri Chand and Others v. M/s. Jagdish Pershad Kishan Chand and Others A. I. R. 1966 Supreme Court 1427. In the latter named case Shah J. (as then he was) who delivered the judgment for the court has added that the tests suggested in Nathurams case (supra) are not cumulative tests and therefore even if one of them is satisfied the Court may having regard to all the circumstances hold that the appeal has abated in its entirety. In the latter named case Shah J. (as then he was) who delivered the judgment for the court has added that the tests suggested in Nathurams case (supra) are not cumulative tests and therefore even if one of them is satisfied the Court may having regard to all the circumstances hold that the appeal has abated in its entirety. ( 15 ) THEREFORE the question is whether any of the above referred three tests supplied by the Supreme Court in Nathurams case can be utilised in support of Shri Vakils proposition that for want of legal representatives of the deceased respondent No. 4 this appeal has abated in its entirety. ( 16 ) AS stated above the first test is to see whether the success of this appeal would lead to a decision which would be in conflict with the decision as between the respondents who are already in record and the legal representatives of the respondent No. 4 who has died If such a conflict is possible then there would be no doubt that the first test supplied by the Supreme Court in Nathurams case would come into operation. We therefore propose to appreciate the question from this angle in the discussion which follows. ( 17 ) IT should be noted that if the decree which would eventually passed in this appeal is found to be a decree which is binding on all the respondents including the legal representatives of the deceased respondent No. 4 then there would be no question of the court passing any conflicting decree as between these respondents. In order to consider whether the decree which would be passed in this appeal will be binding on all the respondents including the legal representatives of the deceased respondent No. 4 we have to go back to the original cause of action on which the deceased plaintiff has instituted this suit. ( 18 ) IT may be recapitulated here that the case of the deceased plaintiff was that he has got 1/12th share in the amount of compensation lying in deposit with the court and therefore he should be allowed to withdraw the amount representing his 1/12th share from the said deposit. This original plaintiff died during the pendency of this suit in the trial court and on his death his Estate was fully represented by his legal representatives who are the plaintiffs respondents Nos. This original plaintiff died during the pendency of this suit in the trial court and on his death his Estate was fully represented by his legal representatives who are the plaintiffs respondents Nos. 1 to 6. Eventually when the trial court passed the decree appealed against it has passed the same 10 favour of the deceased plaintiff as is clear from the decree itself. Thus the decree against which this appeal is preferred is in favour of the estate of the deceased plaintiff and not jointly in favour of the personal estates of his legal representatives who are brought in record. These facts therefore reveal that (i) The suit was filed for the benefit of the estate of the deceased plaintiff (2) it was contested on the question whether the deceased plaintiff was entitled to receive 1/12th share from the deposited amount of compensation and (3) it ended in a decree which is passed in favour of the estate of the deceased plaintiff. It therefore follows that cause of action which survives in this appeal is the same which was in the original suit namely the right of the deceased plaintiff to obtain a share in the deposited amount of compensation. To put it in other words the cause of action involved in this appeal is with reference to the estate of the deceased plaintiff and not with reference to the personal estates of the present respondents. Therefore the real question which arises to be determined is not whether the estate of any of the heirs of the deceased plaintiff is sufficiently represented but it rather is whether the estate of the deceased plaintiff himself is sufficiently represented. If the same is sufficiently represented in this appeal there would be no possibility of a conflicting decree coming into existence if this appeal is evantually allowed because the decree which would be passed in this appeal would in that case bind the whole estate of the deceased plaintiff even though some of his legal representatives are not brought on record. ( 19 ) THE principle that a suit or appeal would not fail if the interest of the deceased party is substantially represented in the concerned proceedings is established by the Supreme Court in a number of cases. We shall therefore shortly refer to these cases. ( 19 ) THE principle that a suit or appeal would not fail if the interest of the deceased party is substantially represented in the concerned proceedings is established by the Supreme Court in a number of cases. We shall therefore shortly refer to these cases. ( 20 ) IN Daya Ram v. Shyam Sundari A. I. R. 1965 S. C. 1049 the Supreme Court has discussed this question and has observed that in such a case the only question that could arise would be whether the abatement which exconcessis took place as regards one of the respondents should have only partial effect i. e. the effect confined to the share of the deceased respondent as against whom the appeal has abated or whether it would result in the abatement of the entire appealthe question is answered by the Supreme Court by observing 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 record within the time limited by law there is no abatement of the suit or appeal 85 the impleaded legal representatives sufficiently represent the estate of the deceased and a decision obtained with regard to those on record will bind not merely those impleaded but the entire estate including those not brought on record. . ( 21 ) THE same principle is reiterated in N. K. Mohd. Sulaiman v. N. C. Mohd. Ismail Saheb A. I. R. 1966 S. C. 792 and Dolai Maliko v. Krushna Chandra Patnaik A. I. R 1967 S. C. 49. In this last named decision the Supreme Court found that in that case there was no question of any diligent or bona fide enquiry for the deceased appellants heirs must be known to the heirs who applied for being brought on the record. Even so the Supreme Court was of the opinion that unless there was fraud collusion or there were other circumstances which indicated that there had not been a fair or real trial or that against the absent heirs there was a special case which was not and could not be tried in the proceeding there was no reason why the heirs who had applied for being brought on record should not be held to represent the entire estate including the interest of the heirs not brought on the record. The Supreme Court further observed in this case that 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 exist. ( 22 ) OF course we are conscious of the fact that the above referred decisions of the Supreme Court were slightly on different facts inasmuch as in those cases some of the heirs of the deceased were brought on record while others were left out. So far as the instant case is concerned it is undoubtedly true that none of the heirs of the deceased respondent No. 4 has been brought on record. But as we have already pointed out we are here not considering the representation of the estate of deceased respondent No. 4 but we are considering representation of the estate of original plaintiff who has died during the penedency of the suit in the Trial court. The distinction between the case where original party to the suit dies and the case where one of the legal representatives of the original party dies is too obvious to be emphasised because in the cases which fall in the first category the question involved is regarding the direct representation of the estate of the deceased while in the cases falling within the second category the question involved is not regarding the representation of the estate of the legal representative who has died but it is regarding the representation of the estate of the original party whose estate was being represented through the deceased representative. ( 23 ) IT must be conceded that the Supreme Court decisions which we have referred to above are not directly dealing with the second Category of cases but in our opinion this does not make any difference so far as the basic principle is concerned. The ratio of these decisions of the Supreme Court is that if inspite of the absence of a legal representative of a deceased party the Court finds that the estate of that deceased party is sufficiently represented in a suit or appeal the said suit or appeal cannot abate in its entirety. The ratio of these decisions of the Supreme Court is that if inspite of the absence of a legal representative of a deceased party the Court finds that the estate of that deceased party is sufficiently represented in a suit or appeal the said suit or appeal cannot abate in its entirety. If we apply this ratio to the facts of the instant case we find that the suit before the trial court would not have abated for want of the presence of the deceased respondent No. 4 because the rest of the respondents could have sufficiently represented the estate of the deceased plaintiff in the trial court. Therefore if for want of the presence of the respondent No. 4 in the trial court the suit would not have abated it is difficult to comprehend why this appeal should abate for want of the legal representative of the very same respondent. Just as the remaining respondents could have effectively represented the estate of the deceased plaintiff in the trial court they can represent the same estate in this appeal as effectively. We find some support for the view which we are taking in the decision given by the Madras High Court in Muthuraman v. Adaikappa A. I. R. 1934 Madras 730 (2) wherein Varadachariar J. has brought out the point succinctly in the following observations:-IN dealing with these cases it seems to me though Mr. Krishnaswami Iyer for the appellant maintains to the contrary that a difference has to be kept in view between cases in which the original party to the action dies and his legal representative is not brought on record though there may be others having common interest with them and cases in which only one of several legal representatives brought in as such during the pendency of an action dies and the estate continues to be represented by the remaining legal representatives. AFTER pointing out this difference the learned Judge observed that the preponderence of authority is however in favour of the view that there Will be no abatement if at least some representatives are on record. ( 24 ) UNDER the circumstances we are of the opinion that the Estate of the deceased who has died pending the suit is sufficiently represented in this appeal and therefore this appeal does not abate in its entirety. .