Judgment The learned Munsif considered the effect of not substituting the heirs and legal representatives of deceased defendant Nos. 1, 3 and 4. The defendant's contention was that the suit abated as a whole. The learned Munsif heard the parties, gave effect to that contention and held that since the plaintiff failed to take any steps for substitution of the legal representatives of deceased defendant Nos. 1, 3 and 4 within the statutory time, the suit abated as a whole. Against that order, the present revisional application has been filed by the petitioner. 2. The learned Advocate appearing on behalf of the petitioner has contended that in view of the amendment made to Order 22, Rule 4(4) of the Code of Civil Procedure, by the amending Act of 1976, the Court has unfettered power to grant exemption to a party to make any substitution, where the deceased defendants did not appear and contest the suit. Previously, the provision of Rule 4(4), as amended by the Calcutta High Court, was controlled by those of sub-rule (3), which used the expression at the end "except as hereinafter provided". But the aforesaid expression appearing at the end of sub-rule (3) of Rule 4 was deleted by the amending Act of 1976. Hence; under the present amended Code, the Court has ample power to exempt the plaintiff from the necessity of substituting the legal representatives of deceased defendant Nos. 1, 2 & 4. Such application has been filed by him at present. The opposite party has filed an objection. But the Court should allow that prayer. The cases of (1) Velappan, in AIR 1969 Mad. 309 at page 315 and of (2) Rajnath v. Siva Prasad, in AIR 1979 Pat. 239 at page 245 have been cited to show that the Court can dispense with the substitution of the deceased defendant without setting aside abatement at any stage of the suit before the delivery of the judgment. 3. The learned Advocate appearing on behalf of the opposite party has cited the Bench case of (3) Nani Gopal v. Panchanan, in 59 CWN 304 at page 306 to show that under Order 22, Rule 4(4) of the Code, the Court has power to grant exemption only before and not after an abatement has taken place. The case of (4) Annapurna v. Harasundari, in AIR 1975 Cal. The case of (4) Annapurna v. Harasundari, in AIR 1975 Cal. 12 at page 14 has been cited to support this view. 4. It is now necessary to state the facts. The disputed property belonged to one Bepin Behari Das, who died on the 25th March, 1956. On the 11th January, 1952, he executed a deed of gift in favour of his three sons, Purna (defendant No. 2), Jagadish (defendant No. 3) and Ajit (defendant No. 4). By that deed nothing was given to his widow, Indubala, defendant No. 1. 5. On the 2nd December, 1959, Jagadish died leaving his widow and children, who were not brought on the record. Then on the 18th September, 1963, Ajit expired leaving some heirs. On the 16th September, 1976, Indubala also breathed her last leaving Puma (defendant No. 2) alone as her son. After her death, no substitution was made. The question arises, what is now the legal position. No petition for substitution was made to implead the heirs of Jagadish, Ajit and Indubala. But it is common case that in 1961 Ajit and Jagadish surrendered their interest in the property in favour of their brother, Purna (defendant No. 2). It has already been indicated that Indubala became widow before the Hindu Succession Act came into operation. She had only a widow's estate in Bepin Bihari's property and later such limited interest ripened into an absolute interest, vide the principles of the case of (5) Mahabir v. Sashibhusan, in 85 CWN 357. 6. The learned Advocate appearing on behalf of the petitioner has pointed out that in Title Suit No. 79 of 1978 filed by the plaintiff-petitioner against Purna Chandra Das and others, an application under section 151 of the Code of Civil Procedure was filed by the defendants, Purna Chandra Das and others. In the paragraph 7 of that petition, it has been stated by them that Jagadish and Ajit surrendered their entire interest in the disputed business in favour of defendant No. 1, Purna Chandra Das. That application was filed on the 25th November, 1978, i.e., after the death of Jagadish, Ajit and Indubala. 7. The learned Advocate appearing on behalf of the opposite party has stated that after Indubala's death, her interest would devolve on her sons, Jagadish and Ajit also and thereby their interests would be enlarged. That application was filed on the 25th November, 1978, i.e., after the death of Jagadish, Ajit and Indubala. 7. The learned Advocate appearing on behalf of the opposite party has stated that after Indubala's death, her interest would devolve on her sons, Jagadish and Ajit also and thereby their interests would be enlarged. But the surrender of the interest of Jagadish and Ajit was made in Puma's favour in 1961. 8. This argument does not stand to scrutiny because their mother expired only on the 16th September, 1976, as will appear from the learned Munsif's order. If the deed of gift, for which the present suit has been filed, is not held to be a genuine document, then Indubala cannot claim any interest in the alleged business. 9. There is another aspect of the case. In the case of (6) Ram Das v. Deputy Director of Consolidation, reported in AIR 1971 SC 673 at page 674, it has been stated that where two of the legal representatives of the defendants are already on the record and the name of the third legal representative cannot be ascertained, the appeal will not abate and he can be subsequently joined. In the cases of (7) Mahabir Prosad v. Jage Ram, in AIR 1971 SC 742 at page 744 and of (8) Harihar Prasad Singh & Ors. v. Balmiki Prasad Singh & Ors., in AIR 1975 SC 733 at page 748, it has been stated that where in a proceeding, a party dies and only one legal representative is already on the record in another capacity, it is only necessary that he should be described by a petition that he is the already on the record as a legal representative. Even if there are other legal representatives and no petition for impleading them is made within the period of limitation, the proceeding will not abate. 10. It is, therefore, clear that there are special circumstances to distinguish the Bench case of Nani Gopal v. Panchanan (supra). The first reason is that one of Indubala's sons, namely, Purna, was on the record, when she died. Secondly, it has already been stated that even in November, 1978, Puma Chandra Das asserted that he alone represented the entire interest of his deceased brothers, Jagadish and Ajit, and because of these distinguishing features, I am inclined to accept the submissions made on behalf of the petitioner. 11. Secondly, it has already been stated that even in November, 1978, Puma Chandra Das asserted that he alone represented the entire interest of his deceased brothers, Jagadish and Ajit, and because of these distinguishing features, I am inclined to accept the submissions made on behalf of the petitioner. 11. The learned Munsif acted with material irregularity in not considering this important aspect of the case. The prayer is, therefore, allowed for the ends of justice. The plaintiff-petitioner is exempted from the necessity of substituting the legal representatives of deceased defendant Nos. 1, 3 and 4. The Rule is, therefore, made absolute in the manner, indicated above, and the impugned order set aside without any order as to costs.