Ajit Kumar Singh v. Dinesh Prasad Singh — 1991 DIGILAW 389 (PAT)

Judgment B.Prasad, J. 1. This is an application filed under Order I, Rule 10, Order XXII, Rules 4 and 8 of the Code of Civil Procedure (in short the Cod.) and Sec. 5 of the Limitation Act. It has been filed on behalf of the appellant petitioner and has been received in the Court on 13-5-1991 (wrongly) (shows as 15-4-1991 by the Bench Clerk) and placed at Flag P. 2. In this petition, the petitioner has prayed to condone the delay in filing the application for setting aside abatement and for the substitution of the heirs and legal representatives of the respondents named in this petition. According to Paragraph 2 of this petition. Respondent No. 17, Ayodhya Prasad Singh, had died on 13-10-1987 leaving behind his two sons, three daughters and widow. Out of them, his two sons are already on record as Respondent Nos. 22 and 24 and a prayer has been made for setting aside the abatement and for substituting the names of the widow and three daughters of the deceased Respondent No. 17 in his place. 3. From Paragraph 4 of this petition, it appears that Respondent No. 21, Rajesh Kumar Singh, had died on 21-1-1989 leaving behind his widow, Sunita Devi and minor son, Soni Kumar. It has further been contended that there is no adverse interest between them. In Paragraph 6 of this petition, it has been stated that Respondent No. 20, Shailesh Kumar Singh, had died on 26-3-1991 leaving behind his heirs as mentioned in this petition. 4. In this petition, it has further been contended that defendant No. 2 of Title Suit No. 225 of 1971 is the present appellant. It has been filed against the order rejecting the application filed on his behalf under Order IX, Rule 13 of the Code for setting aside the ex pane decree passed in favour of the plaintiff-respondent. The plaintiff-respondent had filed T.S. No. 225 of 1971 before the Court of the Additional Subordinate II, Patna. This was a suit for partition of the share of the plaintiff-respondent in the joint family property. The prayer of the present appellant for setting aside the ex parte decree passed under Order IX, Rule 13 of the Code was contested only by the defendant opposite party Nos. 8 to 16 (Respondent Nos. 16 to 24 in the present appeal). However, at present Respondent Nos. The prayer of the present appellant for setting aside the ex parte decree passed under Order IX, Rule 13 of the Code was contested only by the defendant opposite party Nos. 8 to 16 (Respondent Nos. 16 to 24 in the present appeal). However, at present Respondent Nos. 52, 53, 55, 57 and 59 have filed the objection against the prayer of the appellant for condoning the delay, for setting aside the abatement and for substitution of the legal heirs of deceased Respondent Nos. 17, 20 and 21. At the time when this appeal was filed, the petitioner appellant was residing in the town of Patna. Subsequently, the petitioner shifted to Nalanda District where his father was posted as Sub-Divisional Agriculture Officer. The petitioner was residing with his father at Mohalla Moghul Kuan Sohsarai, District Nalanda. 5. The petitioner was informed by his Counsel, Shri Vijay Kumar Bhagat, that Respondent Nos. 16, 18, 19, 20, 22 23 and 24 had filed an application before the Court praying therein to pass an order that the appeal has abated on account of non-substitution of the heirs of the respondents named in the petition. This petition was dismissed for non-prosecution. Subsquently, the aforesaid respondents filed another application before the Court seeking the same relief as they had sought for in the earlier application. When the copy of this petition dated 8-1-1991 was served on the learned Counsel appearing on behalf of the petitioner-appellant, he sent a copy thereof to the petitioner through a letter on 10-1-1991 to the official address of the petitioners father for taking immediate steps for the substitution of the heirs of the deceased respondents. Unfortunately, in the meantime, the father of the petitioner was transferred from Biharshariff to Buxar, but the petitioner failed to inform his counsel about this transfer. The result was that the said letter could not reach the petitioner. Again the learned Counsel for the petitioner sent a registered letter to the petitioner which was served on him on 23-3-1991 asking him to furnish the dates of the death of the deceased respondents and the names of their heirs. However, in spite of the best efforts of the petitioner he could not know the names of the heirs of the deceased respondent Nos. 52, 53, 55, 57 and 59. However, in spite of the best efforts of the petitioner he could not know the names of the heirs of the deceased respondent Nos. 52, 53, 55, 57 and 59. Thereafter the petitioner received another letter dated 13-4-1991 from his counsel asking him to come to Patna for filing the petition for substitution of the heirs of the deceased respondents. On the receipt of this letter, the petitioner came to Patna and met his counsel and told him that in spite of his best efforts he could not ascertain the names of the heirs of the aforesaid deceased-respondents also he informed his counsel that Respondent No. 2. Shailesh Kumar Singh, had died. The petitioner was asked by his counsel at least to give the full particulars of the heirs and legal representatives of the deceased respondent Nos. 17, 20 and 21. It was under these circumstances that the petition was being filed. 6. From the aforesaid facts it would appear that the petitioner was diligent in dealing with the matter and there was no intentional delay and lach on his behalf. The delay in filing this application was only on account of unavoidable circumstances. Accordingly, it was prayed that the delay in filing this petition be condoned, the abatement be set aside and the heirs of the aforesaid deceased-respondents as mentioned in Paragraphs 2 to 5 be substituted. So far as respondent Nos. 52, 53, 55 57 and 59 were concerned, they were pro-forma defendants and none of them filed any objection against the application of the petitioner filed under Order IX, Rule 13 of the Code. Therefore, the petitioner is not required to file any substitution petition for substituting the heirs of the aforesaid deceased-respondents. It was, accordingly, prayed that the names of the deceased-respondents be expunged, the delay in filing of this petition be condoned, the abatement be set aside and the heirs and legal representatives of the deceased-respondent Nos. 17, 20 and 27 as mentioned in Paragraphs 2 to 3 of this petition be substituted in their places. 7. Respondent Nos. 16, 18, 19, 20, 22, 23 and 24 have filed a counter-affidavit on 17-5-1991 placed at Flag Q against this petition of the petitioner appellant. 17, 20 and 27 as mentioned in Paragraphs 2 to 3 of this petition be substituted in their places. 7. Respondent Nos. 16, 18, 19, 20, 22, 23 and 24 have filed a counter-affidavit on 17-5-1991 placed at Flag Q against this petition of the petitioner appellant. In this counter-affidavit it has been contended that the appellant-petitioner has concocted false story to the effect that he had himself shifted to Nalanda District where his father was posted as Sub-Divisional Agriculture Officer. Moreover, it is the duty of the litigant to keep contact with his lawyer no matter whether the litigant lives at one place or at another. The learned Counsel for the appellant came to learn on 14-9-1990 with respect to the death of the deceased-respondents when a copy of the petition filed under Order XXII, Rules 3 and 4 read with Sec. 151 of the Code was filed on behalf of these respondents and its copy was served on the learned Counsel for the appellant. The whole purpose of the appellant, who is the nephew of the plaintiff, Dinesh Prasad Singh, is to drag on and prolong the present litigation. So far as Schedule III properties are concerned they have been excluded from the ex pane decree and they exclusively belonged to defendant Nos. 16 to 24. However, Dinesh Prasad Singh and appellant, Ajit Kumar Singh, are in collusion with each other. The appellant knowingly did not take steps for substitution of the heirs of the deceased-respondents. The whole game of the appellant is to prolong the present litigation. Only when the appellant realised that on account of his own acts of omission there was the danger of being held that the present appeal had abated that he has come forward with his concocted case that his address was not known to his counsel and that he was not contacted by him. Under these circumstances, it has been prayed that the substitution petition as also the petition for condoning the delay be rejected. 8. It will be useful to narrate the circumstances under which the present petition for substitution has been filed. It appears that this appeal under Order XLIII, Rule 1(d) of the Code has been filed by the present appellant who figured as defendant No. 2 in T.S. No. 225 of 1971. 8. It will be useful to narrate the circumstances under which the present petition for substitution has been filed. It appears that this appeal under Order XLIII, Rule 1(d) of the Code has been filed by the present appellant who figured as defendant No. 2 in T.S. No. 225 of 1971. It is directed against the order dated 22-2-1986 passed by the Additional Subordinate Judge II, Patna, in Misc. Case No. 14 of 1982. By this order the learned Subordinate Judge had dismissed the application under Order IX, 13 read with Sec. 151 of the Code filed on behalf of the present petitioner-appellant for setting aside the order dated 19-6-1979 decreeing T.S. No. 225 of 1971. This petition of the present appellant was contested by opposite-party Nos. 8 to 16 before the learned Subordinate Judge, who after careful examination of the facts and circumstances of this case and the evidence on record dismissed the petition filed on behalf of the present appellant for the reasons stated in the impugned order. It is against this order that the present appeal has been filed. 9. From the office notes dated 10-9-1990 it appears that a substitution petition at Flag M filed under Sec. 151 and Order XXII, Rule 4(3) of the Code was filed by the respondents whose copy could not be served on the appellant. The order-sheet dated 11-9-1990 shows that the case was again ordered to be listed under the same heading on 12-9-1990. It was further observed that if by tomorrow the learned Counsel for the respondents did not appear and the copy of the petition at Flag M was not given to the learned Counsel for the appellant, the aforesaid petition shall stand rejected without further reference to a Bench. The order dated 12-9-1990 shows that in spite of the order dated 11-9-1990 none of the respondents who had filed the aforesaid petition placed at Flag M appeared before the Court. Only the learned Counsel for Respondent No. 5, who had not filed this petition had appeared. Under these circumstances, the petition placed at Flag M and filed on 18-4-1990 was rejected, 10. The order-sheet dated 17-9-1990 shows that Shri Keshari Singh, the learned Counsel appearing on behalf of the respondents, had prayed that this order rejecting the petition placed at Flag M be recalled. This prayer of Shri Singh was rejected. Under these circumstances, the petition placed at Flag M and filed on 18-4-1990 was rejected, 10. The order-sheet dated 17-9-1990 shows that Shri Keshari Singh, the learned Counsel appearing on behalf of the respondents, had prayed that this order rejecting the petition placed at Flag M be recalled. This prayer of Shri Singh was rejected. However, an observation was made that the respondents, if they so desire, were at liberty to file a fresh petition in this regard. The office note on the margin of the order-sheet dated 15-3-1991 shows that another petition under Sec. 151 and Order XXII, Rule 4(3) of the Code was filed on behalf the respondent Nos. 16, 18, 19, 20, 22, 23 and 24 and it was placed at Flag Z. The order-sheet dated 10-4-1991 shows that by this petition the aforesaid respondents had contended that Respondent Nos. 17, 21, 52, 53, 55, 57 and 59 had died and their have not been substituted. On this date the learned Counsel for appellant had appeared before the Court and had submitted that he had not taken any steps for substitution of the legal heirs of these deceased respondents and the Court may proceed to determine whether the whole appeal has abated or not. In view of this submission, it was held that this appeal had abated so far as these deceased respondents were concerned 6-5-1991 was the next date fixed for determining whether the whole appeal has abated or not. The order sheet shows that the learned Counsel appearing on behalf of the appellant had submitted before the Court on this date that so far the deceased respondent No. 17, Ayodhaya Prasad Singh was concerned, his sons were already on the record as Respondent Nos. 22 and 24. He further submitted that so far as the deceased respondent No. 21, Rajesh Kumar Singh, was concerned, his father was Respondent No. 16 and his four brothers were respondent Nos. 18, 19, 20 and 23. In reply, Shri Keshari Singh, the learned Counsel for the respondents had submitted that apart from them Respondent No. 21 has left behind his widow and a minor son and an affidavit to this effect was going to be filed on his behalf. So far as Respondent No. 17 was concerned, it was his submission that he has also got three daughters whose names will be disclosed in the counter-affidavit. So far as Respondent No. 17 was concerned, it was his submission that he has also got three daughters whose names will be disclosed in the counter-affidavit. At this stage, the learned Counsel for the appellant had submitted that so for as the deceased respondent Nos. 22, 23, 25, 52, 53, 55, 57 and 59 were concerned they were only proforma defendants and, therefore, their names may be expunged since their heirs are not required to be substituted. In view of this prayer the names of these aforesaid deceased respondents were expunged from the memo of appeal and it was held that this appeal had abated so far as these respondents were concerned. It was further ordered that the names of the deceased respondent Nos. 17 and 21 be also expunged. The order-sheet of this date further shows that before the Court the learned Counsel for the appellant had placed reliance on the case reported in 1984 BBCJ 163 (FB) and also on 1990(3) SCC 285 , in support of his contention that in a partition suit a branch of the defendant is represented the suit will not abate if all the heirs of that branch are not impleaded as parties. Reliance on these two decisions was also placed in support of the contention that if the heirs of proforma defendants were not substituted the suit or the appeal arising out of the partition suit will not abate. It was under these circumstances that the petition at flag P (as detailed in the earlier part of this order was filed in the Court on 13-5-1991 for condoning the delay and substituting the legal, heirs of deceased Respondent Nos. 17, 20 and 21. Its rejoinder in the shape of the counter-affidavit was filed in the Court on 17-5-1991 and has been placed at Flag Q. 11. The orders-sheet dated 17-5-1991 shows that on this dated both the parties were heard on the question whether the whole appeal has abated or not. On this date, the learned Counsel for the appellant had drawn my attention to the order dated 10-4-1991 according to which it was held that since not step for the substitution of the legal heirs of the deceased respondents was taken the appeal had abated so far as they were concerned. On this date, the learned Counsel for the appellant had drawn my attention to the order dated 10-4-1991 according to which it was held that since not step for the substitution of the legal heirs of the deceased respondents was taken the appeal had abated so far as they were concerned. On the said date, the learned Counsel for the appellant had further contended that the Court may proceeded to determine whether the whole appeal had abated or not. In this connection, it was pointed out on behalf of the appellant that in any view of the matter the whole appeal had not abated since branches of all contesting respondents were properly presented in this appeal. It was, therefore, his submission that there can be no question of res judicata so far as the question of law was concerned and, therefore, it may be determined whether the whole appeal has or has not abated even so far as Respondent Nos. 17, 21, 52, 53, 55, 57 and 59 were concerned. The order-sheet dated 5-7-1991 shows that Shri Keshari Singh, the learned Counsel for the respondents, had contended before the Court that since Respondent No. 21 had died and his heirs have not been substituted, it has to be held that the branch of this respondent in this partition suit was not represented. It was, therefore, his submission that the suit has abated as a whole. In reply, the learned Counsel for the appellant had drawn my attention to his petition dated 13-5-1991 placed at Flag P according to which a prayer was made for expunging the names of the deceased respondents, for condoning the delay and for setting aside the abatement as also for substitution of the heirs of the legal representatives of the deceased Respondent Nos. 17, 20 and 21. The order-sheet dated 17-7-1991 shows that Shri Chuni Lal, the learned Counsel appearing on behalf of the appellant had made his submission and has also relied on some of the case-laws. He also sought the leave of the Court to file written submission. Accordingly, both the parties were given the option to file written submissions. These written submissions were filed and were placed at Flags F and G respectively. The parties have been heard on these petitions in detail and by this order all the aforesaid petitions are being disposed of. 12. Accordingly, both the parties were given the option to file written submissions. These written submissions were filed and were placed at Flags F and G respectively. The parties have been heard on these petitions in detail and by this order all the aforesaid petitions are being disposed of. 12. From Paragraph 6 of the petition at Flag P, filed on behalf of the appellant dated 13-5-1991 it appears that so far as Respondent No. 20 was concerned, he had died on 26-3-1991 and his widow, two minor sons and one minor daughter have been sought to be substituted in his place. This application appears to have been filed in time. In the counter-affidavit at Flag Q filed on behalf of respondent Nos. 16, 18, 19, 20, 22, 23 and 24 on 17-5-1991 in Paragraph 3 it has been stated that no comment was made by the deponents with respect to Paragraph Nos. 1 to 7 of this petition of the appellant. From this it would appear that so far as respondent No. 20 is concerned, there is no dispute with respect of his heirs and since the prayer for substitution was made within time, let the heirs of deceased respondent No. 20 as mentioned in Paragraph 6 of this petition be substituted in his place and let the name of the deceased respondent No. 20 be expunged. 13. It is not in dispute that T.S. No. 225 of 1971 was a suit filed for partition of the joint family property. It is also not in dispute that respondent Nos. 17, 20 and 21 have died. So far as Respondent No. 20 is concerned, it has already been held that the prayer for substitution of his heirs have been made in time and, accordingly, his heirs have been ordered to be substituted in place of deceased respondent 20. In this petition at Flag P dated 13-5-1991 (wrongly shown to have been filed on 15-4-1991) it has been stated that Ayodhya Prasad Singh (Respondent No. 17) had died on 13-10-1989 leaving behind his widow, two sons and three daughters as his heirs. So far as two sons were concerned, they are already on record as respondent Nos. 22 and 24. However, his widow and three daughters are not on the record. So far as two sons were concerned, they are already on record as respondent Nos. 22 and 24. However, his widow and three daughters are not on the record. So far as Rajesh Kumar Singh (Respondent No. 21) is concerned, he is said to have been died on 21-1-1989 leaving behind his widow and a minor son who have not been substituted in his place. It may be mentioned here that Rup Narain Singh, father of Respondent No. 21 is already on the record as Respondent No. 16. From the present petition it would appear that respondent No. 21 had died leaving behind his widow and a minor son who are not on the record. 14. In this connection, I would like to make a reference to the case of Janak Sahu V/s. Anant Jha and Ors. -- in which the test has been led when the whole appeal can be said to have abated in case of the failure of the appellant to substitute the heirs of one of the deceased respondents. This is a Bench decision of this Court in whose Paragraph 4 it has been observed as follows: 4. The criterion to determine whether the entire appeal will abate in view of the abatement of the appeal against some of the respondents by reason of the failure to substitute the heirs of a deceased respondent., is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be contradictory decrees in the same litigation with respect to the same subject-matter. It is not permissible to allow the existence of conflicting decrees and appeal must be dismissed as a whole if the success of the appeal" would bring into existence such conflicting decrees. 15. The learned Counsel for the appellant has heavily relied on the case of Jagannath Singh V/s. Raju Bbagat and Ors. 1984 BBCJ 163 (FB). The first question formulated by this Full Beach was as follows: When some of the heirs of the deceased party are already on record and the rest of the heirs are not substituted, whether the proceeding becomes defective and abates or whether by application of the principle of representation by the heirs on record, the proceeding does not abate. The first question formulated by this Full Beach was as follows: When some of the heirs of the deceased party are already on record and the rest of the heirs are not substituted, whether the proceeding becomes defective and abates or whether by application of the principle of representation by the heirs on record, the proceeding does not abate. From the aforesaid decision it would appear that before the Full Bench two Miscellaneous Appeals, namely, M.A. No. 147 of 19/3 and M. A. No. 157 of 1975 were under the consideration. So far as Misc. Appeal No. 147/73 was concerned, it was filed by the sole plaintiff against an order dated 10-5-1967 passed in Title Appeal No. 49 of 1962 by the lower appellate court holding that the appeal had abated as a whole for non-substitution of one of the heirs, namely, the daughter in place of deceased respondent No. 1 even though his two sons were already on record as respondent Nos. 2 and 3. So far as Misc. Appeal No. 157/75" was concerned it arose out of T. A. No. 178 of 1968 in which a prayer was made for setting aside two sale-deeds executed by defendant No. 17 in his capacity as one of the trustees under the Bihar Hindu Religious Trust Act, During the pendency of the suit, the plaintiff filed an application for deleting the name of defendant No. 8 who was said to have died on 15-10-1974 and about which the plaintiff learnt on 16-3-1975. It was stated in this application that the sons of the deceased defendant No. 8 were already on record as defendant Nos. 9 to 12. However, he had left behind four other heirs, namely, four daughters whose names were disclosed in this petition in which a prayer was made to substitute their names also in place of the deceased defendant No. 8 after setting aside the abatement. This prayer was rejected by the trial court. After detailed discussions it was held by this Full Bench that when one or more heirs of the deceased defendant or respondent were on the record, then the state was fully represented in the suit or appeal, as the case may be, and the suit of appeal will not abate for not bringing on the record the other left out the heirs. It was further held that this will include a case where some of the heirs at their own initiative were brought on the record of the case. Also it was held that it may include a case where through the oversight or on account of the some doubt as to who the heirs are, any heir is left out to be brought on the record. It was held that still the estate of the deceased was fully represented by the heirs brought on the record. The left out heirs may subsequently apply to be brought on the record but there will be no abatement. 16. The aforesaid propositions of law as laid down by the Full Bench were, however, qualified by the following exceptions: (i) Where the heirs on record collude with the plaintiffs or the appellants. (ii) Where a special case could have been put forward by the left out heirs and they did not get an opportunity to present such cause in the proceeding ; and (iii) where there is an act of deliberate omission to include an heir while bringing the other heirs on record which may be said to be mala fide. It was further held that if one or more of the heirs of deceased defendant or respondent were on the record even in another capacity and the left out heirs were not brought on the record, still the estate of the deceased would be represented by the heirs on record and the decision will bind not only the heirs on record but the entire estate including those not brought on the record, unless the case comes under any of the exceptions mentioned above. Also it was held that it will be open the heirs on record to point out that they do not represent the interest of other heirs and in that case it would become the duty of the plaintiff or the appellant to make diligent and bona fide enquiry of bringing other heirs on the record in accordance with law. If, however, no such objection is taken then after the decision it will be deemed that there has been abandonment of technical plea of abatement. 17 From this it would appear that the principle of law as laid down by this Full Bench is subject to the three conditions as reproduced above. If, however, no such objection is taken then after the decision it will be deemed that there has been abandonment of technical plea of abatement. 17 From this it would appear that the principle of law as laid down by this Full Bench is subject to the three conditions as reproduced above. They find mentioned in Paragraph 16 of the judgment of the Full Bench. From the facts of the present case it would appear that Exception No. (iii) as reproduced above may be attracted. This exception provides that where there is an act of deliberate omission to include an heir while bringing the other heirs on record which may be said to be mala fide, the principle of law laid down by this Full Bench, namely, that when one or more heirs of the deceased or respondent are on record then his estate will be deemed to be fully represented in the appeal and same will not abate for not bringing on the record the other left out the heirs, will not apply. From the record it appears that on 18-4-1990 the respondent Nos. 16, 18, 19, 20, 22, 23 and 24 had filed a petition before this Court stating therein that out of 61 respondents to this appeal as many as seven respondents were dead. A list of those respondents was given in Paragraph 4 of this petition. This list included Respondent No. 17, Ayodhyaya Prasad Singh and Respondent No. 21 Rajesh Kumar Singh. In this petition, it was further stated that the heirs of those deceased respondents were not brought on record by the appellant and, accordingly, a prayer was made that the appeal may be held to have abated on this ground. This petition was placed for hearing on 11-9-1990 from the aforesaid fact it appears that the appellant was informed on 18-4-1990 about the death of these respondents and it was open to the appellant to take steps for substitution of their heirs inasmuch as in this petition a prayer was made that so far as these deceased respondents were concerned the appeal had abated. Since, however, this petition was not moved by the respondents (who has filed it) on the following day, namely, on 12-9-1990 the petitioner dated 18-4-1990 placed at Flag M was rejected by the Court. Since, however, this petition was not moved by the respondents (who has filed it) on the following day, namely, on 12-9-1990 the petitioner dated 18-4-1990 placed at Flag M was rejected by the Court. This will, however, make no difference so far knowledge to the appellant about the death of these respondents was concerned. From the order-sheet dated 17-9-1990 it appears that Shri Keshari Singh, the learned Counsel appearing on behalf of the respondents, had prayed that this order rejecting the petition dated 18-4-1990 place at Flag M, be recalled. The prayer was rejected. The order-sheet dated 10-4-1991 shows that again the respondents filed a petition under Sec. 151 and Order XXII, Rule 4 (3) of the Code informing the Court that Respondent Nos. 17, and 21 and other respondents had died and that their heirs have not been substituted in their places. On the said date, the learned Counsel for the appellant admitted that he had not taken any steps for substitution of the legal heirs of these deceased respondents and he desired that under the aforesaid facts and circumstances of the case the court may proceed to determine whether the whole appeal has abated or not. Under these circumstances, it was observed in this order dated 10-4-1991 that this appeal had abated so far as the deceased respondents were concerned. It may be noticed in this connection that even when the learned Counsel appearing for the appellant was informed about the death of these respondents, he refused to take any action for substitution of their legal heirs. On the other hand, he asked the Court to proceed to determine whether in absence of the legal heirs of the deceased respondent Nos. 17 and 21 whether the whole appeal has abated or not. Under this circumstance, it does not appear to be a case that my oversight the appellant did not apply for the substitution of the heirs of these deceased respondents. It further appears that on 7-5-1991 an affidavit was filed on behalf of the aforesaid respondents to the effect that the deceased respondent No. 17 has left behind his widow, Nagina Devi and three daughters mentioned in this affidavit. 18. It was, for the first time, by a petition dated 13-5-1991 that the appellant had prayed that Respondent No. 17 had died on 13-10-1989 leaving behind his widow, two sons and three daughters as his heirs. 18. It was, for the first time, by a petition dated 13-5-1991 that the appellant had prayed that Respondent No. 17 had died on 13-10-1989 leaving behind his widow, two sons and three daughters as his heirs. So far as two sons were concerned, they were already on record as Respondent Nos. 22 and 24 respectively. However, his widow and three daughters were not brought on the record. It need not be mentioned here that in a partition suit since they are also the heirs of the deceased respondent No. 17 they were necessary parties to the suit. In this petition, the appellant has further stated that Respondent No. 21, Rajesh Kumar Singh, had died on 21-1-1989 leaving behind his widow and a minor son, who have not brought on the record. Under these circumstances, a prayer has been made for expunging the names of the deceased respondents and for substituting his heirs in their places. From this it would appear that though the appellant was informed by some of the respondents as far back as on 18-4-1990 that Respondent Nos. 17 and 21 and others had died he failed to take any steps for substitution of their heirs in their places. On the other hand, as will appear from the order-sheet dated 10-4-1991 the learned Counsel for the appellant submitted that he has not taken any steps for substitution of legal heirs of these deceased respondents in respect of whom he admitted that the appeal to have abated and invited the Court to proceed to determine whether the whole appeal has abated or not. 19. Now the question that will arise for consideration would be, whether under these circumstances the case will come under the third exception or not. As will appear from the facts stated above that so far the deceased respondent No. 17 is concerned, his widow and three daughters were not substituted in his place though the two of his sons are on record. So far as deceased respondent No. 4 concerned, though his father is on record, his widow and a minor son have not brought on the record. This has happened even when some of the respondents have pointed out the aforesaid facts to the court and the appellant by filing a petition to this effect. So far as deceased respondent No. 4 concerned, though his father is on record, his widow and a minor son have not brought on the record. This has happened even when some of the respondents have pointed out the aforesaid facts to the court and the appellant by filing a petition to this effect. On the other hand, the learned Counsel for the appellant refused to substitute the legal heirs of the deceased respondents and asked the Court to determine whether the whole appeal has abated or not. Under the aforesaid circumstances the failure of the appellant to substitute all the legal heirs of the respondents will obviously amount to a deliberate omission on the part of the appellant to include the heirs of the deceased respondents by not making them parties to the appeal on the ground that some of their heirs were already on record. Under the facts and circumstances of this case there is no alternative but to hold that this deliberate omission on she part of the appellant cannot be said to be anything but mala fide as otherwise there does not appear to be any earthly reason for not substituting all the legal heirs of the deceased respondents in their places. Under the aforesaid circumstances the general principles as laid down in this Full Bench decision in the case of Jagannath Singh (supra) will not apply to the facts of the present case since the failure of the appellant to include those heirs as respondents is clearly deliberate and mala fide. 20. Another important thing go be noted in this connection is that what this Full Bench provides is that if one or more heirs of the deceased respondents are on the record then his estate would be deemed to be fully represented in the appeal even when his other heirs are left out. In the present case it is clear that the deceased respondent No. 21, Rajesh Kumar Singh had died on 21-1-1989 leaving behind his widow, Sunita Devi and his minor son, Soni Kumar, who were not brought on the record. On behalf of the learned Counsel for. the appellant it has been submitted that this will, however, not amount to abatement of the appeal so far as the deceased respondent No. 21, Rajesh Kumar Singh, is concerned inasmuch as his father, Rup Narain Singh is Respondent No. 16 to this appeal. On behalf of the learned Counsel for. the appellant it has been submitted that this will, however, not amount to abatement of the appeal so far as the deceased respondent No. 21, Rajesh Kumar Singh, is concerned inasmuch as his father, Rup Narain Singh is Respondent No. 16 to this appeal. In other words, it was the submission of the learned Counsel for the appellant that since the father of the deceased Respondent No. 21 is already on the record it will mean that the estate of Respondent No. 21 is represented by his father (Respondent No. 16) notwithstanding the fact that the son and the widow of Respondent No. 21 were not brought on the record. I do not find any force in this contention of the learned Counsel for the appellant. A perusal of the judgment of the aforesaid Full Bench in the case of Jagannath Singh (supra) will show that an appeal will not abate if one or more out of several heirs are on the record as they wilt represent the estate of the deceased. In the present case, as noticed above, the son of the deceased Respondent No. 21 as also his widow arc alive and under this circumstance it cannot be said that in their absence the estate of the deceased Respondent No. 2] shall be deemed to have been represented. In this connection, a reference may be made to the order of succession as given in the Hindu Succession Act, 1956 (in short the Act). This order of succession shows that the heirs who are in Class I of the Schedule and who will inherit simultaneously to the exclusion of all other heirs as per Sec. 9 of this Act. The father does not figure amongst Class I heirs which includes the son and the widow. From this it would appear that if a person dies in inter estate leaving behind a son and widow who are his Class I heirs the inheritance to his father will natural be excluded, in other words it will appear that when the son and the widow of a person are alive his father cannot be said to be his heir. From this it would appear that the legal heirs of the deceased Respondent No. 21 have not been brought on the record. 21. From this it would appear that the legal heirs of the deceased Respondent No. 21 have not been brought on the record. 21. In this connection my attention has been drawn to Article 49 of Hindu Law by S.V. Gupta which lays down that where the Hindu family consists of branches the heads of the branches alone are necessary parties. This, however, appears to be a bald statement which provides that when the family consists of branches the heads of those branches alone are necessary parties. Now if one of the coparcener becomes major and is having son/sons naturally he will be the head of another branch starting from him. He cannot be said to be brought under the branch of his father or the grand-father because even in case of the father, he may have a number of sons and if this principle is extended then his father will be deemed to be the head of the different families of his sons even when those sons are themselves heading (heir own families and constituting different branches. 22. On behalf of the appellant it has been submitted that the admission made on his behalf by his counsel on 10-4-1991 to the effect that the suit may be held to have abated so far as the deceased respondents including Respondent Nos. 17 and 21 are concerned will not act as res judicata under the facts and circumstances of this case. In other words, it has been submitted that even when this concession was made by the learned Counsel for the appellant it will not bind the appellant who would be free to reagitate this matter again and again as has been done in the present case. I do not find any force in this contention. As already pointed cut above time and again the fact that Respondent Nos. 17 and 21 and other respondents had died was brought to the notice of the appellant by some of the respondents. The appellant did not take any steps in time for substitution their legal heirs. This shows that the action of the appellant was deliberate and the appellant went to the extend of asking the Court to determine whether the whole appeal has abated or not by his failure to substitute the legal heirs of those deceased respondents. The appellant did not take any steps in time for substitution their legal heirs. This shows that the action of the appellant was deliberate and the appellant went to the extend of asking the Court to determine whether the whole appeal has abated or not by his failure to substitute the legal heirs of those deceased respondents. Under the aforesaid facts and circumstances it is clear that the principle of constructive res judicata will apply to the facts of the present case since the appellant cannot be allowed time and again to re-agitate the matter when on his behalf it had already been conceded that so far as the deceased respondents were concerned it may be held that the appeal has abated. In this connection, my attention has been drawn to Article 121 of the Limitation Act, 1963 according to which the period of sixty days has been provided as the period of limitation starting from the date of the abatement for setting aside the same. This will mean that under this Article the abatement can be set aside within the period of 150 days. Obviously, this period has been crossed by the appellant by not praying for substituting the legal heirs of deceased respondent Nos. 17 and 21 within this period. 23. The learned Counsel for the appellant has further contended that the order dated 10-4-1991 should not be treated to be the final orders since the same has been varied by the order dated 6-5-1991. The order-sheet dated 6-5-1991 shows that the appellant had submitted that so far as deceased respondent Nos. 22, 23, 25, 52, 53, 55, 57 and 59 were concerned since they were only proforma defendants, therefore their heir were not required to be substituted in their places. It was on this prayer made on behalf of the appellant that their names were expunged from the memo of appeal which was held to have abated so far as they were concerned. In the same way since the heirs of deceased Respondent Nos. 17 and 21 were not brought on the record and since the order dated 10-4-1991 shows that so far as these respondents were concerned the appeal had abated their names were expunged by the order dated 6-5-1991. This will, however, not mean that the order dated 10-4-1991 was varied by the order dated 6-5-1991. Hence there is no merit in this submission also. This will, however, not mean that the order dated 10-4-1991 was varied by the order dated 6-5-1991. Hence there is no merit in this submission also. 24. The learned Counsel for the appellant has placed reliance on the case of Him Lal V/s. Gajjan and Ors. 1990 3 SCC 285 . In this decision it has been held that non-filing of the application for substitution of the heirs of the deceased defendants who were only proforma parties will not result in the abatement of the appeal. As such it is well-settled that so far as proforma defendants were concerned the failure on the part of the appellant to substitute the legal heirs of these deceased respondents would not result in the abatement of the appeal. 25. In this connection, my attention has also been drawn to the principle of Hindu Lal as contained in Article 333(2)(ii) of the Mullas Hindu Law, Sixteenth Edition. It relates to the parties to suit for partition, It clearly provides that the plaintiff in a partition suit should implead as defendants, females also who are entitled to a share on partition. Those females have been described as necessary parties to the partition suit and if any of them is not joined the suit was liable to be dismissed. In the present case, as has been noticed above, it appears that the female heirs of the deceased Respondent Nos. 17 and 21, who are entitled to share in the partition, have not been impleaded. From this Article it would appear that they were necessary parties to the partition suit and in their absence the suit was liable to be dismissed. Hence, I do not find any force in submission of the learned Counsel for the appellant that since some of the heirs of deceased-respondent Nos. 17 were already on the record his estate should be deemed to have been represented. 26. The learned Counsel for the appellant has placed reliance on the case of Musammat Hifsa Khatoon and Ors. V/s. Mohammad Salimar Rahman and Ors. 17 were already on the record his estate should be deemed to have been represented. 26. The learned Counsel for the appellant has placed reliance on the case of Musammat Hifsa Khatoon and Ors. V/s. Mohammad Salimar Rahman and Ors. -- in which it has been held that where all the heirs or legal representatives of the deceased were already on the record in any capacity it was not necessary to make an application for their substitution in place of the deceased and such a case is governed by Rule 2 of Order XXII and not by Rules 3 and 4 of that Order. In the present case, as has been noticed above the facts are entirely different. All the heirs of deceased-respondent Nos. 17 and 21 are not on the record. Hence this decision is of no help to the learned Counsel for the appellant. 27. The learned Counsel for the respondents has submitted that the petition for substitution dated 13-5-1991 placed at Flag (P) is not a bona fide petition inasmuch as a large number of prayers have been included in the same petition. From the prayer portion it would appear that the appellant through this petition, wanted the names of the deceased respondents expunged, the condonation of delay, the setting aside of the abatement and the substitution of the heirs and legal representatives of the deceased respondent Nos. 17 and 20 and 21 in their places. The learned Counsel for the respondents has submitted that all these prayers should not be joined in one petition for which the appellant should have filed separate petitions. I find force in this contention of the learned Counsel. 28. From this discussions it would appear that this appeal has abated so far as deceased-respondent Nos. 17 and 21 were concerned. The next question that may arise for consideration in this connection would be whether the whole appeal has abated or not. In this connection, a reference may be made to the case of Janak Sahu (supra) which is a decision of this Court and according to which the criterion to determine this question has been laid down, namely, whether in the event of the appeal being allowed as against the remaining respondents there would or would not be contradictory decrees in the same litigation with respect to the same subject-matter. It was further held that it was not permissible to allow the existence of conflicting decrees and the appeal must be dismissed as whole if the success of the appeal would bring into existence such confliction decrees. 29. Under the aforesaid circumstances, I have got no alternative but to hold that in absence of the legal heirs of deceased-respondent Nos. 17 and 21 this appeal cannot proceed and that it has to be dismissed as having abated as a whole. The various petitions filed in this connection are disposed of accordingly. It is held that the whole appeal has abated. It is, accordingly, dismissed.