JUDGMENT
Madan Mohan Prasad, J.
1. This second appeal by the plaintiffs can be disposed of on a short point of law and it is, therefore unnecessary to state the cases of the parties.
2. It appears that the plaintiffs’ suit had been decreed by the trial Court and there was an appeal preferred by the defendant which was pending before the Fourth Additional Subordinate Judge, Chapra. During the pendency of this appeal, one Deni Sahani (Respondent No. 1 to the appeal) died on the 4th of September 1967. On the 27th September 1967, the appellant made an application for substitution of the heir of Deni Sahani, namely, Randeo Sahani, his son. By an order dated the 14th of November, 1967. Randeo Sahani was substituted in place of the deceased respondent. It appears that the hearing of arguments in the appeal started on the 1st of April 1970. On the 3rd of April, 1970, when the appeal before the lower appellate Court had still been heard only in part, an application was filed on behalf of the respondents that the aforesaid Deni Sahani had died leaving behind him not only a son, but three daughters as well who had not been impleaded in the appeal. It was further said that ‘they had come to know only on the previous day that the appellant had filed a petition and got only the son substituted in place of the deceased respondent. It was further stated that the appeal had abated on that account. The Additional Subordinate Judge .directed the application to be put up on the next day for hearing. On that date, some sort of a rejoinder was filed bv the appellant. The application and the rejoinder both were directed to be placed for hearing on the 6th April, 1970. The parties were heard on that date and 7th of April, 1970, was fixed for orders. On that date, the learned Additional Subordinate Judge ordered as follows:
“The petition filed by respondents that the appeal has abated due to the death of Jamuni respondent No. 1 and non-substitution of the heirs is heard along with the appeal.”
Jamuni obviously is a mistake for Dent because by the same order the learned Additional Subordinate Judge had already held that the appellant’s lawyer did not press the point that the decree of the trial Court would be a nullity on account of the death of Jamuni. Obviously, therefore, he was referring to the petition in respect of the death of respondent No. 1, namely. Deni Sahani. It appears that the appeal was again heard on other dates and judgment was delivered on the 20th of April, 1970. The present second appeal is directed against that judgment and decree.
3. Learned Counsel for the appellants raised bv wav of a preliminary point that the lower appellate court should have ordered the appellant before it to implead the three daughters of deceased respondent Deni Sahani, who were his legal heirs, after his attention had been drawn to the omission. He contends that in such circumstances, the judgment of the Lower Appellate Court, which is one of reversal, ought to be set aside, because the other heirs of the deceased respondent Deni Sahani had a right to be heard by the Court below and ‘the appellant wag under an obligation to implead them. He has fairly conceded that he cannot go to the extent of contending that the appeal itself had abated in view of the decision of the Supreme Court in several cases, the last one behig in the case of Dolai Maliko v. Krushna Chandra Patnaik. AIR 1967 SC 49. In the circumstances of the present case, the contention of the learned Counsel must prevail. Learned Counsel has rightly not contended that the appeal had abated on account of not bringing the other heirs of Deni Sahani on the record, for, it is well-established that where an appellant bona fide believes a particular person to be a legal representative of a deceased party and brings him on the record, even though he omits to substitute other persons who might be heirs, unless there is anv fraud qr collusion and unless the non-impleading, heirs have a special case, different from others, to be considered, the substituted respondent will be deemed to have represented the entire estate of the deceased. Reference may be made to the cases of Daya Ram v. Shyam Sundari, AIR 1965 SC 1049, N.K. Mohd. Sulaiman Sahib v. N.C. Mohd. Ismail Saheb, AIR 1966 SC 792 and the case of Dolai Maliko. AIR 1967 SC 49 (supra).
4. There is, however, another point which arises and which has been urged. The question is whether even though the appeal had not abated, the appellant before the Court of appeal below was bound to implead the heirs of respondent No. 1 who had not been impleaded and ‘the Court below was under an obligation to adjourn the hearing of the appeal for that purpose. It will be relevant to state that in the cases mentioned above, the attention of the party concerned or the Court had not been drawn to the omission to implead the heirs while the case was pending in the Court where the steps for substitution could be made, except in the case of Daya Ram. AIR 1965 SC 1049 (supra), where the respondent had died during the pendency of the appeal in the Supreme Court and the appellants had taken steps to implead her legal representatives, but some other heirs had not been impleaded. A point was raised there that the appeal had abated. Their Lordships repelled the argument, but considered the question of the effect of the appellant having omitted to include the other heirs who admittedly had interest in the property, and also the effect of the matter being brought to the notice of the Court before the hearing of the appeal, and it will be appropriate to quote their own words:
“The decisions to which we have referred as well as certain others have laid down, and we consider this is also correct, that though the appeal has not abated when once it is 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 record, and the appellant is thus made aware of this default oh his part, it would be his duty to bring these others on record, so that the appeal could be properly constituted. In other words, if the appellant should succeed in the appeal it would be necessary for him to bring on record these other representatives whom he has omitted to implead originally. The result of this would be that the appeal would have to be adjourned for the purpose of making the record complete by impleading these two legal representatives whom the appellant had omitted to bring on record in the first instance.”
Their Lordships further said that this is the course which they would have followed, but did not do so on account of certain special circumstances of that case. In view of the aforesaid observations, there can be little doubt that the law as laid down by the Supreme Court is that if the matter is pointed out to the Court and the appellant, the latter, if he wants to succeed, is bound to bring on record the heirs not impleaded before.
5. In the case of Mohammad Sulaiman, AIR 1966 SC 792 (supra), the party had died before the suit and only some of the heirs had been impleaded in the suit. The question as to whether the impleaded heirs represented the estate had arisen at a later stage. In the case of Dolai Maliko, AIR 1967 SC 49 (supra), the respondent had died during the pendency of the appeal in the lower appellate court and the discovery of the omission or non-substitution of his heirs was noticed when the appeal was pending in the High Court. The question of giving an opportunity to the party to the appeal to remove the defect while there was still opportunity to do so had not arisen in these cases. Their Lordships were thus concerned with the effect of the omission which had become complete except in the case of Dava Ram. AIR 1965 SC 1049 (supra). Different considerations have, therefore, to apply in cases where the other party points out the omission and there is still opportunity for bringing the heirs on record. In such a case the Court is bound to adjourn the hearing of the case and give an opportunity to the appellant to implead the heirs who have been omitted to be substituted at the earlier sage. I may further point out in this connection that in the case of Dolai Maliko, their Lordships of the Supreme Court while holding that the heirs who had been impleaded represented the estate of the other heirs who had not been impleaded, took care to lay down as follows:
“This is not to sav 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 deceased is not represented unless circumstances like fraud or collusion to which we have referred above exist.”
The observations of their Lordships apply to the circumstances of the present case. It is quite obvious that a party cannot be allowed to refuse to implead the heirs who have not been imrjleaded. If he does so. he takes the risk of failing because the appeal may not be properly constituted. Therefore, the general rule is that the party must bring on record all the legal representatives in view of Order 22, Rules 3 and 4 of the Code of Civil Procedure. The law laid down in the cases aforesaid is an exception to the general rule and is applicable to the cases where the appellant has proceeded in good faith, substituted the heirs known to him, but by oversight omitted to implead the other heirs. In the present case, therefore, when the matter was pointed out to the Court and when the appellant himself was appraised of the fact that there wore three daughters who had not been impleaded. he was under an obligation to implead them and the Court of appeal was duty bound to adiourn the hearing of the appeal.
6. It may also be mentioned in this connection that since the fact of omission of the three daughters of deceased respondent Deni Sahani had been pointed out on the 3rd of April. 1970 and the hearing of the argument in the appeal was not complete until the 8th of April, 1970, the learned Subordinate Judge ought to have postponed the hearing of the appeal and asked the appellant to implead the heirs who had not been so impleaded. It appears next that although the learned Subordinate Judge heard the question of abatement and the effect of the omission to implead the three heirs, he has not discussed these questions and has not given any finding thereon. In fact, the proper course for him was to decide the question immediately after he had heard arguments on the point and the party could have proceeded on the footing of his order on the preliminary objection. Having reserved the judgment on this point and lhaving given no decision, thereon, the learned Subordinate Judge acted wrongly in law.
7. In the present case, the circumstances which were present before their Lordships of the Supreme Court in the case of Daya Ram AIR 1965 SC 1049 (supra) are absent. It is true that the son of Deni Sahani was before the Lower Appellate Court The fact that Deni Sahani had left daughters has not been disputed. The present iudgment is one of reversal. The daughters who were not so impleaded, are naturally adversely affected. They were kept out of Court in spite of their existence having been brought to the notice of the appellant in the Court below. Considering the circumstances in this perspective, I am inclined to take the view that the Lower Appellate Court acted wrongly in not providing an opportunity to the legal heirs not impleaded before it to present their case.
8. In the result, I would set aside the judgment and decree passed by the Lower Appellate Court and direct that it would give an opportunity to the appellant before it to implead the legal heirs, namely, the daughters of Deni Sahani, who have appeared in this Court, as respondents and re-hear the appeal and dispose it of in accordance with law.
9. The appeal is, accordingly, allowed. In the circumstances of this case, however, there will be no order as to costs.