JUDGMENT
Madan, J.
1. This is an appeal against an order of the District Judge of Manbhum, declaring that an appeal preferred by the plaintiff has abated. The suit was filed by the appellant at Dhanbad under the provisions of Order XXI, Rule 63, Civil Procedure Code, against three brothers residing in Bombay, in which locality the appellant also resides. Before the trial began, the Court was informed that the eldest of the three brothers Keshavji had died in the year 1924 and he was, therefore, struck out from the suit. The trial Court dismissed the suit on its merits as against the two surviving brothers, and an appeal was preferred to the District Judge.
2. On February 12, 1936, the appellant informed the Court that Nanji, the younger of the two surviving brothers, had died on November 16, 1935, and applied for the substitution of his widow, whose name was unknown to him, as his heir. On that day the Court ordered that the widow should be substituted. On March 27, 1936, the surviving brother, Ratansi, filed a petition to the effect that he was joint with Nanji that the widow was not the heir, and that the real heirs were six surviving members of the joint family namely himself his two minor sons the two minor sons of the deceased and an adult nephew of the deceased. He claimed therefore that the appeal had abated for want of substitution, the period of ninety days having expired. On April 8, 1936 the appellant filed an application for setting aside the abatement after substituting the persons named in the petition filed by Ratansi. The District Judge rejected this application on the ground that the appellant had shown no sufficient cause for failing to substitute the legal heir within the statutory period. He held that in the circumstances the appeal had abated as a whole and not merely against the heirs of the deceased respondent.
3. Mr. A. K. Ray for the appellant did not dispute that the appeal had abated through failure to substitute the legal heirs within the period of ninety days but he contended that this was a proper case for setting the abatement aside. It is true that it does not appear that the appellant had any motive for applying to substitute a wrong person but it has not been explained either before the District Judge or in this Court what reason he had for doing so.
4. Ratansi, in the affidavit filed by him. asserted that the appellant was in the employment of his family in Bombay and was fully aware of the true facts; the appellant in a counter-affidavit admitted that he lives close to Bombay and had business dealings with the respondents’ family; he nowhere stated that he was not aware of the death of the respondent on or about the date when it took place, namely November 16, 1935. The ninety days’ period expired on February 14 and it was not till the February 11, that the appellant served a notice on the respondents’ Pleader at Dhanbad of his petition for substitution which he filed on the following day. The appellant has nowhere explained what inquiries he made prior to that date or how he was led to believe that the widow was the real heir, and Mr. Ray admitted that he was unable to furnish any information on this point. Rather, from the fact that the appellant had not even troubled to find out the name of the widow when he applied for substitution, and that in his petition for setting aside the abatement he admitted that he did not know who were the heirs, it is clear that he had made no inquiries at all.
5. In Shib Dutta Singh v. Sheikh Karim Baksh 4 Pat. 320 : 89 Ind. Cas. 280 : AIR 1925 Pat. 551 : 7 PLT 186 the appellant had applied bona fide and within time for the substitution of two heirs of the deceased respondent in ignorance of the fact that there were other Leirs. Having heard of the existence of those heirs, he filed a further application for their substitution and it was held that the appeal had not abated. The circumstances of the present case are different, and the appellant can derive no benefit from his application to substitute a wrong person, when he has not shown, that he had made any inquiries as to who the real heirs were. In the circumstances the learned District Judge rightly held that the appeal had abated, and that no cause had been shown for setting the abatement aside.
6. Mr. Ray further contended that in the circumstances of this case it was not necessary to substitute the heirs of the deceased because they were already on the record. It has been held by this Court in Sankru Mahto v. Bhoju Mahato 15 Pat. 326 : 165 Ind. Cas. 612 : AIR 1936 Pat. 548 : 17 PLT 584 : 3 BR 64 : 9 RP 198 and in other cases that when one member of a joint family dies and all the other members are already on the record, no substitution is required. In this case only one member of the family remained on the record and one adult member and four minor members were not on the record. It is suggested that it was not necessary to bring these persons on the record as they were sufficiently represented by the surviving respondent as karta of the joint family. This contention was not put forward in the lower Court which had no opportunity of investigating it.
7. It is true that it has been held that there are cases when a karta may so effectively represent a joint family for the purpose of a particular litigation as to bind all the members of the family by the decree. It is suggested that as in this case the decree was obtained in the year 1922 by the three brothers alone and execution was taken out in 1933 by the two surviving brothers, the appellant was therefore entitled to treat those brothers as representing the family. The plaint, however, does not show that the two brothers were impleaded as representing the joint family; the suit was brought for a declaration that the appellant was not bound by a purchase in execution which had been made by the two brothers. In the circumstances I am not able to assume that those persons represented the entire family, including another adult male coparcener, for the purpose of this litigation and that no substitution was required. These contentions must also fail and the order of abatement must be upheld. The District Judge was right in holding that in the circumstances the entire appeal had abated, as otherwise, if the appeal succeeds, there will be contrary decisions of the lower and Appellate Courts in respect of the same property.
8. For these reasons, I am unable to interfere and would dismiss this appeal with costs.
Courtney Terrell, C.J.
9. I agree.
