WANCHOO, C.J.



1. The question in this case is whether the appeal has abated.



2. We might narrate the facts briefly to understand the point involved. The appeal was pending in this Court, and Motilal was one of the respondents. He died on the 26th of September, 1953, and an application was made on the 32th October, 1953, for bringing his legal representatives on record. In this application, the names of Mohanlal and Purshottam Das, his minor sons, alone were mentioned, and it was prayed that they be brought on record under the guardianship of their mother. While processes were being issued in this connection, an application was made on the 7th of March, 1954, by the appellant praying that some lawyer be appointed guardian of the minors as the mother was apparently not agreeable to act as guardian. In this application, a third son, namely Batanlal, was also mentioned, though in the application of the 12th October, 1953, only the names of two of Motilals sons, namely Mohanlal and Purshottam Das, were mentioned. This fact was noticed, and the counsel was asked to explain how the name of another son was being mentioned in this application. Thereupon, the counsel explained that Motilal had left one more son Katanlal who was younger than Purshottam Das and Mohanlal, and that he should also be made a legal representative of Motilal. It was then pointed out by the office that as Motilal had died on or before the 26th of September, 1953, the prayer for bringing Ratanlal as legal representative was barred by time. Thereupon, the case was put up before learned counsel for the parties, and it was contended on behalf of Dau-das respondent that the whole appeal abated.



3. An application has, however, been made on behalf of the appellant for setting aside the abatement and giving him the benefit of Section 5 of the Limitation Act. An affidavit has been filed in support of the application, and it has been said that he came to know of the death of Motilal by a letter which he received, and in that letter the names of only two sons were mentioned. He made enquiries, and came to know that there were only two sons of Motilal. Later, however, in February 1954, he came to know from a relation that Motilal had left a third son named Ratanlal. The appellant did not know about it because Motilal and his sons lived in a village in Berar, while the appellant lived in Aligarh.



4. The appellant contends that the appeal has not abated, and in the alternative pressed that the benefit of Section 5 may be given to him. It is first urged that Motilal is a pro forma defendant, and therefore there is no question of the appeal abating simply because the legal representative of a pro forma respondent had not been brought on the record.



5. It appears that the plaintiff and Motilal deceased respondent are descendants of a common ancestor. The plaintiffs case was that there had been a partition in the family, and the property in dispute came to the share of the plaintiffs branch, and therefore Motilal had no authority to sell this property to Gulabdas respondents father and grand-father. It appears that there was a decree outstanding against Gulabdas, and in that decree the property was put to sale and purchased by Daudas respondent and another. In these circumstances, it is true that, Motilal was not very interested in this litigation, and that is why he did not appear to contest it; but that does not mean that he was not a necessary party to the suit. The foundation of Gulabdass ownership to the property was the sale deed by Motilal and his sister-in-law in favour of Gulabdass father and grand-father. It is that foundation which is being attacked by the plaintiff, and, in the circumstances, we are of opinion that Motilal was a necessary party to the suit, The array of parties would not have been complete without him, and it is really his right to the property which is under dispute. Motilal, therefore, cannot be called a pro forma defendant. He appears to us to be a necessary party, and therefore his representatives also are necessary parties to the suit and must be brought on the record.



6. The next point, that has been urged, is that two sons, namely Mohanlal and Purshottam-das, of Motilal were brought on the record within time, and the mere fact that the name of the minor was then left out by oversight would not result in the abatement of the appeal as the estate of Motilal was sufficiently represented by the two sons who were brought on the record in time. Learned counsel for the appellant has relied on a number of cases in this connection, and we shall briefly review them.



7. In -- jehrabi Sadullakhan v. Bismillabi Sadruddin, AIR 1924 Bom 420 (A), it was held that it is sufficient for the plaintiff in a suit, if a defendant dies, to put one of the heirs on the record as his legal representative who will then represent the estate of the deceased for the purpose of the suit. The only distinction which can be drawn between that case and the case before us is that in that case the point was raised in a subsequent litigation and not in the same litigation as before us.

8. The next Bombay case is -- (Firm) Mul-chand Hemraj v. Jairamdas Chaturbhuj, AIR 1935 Bom 287 (B). It has been held in that case that it is sufficient compliance with Order 22, Rule 4, C. P. C. if one legal representative alone is brought on the record, and it is not necessary always that all of them should be impleaded. In that case, the question was raised in the same suit. There is, however, one distinction, namely that there was no prayer for bringing the other heirs on the record after the period of limitation, and that was a case for money and not for property, where it is not so important that all the legal representatives should be brought on the record.



9. In -- begam Jan v. Jannat Bibi, AIR 1927 Lah 6 (C), the Lahore High Court has held that the words legal representative in Order 22, Rule 4 do not mean all legal representatives, and there is sufficient compliance with the law if the applicant makes a bona fide application to bring on the record all the legal representatives known to him so far as he could ascertain them after the exercise of due care and industry. In this case, the legal representatives, who had been omitted, were brought on the record after the period of limitation, and the suit was held not to have abated.



10. In -- abdulla Sahib v. Vageer Beevi Ammal, AIR 1928 Mad 1199 (D), it was held that where only some of the legal representatives of a deceased person are brought on the record and within time, there is no abatement even though other legal representatives are omitted. In that case, the legal representative, who had been left out, was brought by the trial Court on the record after the period of limitation, and the order of the trial Court bringing him on the record after the period of limitation was upheld in appeal.

1

1. In -- muthuraman Chettiar v. Adaikappa Chetty, AIR 1636 Mad 336 (E), it has been held that when a party takes proper steps to substitute on the record the representatives of an adversary who had died pendente lite, he is not to be penalised because he has not brought on record the whole of the representatives. He can only act to the best of his Knowledge. In that case, on the death of a defendant all his legal representatives were brought on the record. Later one of these died and his legal representatives were not brought on the record, and this was not known to the plaintiff who continued the suit bona fide, and the other legal representatives contested the suit. It was held that the estate was sufficiently represented.

1

2. In mahomed Hammad v. Tej Narain Lal, AIR 1942 All 324 (P), it was held that where on the death of a respondent during the pendency of the appeal one of his heirs is brought on the record by the Court to represent the deceased in the appeal, the heir represents all those who claim the property in issue as the heirs of the deceased and a decree passed in the appeal is binding upon them as much as it is upon him. In that case, the point was raised in the sub-sequent suit which was brought by the legal representatives who had not been brought on the record in the earlier appeal but their suit was dismissed.

1

3. In -- lala Radha Raman v. Anant Singh, AIR, 1945 Oudh 196 (G), it was held that where an application for bringing the legal representatives of the deceased respondent was made within time, the mere fact that the list of legal representatives mentioned in that application was not exhaustive would not operate to abate the appeal. In this case, the objection was taken in the appeal, and it was held that the appeal did not abate, and the respondent, who had been left out, was brought on the record after the period of limitation.

1

4. In -- abdul Baki v. Bansilal Abirchand Firm, AIR 1945 Nag 53 (H), it was held that if there are several legal representatives, it is enough if some legal representatives are joined within the period of limitation. It was also held in this case that a subsequent application for bringing other persons on record as legal representatives is not covered by the 90 days rule, but is governed by Article 181 of the Limitation Act.

1

5. In -- rani Brijraj Kumari v. Manranjan Prasad Singh, AIR 1947 Pat 365 (I), it was held that where one or more heirs out of many is impleaded as being solely in possession of the properties of the deceased and this is done bona fide without any elements of fraud or collusion, the estate can be held to have been sufficiently represented even though all the co-heirs are not brought on the record.

1

6. A review of these authorities shows that the consensus of opinion of the High Courts in India is that where some of the legal representatives have been brought on the record within time, the estate can be said to be sufficiently represented by these legal representatives, and there cannot be abatement provided, there is no collusion or fraud in leaving out the other legal representatives. It has also been held by some High Courts that in such a case there is no objection to bringing the left out legal representatives on the record even after the ninety days period of limitation as that only completes the array of parties and would not affect the appeal materially. The reason for this seems to be that where there is no fraud or collusion the legal representatives brought on the record sufficiently represent the estate, and even if some are left out by oversight, it cannot be said that the estate was not sufficiently represented. In this view of the matter the question of limitation loses its force, and if later it is brought to the knowledge of the Court in the same suit or proceeding that some legal representative has been left out, the Court would be justified in bringing him on the record also. In the present case, the legal representative left out was the youngest of the three minors. There is no question of fraud or collusion in this case. The two legal representatives, who were brought on the record within time, sufficiently represented the estate. It was, therefore, really not necessary for the appellant to ask for bringing the third legal representative on the record. But as he came to know, of the existence of the third legal representative after the period of limitation had expired, he very rightly brought it to the notice of the Court, and wanted him also to be brought on the record. Under these circumstances, where there is no fraud or collusion, the Court should exercise its discretion by allowing the party to bring the left out heirs on the record even after the period of limitation of ninety days has expired, and use Section 5 for that purpose. We do not mean by this that the parties are at liberty only to mention some legal representatives even if they know all. What we mean is that if a party has exercised due diligence to find out the names of all the legal representatives, and believes that those whom he mentions are the only legal representatives, though later it turns out that that is not correct such party may be allowed to take advantage of Section 5 of the Limitation Act. In this case the appellant has sworn that he believed that there were only two sons of Motilal and that was because in the letter conveying the news of his death only two sons were mentioned. It does not appear that the appellant made very searching enquiries; but he may very well have been satisfied that there were only two sons of Motilal when that letter mentioned only two names. The third son appears to be a small child, and the appellant may not have known of him. In these circumstances we are of opinion that the estate was sufficiently represented by the two minors who were mentioned in the original application of the 12th of October, 1953, and there is therefore good ground for allowing the appellant to bring the third minor on the record under Section 5 of the Limitation Act, as in any case the appeal cannot be said to abate.

1

7. Two other points are urged on behalf of the appellant, namely that Article 181 applies to such a case, and that he had used due care and Industry and therefore he should be given the benefit of Section 5 of the Limitation Act. In view of what we have said above, these points do not call for any decision. We, therefore, hold that the appeal did not abate, and that the estate was sufficiently represented by bringing two of the sons of Motilal deceased on the record within time. Now that it has been found after the period of limitation that there is a third son, we order that this third son Ratanlal be also brought on the record, and for that purpose the benefit of Section 5 be given to the appellant. .