1. In this appeal the sole question which arises for determination is whether the appeal has abated, because of non-substitution of Mt. Gangia, the admitted sister of Shyam Lal, husband of defendant No. 1, on the death of the sole appellant, defendant No. 1, on the 23rd January, 1958. In order to appreciate the points raised, it is necessary to state a few facts:

2. There was one Sheo Prasad, who had four sons — Raja Ram, father of the plaintiff; Pokhari Ram (defendant No. 2), father of defendants 4 and 5; Shyam Lal, husband of Mt. Murti, (defendant. No. 1), the sole appellant; and Sheonandan (defendant No. 3), who died issueless. Shyamlal, husband of defendant No. 1, Mt. Murti, had a concubine named Jagtarni Kuer, who died, after executing a deed of gift in favour of the plaintiff in respect of the properties mentioned in Schedules 1 and 2. The plaintiff's case was that both the properties belonged to Jagtarni Kuer, and, therefore, she had the right to execute the deed of gift in respect of those properties in favour of the plaintiff.

3. Schedule 1 lands stand recorded in the name of Shyam Lal, whereas Schedule 2 lands stand in the name of Jagtarni.

4. The plaintiff's suit was contested by defendant No. 1 who denied the plaintiff's allegation that Shyam Lal was the farzidar of Jagtarni in respect of schedule 1 land. Her case was that Schedule 1 land belonged to Shyamlal himself. Regarding schedule 2 land, the case of defendant No. 1 was that Jagtarni Kuer had sold it orally to Shyam Lal long ago, and, therefore, Jagtarni had no interest left in this property also which she could convey to the plaintiff by the deed of gift.

5. The court below decreed the plaintiff's suit in respect of Schedule 2 land, holding that it belonged to Jagtarni Kuer, and she had not sold it to Shyamlal, as contended by the defendant No. 1, and, therefore Jagtarni had the right to make a gift of it to the plaintiff. The court below, however, dismissed the suit in respect of Schedule I land, holding that it belonged to Shyamlal, and he was not a mere farzidar of Jagtarni, as alleged, and, therefore, she had no right to make a gift of it in favour of the plaintiff.

6. Against the aforesaid judgment and decree, only defendant No. 1 preferred an appeal to this court regarding schedule 2 land, and there was also a cross-objection on behalf of the plaintiff in respect of schedule 1 land.

7. During the pendency of the appeal, defendant No. 1, who was sole appellant in this court, died on the 23rd January, 1958. On the 22nd February, 1958, within the statutory period, a petition was filed by defendants 2, 4 and 5 for their transposition under order 1 rule 10 of the CPC. In paragraph 8 of that petition, it was stated by them that they were the only heirs of the appellant, Mt. Murti, defendant No. 1, and as they were already on the record, they may be transposed to the category of the appellants from that of the respondents.

8. The fact that Shyamlal had also a sister, Mt. Gangia, as admitted now, was not at all mentioned in this petition, rather it was definitely suppressed. It is not denied that after the death of Mt. Murti, defendant No. 1, the sole appellant, her legal representatives would be the heirs of her husband, Shyamlal, and such heirs on the death of Mt. Murti, defendant No. 1, were only defendant No. 2 and his sister Mt. Gangia. It was further mentioned in the petition, just referred to, that Mt. Murti, defendant No. 1, appellant had orally surrendered all her interest in the property of her husband in favour of defendant 2 respondent No. 2, and his sons defendants 4 and 5 in 1958 on account of her old age and apprehending death any moment.

9. The respondents, therefore, claimed to be substituted in place of the sole appellant, on the ground, first, that they were her sole heirs, and, secondly, that they were the only persons who had interest in the properties in suit because of oral surrender from the appellant. Admittedly, therefore, no application was made for substitution of Mt. Gangia, the admitted sister of Shyamlal until the 10th September, 1958, when defendants 2, 4 and 5 respondents made another application praying that Mt. Gangia, sister of Shyamlal, husband of defendant No. 1, may be substituted along with defendant No. 2.

10. They further prayed in the alternative that if she cannot be substituted, she may be added as a party respondent to the appeal. In paragraph 2 of his affidavit, it was admitted by Pokhan Gope, the deponent, defendant No. 2, that Mt. Gangia was the sister of Shyamlal but he said that she had no interest in the property in dispute as defendant No. 2 got Murti's entire property by surrender from her.

11. These two petitions have now come up for consideration before me as ordered, at the instance of the parties, by this court on the 17th July, 1958, and the 10th September, 1958.

12. Mr. Lalnarayan Sinha, who appeared for the plaintiff-respondent, took a preliminary objection to the maintainability of the appeal. He contended that as admittedly now Gangia was the sister of Sbamlal and as such his heir, entitled to be substituted on the death of Shamlal's widow, defendant No. 1, the appellant, and as admittedly no petition under Order 22 Rule 3 of the Code for substituting Mt. Gangia had been made within 90 days of the death of defendant No. 1, the appeal has abated on account of the death of defendant No. 1 as she was the sole appellant.

13. He further contended that as the petition filed by the respondents on the 10th September, 1958, for substitution of Mt. Gangia was beyond 90 days and no prayer therein had been made for setting aside the abatement, even then the appeal has abated. He also contended that in these circumstances Gangia could not be added as a party to the appeal even as a respondent.

14. Mr. D.N Varma, who appeared for the respondents (defendants 2, 4 and 5), in reply submitted that the petition filed by them on 22-2-1958 was in substance a petition for substitution of some of the heirs of Mt. Murti defendant No. 1, and therefore, there was no abatement. In that petition, so ran the argument of Mr. Varma, they said that they were the heirs, and, as such, they should be transposed to the category of the appellants, and this prayer, therefore, he contended, amounting to a prayer for their substitution. He, therefore, submitted that, in this view of the matter, as some of the heirs have already been substituted, the fact that Mt. Gangia, another heir, has not been substituted will not have the effect of making the appeal abate, as held by a Bench of this court in Balgajan v. Sukhu*, AIR 1948 Pat 288 : ILR 26 Pat 249. He further submitted, relying on this authority, that a petition for substitution of Mt. Gangia could be made only by her, and, therefore, as long as she was not added as a party to the appeal, she could not make such a petition; and, the respondents could not have asked the court to make her an appellant as she might not have been willing to be added as such.

15. I have carefully considered the arguments of the learned counsel for the parties, and, in my opinion, the preliminary objection of the learned Government Advocate is well founded and must be given effect to.

16. Even on the Patna decision, above-mentioned, relied upon by Mr. Varma, it is clear that the appeal has abated. In that case the principle which was laid down by Shearer, J. with whom Reuben, J. agreed, was to the following effect:—

“It is well settled that, when a party to a suit dies, leaving a number of persons as his legal representatives it is desirable that all such persons should be substituted in his place. It is, however, equally-well settled that, if through some oversight or other, some of such persons are brought on the record and others are not, the estate is fully represented by those who are; those who are not may subsequently apply to be brought on the record, but there is no abatement, Shib Dutta Singh v. Sheikh Karim Bakhsh*, ILR 4 Pat 320 : (AIR 1925 Pat 551).”

17. On the above decision, it is plain that it is only when through some oversight or other, some of the legal representatives are brought on the record and others are not, the estate of the deceased is deemed to be fully represented by those who are brought on the record, and then those who are brought on the record may subsequently apply to be brought on the record, and, in such a case, there would be no abatement. Relying on this observation, Mr. Varma contended that if Gangia has not been brought on the record, she herself may now apply to be brought on the record, but her non-substitution will not make the appeal abate, when admittedly defendant No. 2 is also an heir and he is already on the record.

18. In the present case, on the petition of defendants 2, 4 and 5 (respondents) filed on the 22nd February, 1958 it cannot be said that it was a bona fide petition as contended by Mr. Varma; on the other hand, ex facie the petition was a mala fide one. The stand taken by these respondents was that they were the only heirs of Shamlal, and they did not at all mention about Gangia. Rather they did not admit the existence of Mt. Gangia, a sister of Shamlal, until an enquiry was ordered by this court into this fact on the 2nd September, 1958, by the Registrar of this court, and, then before him, as noted in order No. 42, dated the 10th September, 1958, the respondents also agreed that Mt. Gangia was sister of Shamlal which fact was thereafter admitted further by them in their affidavit filed on the 10th September, 1958.

19. For these reasons, it is impossible to hold that here also, as in the Patna case, referred to before, only through some oversight or other Mt. Gangia was left out and she was not mentioned as a legal representative, in the respondents' application, dated the 22nd February, 1958, and, therefore, the principles of the just-mentioned Patna case should apply to the instant case. On the other hand, on the definite assertion of theirs in their petition filed on the 22nd February, 1958, that they were the only heirs, it is abundantly clear that they deliberately suppressed the fact that Shamlal had a sister in existence named Mt. Gangia.

20. For these reasons, I hold that the conduct of these respondents was mala fide, and they intentionally suppressed the existence of Mt. Gangia, and, therefore, due to non-substitution of Gangia within the statutory period, the appeal has abated.

21. It was contended by the learned Government Advocate that by virtue of Section 14 of the Hindu Succession Act (XXX. of 1956), hereinafter referred to as “the Act”, Mt. Murti, defendant No. 1, who was in possession of the property in suit, became an absolute owner thereof, and no longer remained a limited owner, and, therefore, there could be no oral surrender in respect of the properties belonging to Shamlal in favour of defendant No. 2, and, accordingly, the oral surrender, pleaded by defendants 2, 4 and 5, had no legs to stand on in law, and, as such, it must be rejected as invalid, even if it was a fact.

22. He further submitted that in such a case there can no doubt be a transfer but only by a registered document, and not otherwise as provided by the Transfer of Property Act. He further contended that under S. 15(1)(b) of the Act upon a female Hindu dying intestate, her property shall devolve, in the second place, upon the heirs of her husband, and, therefore, in the present case, in the admitted absence of the heirs of the first class mentioned in S. 15(1)(a). upon the death of Mt. Murti, her properties would go to defendant No. 2 and also to his sister Mt. Gangia, who were the only two heirs of Shamlal the husband of Mt. Murti.

23. The above contentions of the learned Government Advocate are correct and must be accepted. Under S. 14 of the Act in respect of the properties in her possession, Mt. Murti, defendant No. 1, became the full owner thereof, and, therefore, if she wanted to alienate her property, she could do so only in accordance with the provisions of the Transfer of Property Act which required a registered document, and, therefore, the land orally surrendered by her was in law invalid, and could not be given effect to.

24. Further, on the death of Mt. Murti, defendant No. 1, intestate, as provided by S. 15(1)(b), her property would devolve upon the heirs of her husband, who were admittedly, in the present case, defendant No. 2 and Mt. Gangia. Who the heirs of her husband were is to be found on a reference to S. 8(b) of the Act, which provides that the property of a male Hindu dying intestate shall devolve if there is no heir of class I, then upon the heirs, being the relatives specified in class II.

25. Section 9 of the Act provides the order of succession among the heirs in the schedule, and it says that those in class I shall take simultaneously and to the exclusion of all other heirs, those in the first entry in class II shall be preferred to those in the second entry, those in the second entry shall be preferred to those in the third entry and so on in succession. Here admittedly there is no heir of class I or of the first entry in class II. On a reference to class II of the schedule, mentioned in S. 8(b) of the Act, we find that under the second entry the relations mentioned are: (1) son's daughter's son, (2) son's daughter's daughter, (3) brother; (4) sister.” In the present case, Shamlal had admittedly only a brother, defendant No. 2, as his another brother, Sheonandan, defendant No. 3, was dead, and only a sister Mt. Gangia. On a review, therefore, of the aforesaid sections of the Act it is clear that Mt. Gangia and defendant No. 2 both inherited equally as the heirs of Murti's husband Shamlal after the death of Mt. Murti, defendant No. 1. In such a case if one of the legal representatives of the deceased is not brought on the record the appeal abates as against the non-substituted heir of the deceased.

26. It was conteded by Mr. Varma that how could his clients, namely, defendants 2, 4 and 5 respondents, make an application for substituting Mt. Gangia as it was for her to make such an application, and that she could do, only if she was made a party, because, it was quite likely she may not have agreed to be an appellant along with defendants 2, 4 and 5 who sought to be transposed from the category of the respondents to that of the appellants.

27. This argument was met by the learned Government Advocate by relying upon a Bench decision of the Calcutta High Court in Fajor Banu v. Rohim Bux, 32 Cal WN 1020 : (AIR 1929 Cal 26) in which it was held that in case of representatives unknown and unwilling to join in the application under O. 22, R. 3 of the CPC, a bona fide application by all the representatives, known or willing may be sufficient compliance with the law, but when there is a known representative whose unwillingness has not been proved, omission to have him substituted is fatal.

28. I express my respectful assent to this statement of law. The ratio of this case has application here also. It has not been established nor even alleged by Mr. Varma's clients in their application which they made on 22-2-1958, or on 10-9-1958, that Gangia was not willing to be added as an appellant or even as a respondent. On the other hand, they suppressed the existence of Mt. Gangia in their first application. For these reasons, the omission to substitute her in the present appeal is fatal.

29. Regarding the contention of Mr. Varma that the application filed on 22-2-1958, should be considered to be an application for substitution as-contemplated by O. 22 R. 3 of the CPC, it was contended by the learned Government Advocate that on the facts mentioned in that petition to the effect that defendants 2, 4 and 5 were the only heirs, no application for substitution was necessary as, according to R. 2 of O. 22 of the Code, the right to prosecute the appeal survived to them, and, therefore, in such a case, all that is necessary is that the court is required to cause an entry to that effect to be made on the record.

30. But here, when it is admitted that Mt. Gangia was the sister of Shamlal, it is obvious that the right to prosecute the appeal did not survive to them alone, but also to Mt. Gangia, who was not a party to the suit, and, therefore, the petition filed on 22-2-1958, cannot be considered to be an application for substitution within the meaning of O. 22 R. 3 of the Code. In my opinion, the contention of the learned Government Advocate is correct.

31. If defendants 2, 4 and 5 were the only heirs, no petition was necessary under R. 2 of O. 22; because a petition for substitution became necessary only under R. 3 of O. 22, when there is one who is not a party to the appeal. Therefore, no application for substitution having been made, the appeal has undoubtedly abated. Till now no application has been made for setting aside the abatement. Even in the petition filed on 10-9-1958, there is no prayer for setting aside the abatement. The only prayer is for adding Mt. Gangia as a party, but that could not be allowed when the appeal has abated.

32. Even if the application dated 22-2-1958, of Mr. Varma's clients is allowed, the position will not be different because even then, for non-substitution of Gangia, the appeal must abate. Their application of 10-9-1958, cannot also be allowed as there is no prayer for setting aside the abatement and the appeal having abated, Gangia cannot be added as a party, I would, therefore, reject both the above applications of Mr. Varma's clients.

33. For the reasons given above, therefore, I hold that the appeal has abated due to non-substitution of Gangia.

34. The next question is, has the whole appeal abated in consequence of the omission to substitute Gangia?

35. The learned Government Advocate relying on a Bench decision of this court in Awadh Bihari Prasad v. Jhaman Mahton, AIR 1953 Pat 324, contended that the whole appeal has abated. In that case, the widow was not substituted, and, therefore, the appeal was held to have abated.

36. The appeal having abated as against Gangia, the decree passed in favour of or against the plaintiff stands, and, it cannot be varied in her absence, as the sole appellant is dead and all her legal representatives are not on the record. It is obvious the appeal abates in its entirety as in the absence of the deceased appellant's legal representatives the appeal cannot proceed. Even assuming, however, that the defendants-respondents are transferred to the category of appellants and they are permitted to prosecute the appeal, even then the whole appeal must abate.

37. Because assuming that the appeal be allowed, at the instance of defendants 2, 4 and 5, then obviously that will give rise to two inconsistent decrees, because the decree as far as Mt. Gangia is concerned has become final, and, therefore, that decree cannot be reversed in her absence. In such a situation, it is well settled that the whole appeal abates.

38. I, therefore, hold that the whole appeal I has abated and, consequently, the sole appellant having died, and all her legal representatives not having been substituted, the appeal cannot proceed in the absence of the legal representative not on I the record. For these reasons, both the appeal and the cross-objection must be dismissed on the preliminary objection that they are incompetent and, therefore, they are so dismissed, but there will be no order for costs to any party in any of them.

H.G.P

39. Appeal and cross-objection dismissed.