RP Nos. 913 & 992 of 2013 in S.A. 67 of 1997

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 24TH DAY OF FEBRUARY 2014/5TH PHALGUNA, 1935** ## **RP.No. 913 of 2013 ()** **-------------------SA 67/1997 of HIGH COURT OF KERALA -------REVIEW PETITIONERS IN R.P. - L.RS ADDL.R11 IN SA: ------------------------------------------------** **1. VIDYA VIJAYAN, W/O.LATE VIJAYAN, RESIDING AT KALIYOOR, MADAKKA KALIYOOR, MANJESHWAR, KASARAGOD PIN 671 323.** **2. SUSHIL KUMAR, S/O.LATE VIJAYAN, RESIDING AT KALIYOOR, MADAKKA, KALIYOOR, MANJESHWAR, KASARAGOD PIN 671 323.** **3. SUSHAMA D/O.LATE VIJAYAN AND W/O.SUNDER RESIDING AT PADMAVATHI NILAYA NEAR G.H.S.S KUNJATHUR, THOMMINAD, KUNJATHUR POST MANJESHWAR, KASARAGOD 671 323.** **BY ADVS.SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN** ## **RESPONDENTS IN RP- APPELLANTS & RESPONDENTS IN SA:** **-------------------------------------------------** **1. R C KUMAR(DEAD) S/O.POOVAMMA, SOMESHWAR VILLAGE, MANGALORE TALUK, P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.** **2. SAKAMMA @ SHAKUNTHALA, AGED 84 YEARS, D/O.POOVAMMA, RESIDING AT BANGRAMANJESHWAR VILLAGE, KASARAGOD TALUK, P.O MANJESHWAR, PIN 671 323.** **3. AMMANI, D/O.POOVAMMA, AGED 89 YEARS, RESIDING AT BANGRAMANJESHWAR VILLAGE KASARAGOD TALUK, P.O MANJESHWAR, PIN 671 323.** ## **RP.No. 913 of 2013 ()** **4. M.K.PREMAKUMARI, AGED ABOUT 45 YEARS, D/O.AMMANI, RESIDING AT BANGRAMANJESHWAR VILLAGE, KASARAGOD TALUK, P.O MANJESHWAR, PIN 671 323.** **5. M.JAYALAKSHMI, AGED 66 YEARS, D/O.AMMANI, SOMESHWAR VILLAGE, MANGALORE TALUK, P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.** **6. RAVIKUMAR, AGED ABOUT 42 YEARS, S/O.AMMANI, SOMESHWAR VILLAGE, MANGALORE TALUK P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.** **7. P.RATHNA, D/O.AMMANI, SOMESHWAR VILLAGE, MANGALORE TALUK, P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.(DEAD)** **8. RAMESHA, AGED 35 YEARS, MAJOR S/O.P.RATHNA, SOMESHWAR VILLAGE, MANGALORE TALUK, P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.** **9. B.SURYA, D/O.AMMANI, SOMESHWAR VILLAGE, MANGALORE TALUK, P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.(DEAD)** ## **10. REVATHY** - **D/O.B.SURYA, MINOR, SOMESHWAR VILLAGE, MANGALORE TALUK, P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.(DEAD).** **11. PRABHU, AGED 37 YEARS, S/O.B.SURYA, SOMESHWAR VILLAGE, MANGALORE TALUK, P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.** **12. RAMESH, AGED ABOUT 30 YEARS, S/O.B.SURYA, SOMESHWAR VILLAGE, MANGALORE TALUK P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.** **13. P.MOHANA, AGEDABOUT 56 YEARS, D/O.AMMANI, RESIDING AT BANGRAMANJESHWAR VILLAGE, KASARAGOD TALUK, P.O MANJESHWAR, PIN 671 323.** **14. RAJALAKSHMI, AGED ABOUT 37 YEARS, D/O.P.MOHANA, RESIDING AT BANGRAMANJESHWAR VILLAGE KASARAGOD TALUK, P.O MANJESHWAR, PIN 671 323.** **15. LOKESH, AGED ABOUT S/O.P.MOHANA, RESIDING AT BANGRAMANJESHWAR VILLAGE KASARAGOD TALUK, P.O MANJESHWAR, PIN 671 323.** **16. M.K.PARAMASHIVAN S/O.AMMANI, RESIDING AT BANGRAMANJESHWAR VILLAGE KASARAGOD TALUK, P.O MANJESHWAR, PIN 671 323.** ## **RP.No. 913 of 2013 ()** **17. B.M.DEVI, AGE ABOUT 81 YEARS, D/O.POOVAMMA, RESIDING AT BANGRAMANJESHWAR VILLAGE KASARAGOD TALUK, P.O MANJESHWAR, PIN 671 323.** **18. B.M.SURESH, AGED ABOUT 47 YEARS, S/O.B.M.DEVI, RESIDING AT BANGRAMANJESHWAR VILLAGE, KASARAGOD TALUK, P.O MANJESHWAR PIN 671 323. REPRESENTED BY POWER OF ATTORNEY HOLDER NO.17.** **19. JYOTHI, AGED 44 YEARS, D/O.B.M.DEVI, RESIDING AT BANGRAMANJESHWAR VILLAGE, KASARAGOD TALUK, P.O MANJESHWAR, PIN 671 323.** **20. PRABHAVATHI, AGED ABOUT 42 YEARS, D/O.B.M.DEVI, RESIDING AT BANGRAMANJESHWAR VILLAGE KASARAGOD TALUK, P.O. MANJESHWAR, PIN 671 323.** **21. GANESH, AGED ABOUT 40 YEARS, S/O.B.M.DEVI, RESIDING AT BANGRAMANJESHWAR VILLAGE KASARAGOD TALUK, P.O MANJESHWAR, PIN 671 323.** **22. B.M.ROHINI, AGED 72 YEARS, D/O.POOVAMMA, RESIDING AT KANNABETTU, KADRI MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT KARNATAKA STATE, P.O MANGALORE.** **23. SAIGEETHA, AGED ABOUT 45 YEARS, D/O.B.M.ROHINI, RESIDING AT KANNABETTU, KADRI MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT KARNATAKA STATE, P.O MANGALORE.** **24. ANITHA, AGED ABOUT 43 YEARS, D/O.B.M.ROHINI, RESIDING AT KANNABETTU, KADRI MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT KARNATAKA STATE, P.O MANGALORE.** **25. KAVITHA, AGED ABOUT 40 YEARS, D/O.B.M.ROHINI, RESIDING AT KANNABETTU, KADRI MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT KARNATAKA STATE, P.O MANGALORE.** **26. SANGEETHA, AGED BOUT 38 YEARS, D/O.B.M.ROHINI, RESIDING AT KANNABETTU, KADRI MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT KARNATAKA STATE, P.O MANGALORE.** **27. MUKTHA, AGED ABOUT 35 YEARS, D/O.B.M.ROHINI, RESIDING AT KANNABETTU, KADRI MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT KARNATAKA STATE, P.O MANGALORE.** ## **RP.No. 913 of 2013 ()** **28. SUSHANTHA, AGED 32 YEARS, D/O.B.M.ROHINI, RESIDING AT KANNABETTU, KADRI MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT KARNATAKA STATE, P.O MANGALORE.** **29. K.GOPALAKRISHNAN, AGED ABOUT 68 YEARS, S/O.DEVAKI, SOMESHWAR VILLAGE, MANGALORE TALUK P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.** **30. B.M.PUSHPAVATHI, AGED ABOUT 68 YEARS, D/O.DEVAKI, SOMESHWAR VILLAGE, MANGALORE TALUK P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.** **31. HEMALATHA, AGED 43 YEARS, D/O.B.M.PUSHPAVATHI, SOMESHWAR VILLAGE, MANGALORE TALUK, P.O KOTEKKAR, DAKSHINA KANNADA KARNATAKA STATE.** **32. HARSHAD, AGED ABOUT 36 YEARS, S/O.B.M.PUSHPAVATHI, SOMESHWAR VILLAGE MANGALORE TALUK, P.O KOTEKKAR, DAKSHINA KANNADA KARNATAKA STATE.** **33. B.M.SHASHIDHARA, AGED ABOUT 58 YEARS, S/O.SAKAMMA, SOMESHWAR VILLAGE, MANGALORE TALUK, P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.** **34. K.SAJEEVA, AGED ABOUT 67 YEARS, S/O.DEVAKI, SOMESHWAR VILLAGE, MANGALORE TALUK, P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.** **35. B.M.SHIVAJI, AGED ABOUT 66 YEARS, S/O.DEVAKI, SOMESHWAR VILLAGE, MANGALORE TALUK, P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.** **36. B.M.KAMALA, AGED ABOUT 77 YEARS D/O.POOVAMMA, RESIDING AT KANNABETTU, KADRI MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT KARNATAKA STATE, P.O MANGALORE.** **37. PRAMOD KUMAR, AGED ABOUT 54 YEARS, S/O.B..KAMALA, RESIDING AT KANNABETTU, KADRI MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT KARNATAKA STATE, P.O MANGALORE.** **38. PRAMEELA, AGED BOUT 51 YEARS, D/O.B.M.KAMALA, RESIDING AT KANNABETTU, KADRI MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT KARNATAKA STATE, P.O MANGALORE.** ## **RP.No. 913 of 2013 ()** **39. ANEETHA, AGED ABOUT 51 YEARS, D/O.B.M.KAMALA, RESIDING AT KANNABETTU, KADRI MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT KARNATAKA STATE, P.O MANGALORE.** **40. VINODA, AGE ABOUT 49 YEARS, S/O.B.M.KAMALA, RESIDING AT KANNABETTU, KADRI, MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT KARNATAKA STATE, P.O MANGALORE.** **41. B.M.LEELA, AGED ABOUT 60 YEARS, D/O.SAKAMMA, SOMESHWAR VILLAGE, MANGALORE TALUK P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.** **42. RESHMA, AGED ABOUT 35 YEARS,** - **D/O.B.M.LEELA, SOMESHWAR VILLAGE, MANGALORE TALUK P.O KOTEKKAR, DAKSHINA KANNADA KARNATAKA STATE.** - **[NOS. 41 AND 42 ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER NO.2 SAKAMMA]** **43. RAVI PRAKASH KUMAR, AGED ABOUT 59 YEARS, S/O.R.C.KUMAR, SOMESHWAR VILLAGE, MANGALORE TALUK, P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.** **44. MANU PRAKASH KUMAR, AGED ABOUT 56 YEARS, S/O.R.C.KUMAR, SOMESHWAR VILLAGE, MANGALORE TALUK P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.** **45. RAJU PRAKASH KUMAR, AGED ABOUT 52 YEARS, S/O.R.C.KUMAR, SOMESHWAR VILLAGE, MANGALORE TALUK, P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.** **46. JAYA PRAKASH KUMAR, AGED 48 YEARS, S/O.R.C.KUMAR, SOMESHWAR VILLAGE, MANGALORE TALUK, P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.** **47. LALLI, AGED ABOUT 45 YEARS, D/O.R.C.KUMAR, SOMESHWAR VILLAGE, MANGALORE TALUK, P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.** **48. NANDA PRAKASH KUMAR, AGED ABOUT 42 YEARS, S/O.R.C.KUMAR, SOMESHWAR VILLAGE, MANGALORE TALUK, P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.** **49. P.KUMARAN S/O.KANNAN, RESIDING AT UDYAVAR IN UDYAVAR VILLAGE KASARAGOD TALUK, P.O MANJESHWAR (DIED).** **50. SYED AHMED, AGED ABOUT 59 YEARS, S/O.AHAMED ALIA KUNHI BEARY RESIDING AT UDYAVAR IN UDYAVAR VILLAGE, KASARAGOD TALUK, P.O MANJESHWAR.** ## **RP.No. 913 of 2013 ()** **51. MRS. ATHIKA, AGED ABOUT 59 YEARS, D/O.AHAMED ALIAS KUNHI BEARY RESIDING AT UDYAVAR IN UDYAVAR VILLAGE KASARAGOD TALUK, P.O MANJESHWAR.** **52. AJIDA, AGED ABOUT 62 YEARS, D/O.AHAMED ALIAS KUNHI BEARY RESIDING AT UDYAVAR IN UDYAVAR VILLAGE KASARAGOD TALUK, P.O MANJESHWAR.** **53. MOHAMMED, S/O.ALI AHAMED, AGED ABOUT 62 YEARS, RESIDING AT UDYAVAR IN UDYAVAR VILLAGE KASARAGOD TALUK, P.O MANJESHWAR.** **54. USMAN, S/O.ALI AHAMED RESIDING AT UDYAVAR IN UDYAVAR VILLAGE, KASARAGOD TALUK, P.O MANJESHWAR.** **55. KASARAGOD CO-OPERATIVE LAND MORTGAGE BANK LTD, KASARAGOD, REPRESENTED BY ITS SECRETARY, NAYAK ROAD KASARAGOD.** **56. P.ROHINI, W/O.P.KUMARAN RESIDING AT UDYAVAR IN UDYAVAR VILLAGE KASARAGOD TALUK, P.O MANJESHWAR.(DIED).** **57. SATHY R.C.KUMAR, D/O.P.KUMARAN, RESIDING AT UDYAVAR IN UDYAVAR VILLAGE KASARAGOD TALUK, P.O MANJESHWAR.(DIED).** **58. N.DIVAKARAN RESIDING AT UDYAVAR IN UDYAVAR VILLAGE KASARAGOD TALUK, P.O MANJESHWAR.(DIED)** **59. VIJAYAN RESIDING AT UDYAVAR IN UDYAVAR VILLAGE KASARAGOD TALUK, P.O MANJESHWAR.(DIED).** **60. BHARATH, AGED ABOUT 55 YEARS, RESIDING AT UDYAVAR IN UDYAVAR VILLAGE KASARAGOD TALUK, P.O MANJESHWAR.** **61. BHASKARA RESIDING AT UDYAVAR IN UDYAVAR VILLAGE KASARAGOD TALUK, P.O MANJESHWAR.(DIED).** **62. SHYAMALA ALIAS TARA, AGED ABOUT 50 YEARS, RESIDING AT UDYAVAR IN UDYAVAR VILLAGE KASARAGOD TALUK, P.O MANJESHWAR.** **63. AHALYA, AGED ABOUT 47 YEARS, RESIDING AT UDYAVAR IN UDYAVAR VILLAGE, KASARAGOD TALUK, P.O MANJESHWAR.** ## **RP.No. 913 of 2013 ()** **64. MADHUSUDANA, AGED ABOUT 45 YEARS, RESIDING AT UDYAVAR IN UDYAVAR VILLAGE KASARAGOD TALUK, P.O MANJESHWAR.** **65. VIJAYALAXMI, AGED ABOUT 42 YEARS, RESIDING AT UDYAVAR IN UDYAVAR VILLAGE KASARAGOD TALUK, P.O MANJESHWAR. BY ADVS. SRI.K.G.GOURI SANKAR RAI SRI.N.M.MADHU SRI.P.K.MUHAMMED** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 24-02-2014, ALONG WITH RP. 992/2013,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BP** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - R.P. Nos. 913 & 992 of 2013 in S.A. No. 67 of 1997. - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of February, 2014. ## **ORDER** These review petitions have been filed by the legal heirs of deceased 11[th] and 10[th] respondents respectively in S.A. 67 of 1997. 2. The suit was one for recovery of possession on the strength of title and for mesne profits. For the purpose of these review petitions, it is unnecessary to go into the details of the case. Suffice to say that the trial court had dismissed the suit. The lower appellate court, for different reasons, confirmed the judgment and decree of the trial court. The Second Appeal is directed against the said judgment and decree. 3. During the pendency of the second appeal before this Court, the first respondent died and his legal heirs R.P.913 & 992/2013. 2 were brought on the party array as additional respondents 8 to 17. The second appeal was heard on 17.6.2010 and the judgment was pronounced on 8.7.2010. In the meanwhile, the appellant had filed a memo pointing out that additional respondents 10, 11 and 13 died. This Court noting the fact that the estate is substantially represented by other respondents in the second appeal thought it unnecessary to implead the legal heirs of those additional respondents and passed an order to that effect and finally the second appeal was disposed of. 4. The said act of this Court ordering that the legal heirs of additional respondents 10 and 11 who died during the pendency of the appeal need not be impleaded and their estate is substantially represented by the other respondents is taken objection to in these review petitions. It is pointed out by the learned counsel appearing for the review petitioner in R.P. 913 of 2013 is that the theory of substantial R.P.913 & 992/2013. 3 representation could not have been invoked in this case since the said theory cannot be applied to the case on hand. 5. It was contended that the theory of substantial representation of the estate can be invoked only when the person, who is bound to implead the legal heirs, after due enquiries regarding the persons concerned, is unable to find or gather the necessary details. It is only in such cases the other persons who represent the estate could be taken as representing the whole body of the legal heirs. For the above proposition, learned counsel relied on the decisions reported in Chacko Pyli v. Iype Varghese (1955 K.L.T. 739), Mary Metilda v. Kunjiran Kunju Kathija Ummal (1969 K.L.T. 241), in Rameshwar Prasad v. Shambehari Lal (AIR 1963 SC 1901) and in Municipal Council, Mandsaur v. Fakirchand (AIR 1997 SC 1251). 6. Learned counsel also pointed out that after the commencement of the Joint Hindu Family System (Abolition) 4 R.P.913 & 992/2013. Act, the interest of each of the co-owner is distinct and separate and it cannot be said that one co-owner can represent the other co-owners. For the above proposition, learned counsel relied on the decision reported in R.P. Gupta v. Murli Prasad (AIR 1972 SC 1181). 7. Learned counsel appearing for the review petitioners therefore contended that it was absolutely necessary for the appellants to implead the legal heirs of the deceased additional respondents 10 and 11 and the judgment passed without impleading their legal heirs is not binding on them and is bad in law. 8. Learned counsel appearing for the contesting respondents in these review petitions on the other hand contended that it was after applying its mind that this Court had directed that it was unnecessary to implead the legal heirs of additional respondents 10 and 11 who died during the pendency of the appeal. They were impleaded as the legal R.P.913 & 992/2013. 5 heirs of the deceased first respondent. Learned counsel pointed out that it is significant to notice that respondents 8 to 17 who were impleaded as additional respondents and as legal heirs of the first respondent could not and did not take any contention not in consonance with the contention of the first respondent and they are bound by the contentions taken by the first respondent. They did not come on record in their individual capacity and they could not and did not agitate any independent claim. It was pointed out by the learned counsel that the persons now come forward with the review petitions are the legal heirs of the legal heirs of the first respondent and going by the decision reported in Muthuraman v. Adaikappa (AIR 1936 Madras 336), it is not necessary to implead the petitioners in the second appeal. 9. True that this Court had observed on the memo being filed by the respondents that additional respondents 10, R.P.913 & 992/2013. 6 11 and 13 are no more and that it is unnecessary to implead the legal heirs as the estate of the first respondent is substantially represented. 10. In the decision in Chacko Pyli's case (supra), it was held as follows: “The theory of substantial representation should be confined to cases where the Court decides a question as to who is the legal representative of a deceased party and that decision happen to be erroneous. The person determined by Court to be a legal representative will acquire competence by the order to represent the estate even though he may happen to be really not the legal representative. In a case where there are several legal representatives of a deceased person and according to the personal law applicable to them one of then can represent the others as in the case of a Malabar Tarvad or Thavazhi of a family under the Hindu Law the representation by the karanavan or kartha is complete. Where on the other hand the heirs are co-owners as in the case of Muslims or Christians, for instance, of the heirs cannot represent the others except when he could do so on account of any custom. Otherwise the interest R.P.913 & 992/2013. 7 of each heir as co-owner being distinct and separate if any one or more was not on record the interests of the absentee or absentees would be unrepresented and beyond the competence of the Court to deal with. This would be the result, however, bonafide the opposite party, the plaintiff or decree-holder, as the case may be, may have been. The bonafides of a claimant prosecuting a proceeding cannot and will not clothe one of the co-owners with competency to represent the others who are not on record. There is no principle on which it can be posited that bonafides of the plaintiff or decree holder would injuriously affect the interests of the parties omitted to be impleaded. On the other hand, if the person prosecuting the proceeding is guilty of fraud or collusion, in the matter of bringing certain persons on record as legal representatives the proceeding would be vitiated even though upon his fraudulent representation has been super-imposed the order of the Court that the persons put forward are the legal representatives of the deceased, for fraud vitiates the most solemn proceedings even of Courts of Law and the person guilty of a fraud will not be permitted to take advantage of the Court's order, as to allow him to do so would be to enable him to be benefited by his own fraud which the R.P.913 & 992/2013. 8 law abhors. Cases which depend on the bonafides of parties or upholding the propriety of proceedings in a Court would on analysis be found to rest upon circumstances short of absolute disability of one to represent another.” ## 11. In the decision in Mary Metilda's case (supra), ## it was held as follows: “The first requisite for the application of the principle is that the omission to bring all the heirs on the party was a bona fide error due to want of information, despite diligent enquiry, regarding the existence of the omitted heirs. In the present case, it can scarcely be said that the plaintiff's proceeding with the suit as if the defendant was alive was bonafide.” ## 12. In the decision in Rameshwar Prasad's case ## (supra), it was held as follows: “An appellate Court has no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O.41 R.4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies R.P.913 & 992/2013. 9 and the appeal abates so far as he is concerned.” ## 13. In the decision reported in Municipal Council, Mandsaur's case (supra), it was held as follows: “6. We are, however, unable to accept such contention of Mr. Gambhir for the reason that from the statement made in the plaint it cannot be definitely held that the property was coparceners property which could be represented by a Karta. It has been alleged in the plaint that after the death of the father, all the three brothers became owners of the said joint Hindu family property. It may be indicated here that if it was a coparcenery property then the son would have been coparceners even before the death of the father and there was no necessity to wait till the death of the father to get ownership of the property. The averments in the plaint really means that the disputed property was the undivided property of the said three joint owners who had inherited the father's interest after his death. That apart, even it is assumed that it was coparcenery property there is nothing on record to indicate that any one member of the eldest male member of the family was acting as a Karta of the joint family. On the contrary, it appears that all the co-owners filed the said R.P.913 & 992/2013. 10 suit for injunction, which on the face of it, only indicates that all of them intend to exercise their right as coowners of the property and they have not authorised any one of them to represent the property as a Karta of the joint Hindu family property. In the aforesaid circumstances, the decision of the High Court cannot be said to be erroneous for which any interference by this Court is called for. The appeal, therefore, fails and is dismissed without any order as to costs.” 14. In the decision reported in R.P. Gupta's case (supra), it was held as follows: “16. Under Rule 4 (3) r/w Rule 11 of Order XXII C.P.C. the appeal abates as against the deceased respondent where within the time limited by law no application is made to bring his heirs or legal representatives on record. As pointed out by this Court in the State of Punjab v. Nathu Ram, (1962) 2 SCR 636 = (AIR 1963 SC 89) it is not correct to say that the appeal abates against the other respondents. Under certain circumstances the appeal may not be proceeded with and is liable to be dismissed. But that is so not because of the procedural defect but because, as Mulla has pointed out, it is part of the substantive law. (See Mulla R.P.913 & 992/2013. 11 C.P.C. Vol. 1 Thirteenth Edition p. 620 under note Nonjoinder of Parties). No exhaustive statement can be made as to the circumstances under which an appeal in such cases cannot proceed. But the courts, as pointed out in the above decision, have applied one or the other of three tests. The courts will not proceed with an appeal (a) when the success of the appeal may lead to the court's coming to a decision which may be in conflict with the decision between the appellant and the deceased respondent and, therefore, it would lead to the court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed. These three testes, as pointed out by this Court in Sri Chand v. M/s. Jagdish Pershad Kishan Chand, (AIR 1966 SC 1427) are not cumulative tests. Even if one of them is satisfied, the court may dismiss the appeal.” R.P.913 & 992/2013. 12 15. One can have no quarrel with the proposition laid down in the above decisions. But the question is whether it applies to the facts of this case. 16. It does not appear from the records that as of now there was any petition filed by the appellants to the effect that on the death of additional respondents 10 and 11 they had made enquiries about the legal heirs and were unable to locate or find them. However, the fact remains that a memo pointing out the death was filed after the matter was taken up for hearing and therefore they had died before the matter was heard finally and disposed of. 17. It cannot be disputed that additional respondents 8 to 17 who are impleaded consequent on the death of the first respondent represent the estate of the first respondent. It is significant to notice that none of the additional respondents, i.e. respondents 8 to 17 did raise a contention inconsistent with the contention raised by the first R.P.913 & 992/2013. 13 respondent in their own individual capacity. They stood by the contentions taken by the first respondent in the suit. 18. When the estate is substantially represented, the fact that some of the legal heirs might not have been impleaded itself is not a ground to interfere with the decree. Of course, if the legal heirs who are not impleaded are able to show that the judgment or the order passed is to their prejudice or their interests are adversely affected or that their interests were not sufficiently represented by the persons on record, then there may be some substance in the contention raised by those persons. However, it is well settled that normally unless and until the leave of the court is obtained, the persons who are impleaded are bound by the stand taken by the deceased person in the proceedings. At the risk of repetition, one may notice that there is no case for the review petitioners that the deceased respondents, i.e., additional respondents 10 and 11 had taken a stand different from the R.P.913 & 992/2013. 14 one taken by the first respondent on whose death they were brought on the party array as legal heirs. 19. Normally, the theory of substantial representation is invoked when the person concerned, in spite of due diligence and enquiry, is unable to locate the legal heirs or the legal representatives. But that need not always be so. Even assuming that no enquiry as such is made, if it is found by the court that the estate is substantially represented and the legal heirs cannot take any contention other than the contention raised by the deceased person and that there are persons already on the party array who represented the estate of the deceased, the court can certainly dispense with the impleadment of other persons who are also the legal heirs. 20. In the case on hand, the petitioners are not the legal heirs of the first respondent. They are the legal heirs of the deceased 10[th] and 11[th] respondents who are brought on the party array on the death of the first respondent. In the R.P.913 & 992/2013. 15 ## decision reported in Muthuraman v. Adaikappa (AIR 1936 Madras 336), it was held as follows: “A decree obtained after the death of a defendant cannot bind his representatives unless they had been made parties to the suit. But there is a difference between cases in which the original party to the action dies and his legal representative is not brought on the record and cases in which only one of several representatives brought in as such during the pendency of an action dies and the estate continues to be represented by the remaining legal representatives; in the second group there is no lack of representation of the estate as the remaining representatives can as well represent the estate as the original group did. Hence where on the death of a defendant his two sons are brought on record as his representatives, but one of them dies and this is not know to the plaintiff who continues the suit and the subsequent proceedings bona fide with the two sons on record and the other son contests all proceedings, the subsequent proceedings taken are not null and void.” 21. Even if one may have slight hesitation or R.P.913 & 992/2013. 16 reservation in accepting the principle laid down in the above decision, that need not detain this Court is another fact. Respondents 10 and 11 who are impleaded as additional respondents and also the legal heirs of the deceased first respondent did not engage a counsel and did not seek to agitate the claim independently. If that be so, going by Order XXII Rule 4 Sub Rule (4) of C.P.C., the court is certainly empowered to exempt the impleadment of the legal heirs of such a person. To be more precise, the provision reads as follows: “4. Procedure in case of death of one of several defendants or of sole defendant.- ............. ............... (4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the R.P.913 & 992/2013. 17 said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.” Going by Order XXII Rule 11 of C.P.C., the provisions of Order XXII of C.P.C. are made applicable to appeals also. 22. In the light of the above provision and in the light of the fact that the additional respondents did not choose to independently contest the matter, the principles laid down in the various decisions referred to by the learned counsel for the review petitioners need not be discussed in detail. Even assuming that the principle applies, no infirmity could be noticed in the order of this Court directing that the legal heirs of additional respondents 10 and 11 who died during the pendency of the appeal need not be impleaded as the estate is sufficiently represented by other persons on the party array. 23. The contention that the parties are co-owners after the commencement of Joint Hindu Family System (Abolition) Act does not help the petitioners at all. True, after R.P.913 & 992/2013. 18 the commencement of the Act, the members of the family became tenants in common. But one should remember that they were representing the estate of the first defendant who was the contesting respondent. They were not agitating their independent rights. Respondents 8 to 17 were impleaded as the legal heirs of the first respondent and though it is true that respondents 10, 11 and 13 died during the pendency of the appeal, the fact remains that the other respondents who are brought on the party array as additional respondents did represent the estate and the interest of the deceased first respondent. This Court has in paragraph 9 of its judgment observed that learned counsel appearing for the contesting respondents were heard in detail. There is nothing to show that respondents 10 and 11 had raised an independent claim apart from the claim raised by the first respondent, asserting any manner of right inconsistent or contrary to the interests of the first respondent. If that be so, the claim on the basis that R.P.913 & 992/2013. 19 the petitioners are also co-owners will take them no where. It is not their independent right that was being agitated in the appeal but the right, title and interest of the first respondent that is the subject matter of the appeal. The principle that one co-owner can agitate the claim of another co-owner has no application in the present case. For the above reasons, this Court finds no reason to interfere with the judgment in S.A. 67 of 1997 and these review petitions are without any merit. They are accordingly dismissed. P. BHAVADASAN, JUDGE sb.