Where in a proceeding, a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the prescribed period of limitation, the proceeding will not abate on that account.

1. In this second appeal by the defendants, the only relevant question that arises for consideration is as to whether their appeal in the lower appellate court had abated entirely or if at all, in part. The court of appeal below has held that the whole appeal abated on account of the death of one of the respondents.

2. The precise facts to appreciate the question arising for determination are that a suit for partition was filed by the plaintiff-respondents claiming 1/3rd share in the suit properties. One Ram Dular Singh was defendant No. 2 and his son Sukram Singh, defendant No. 3, Ram Dular Singh did not file any , written statement. But the pleas of some of the contesting defendants including the appellants was that there had already been a previous partition. The trial court decreed the suit and therefore, the appellants filed a title appeal in the court of the District Judge, Muzaffiarpur. In that appeal, Ram Dular Singh was respondent No. 3 and his son Sukhram Singh was respondent No. 4. Unfortunately, for the appellants, this Ram Dular Singh died on the 12.03.1968 during the pendency of the appeal in that court and the appellants did not take any step for substitute the plaintiff-respondent made an application that the said respondent, Ram Dular singh had died leaving behind two more heirs and legal representatives besides his son Sukhram Singh Respondent No. 4), namely, a daughter Maha Sundar Devi and Banarsi Devi being a pre-deceased daughters daughter, respectively and no substitution having been made of the said heirs and legal representatives, the appeal had abated as a whole. In reply to this petition of the plaintiffs, the defendants-appellants made an application praying for expunging the name of the said respondent No. 3 and taking a definite stand that the deceased respondent had left only one son as heir and legal representative, namely, Sukhram Singh, who was already on the record of the case as respondent No. 4, no question for substitution arose. The plaintiffs again filed a rejoinder to this petition and in reply to this petition, of the plaintiffs, the appellants this time filed a petition that the assertion of the plaintiffs of the existence of more heirs and legal representatives of the deceased Ram Dular Singh was not correct and further stated that if it was thought expedient, in order to avoid any controversy, they had no objection if the alleged heirs and legal representatives be added as party respondents.

3. In spite of these conflicting attitudes adopted by the respective parties, the learned Additional District Judge did not think it necessary to direct any enquiry under mule 5 of Order 22 of the Code of Civil Procedure and when the appeal was taken up for final hearing, under the impression that the attitude of the appellants in praying for addition of those two heirs and legal representatives amounted to an admission of the existence of those two heirs and legal representatives, for want of their substitution, in his opinion, the appeal abated as a whole. It may be stated that the prayer for addition of those two heirs and legal representatives had already been disallowed earlier. There is no appearance on behalf of the respondents in this Court and by taking permission of this Court, the appellants also impleaded as party respondents the aforesaid alleged female heirs and legal representatives.

4. Having heard learned counsel for the appellants, in my opinion, the learned Additional District Judge has committed an apparent error of law in holding that the appeal had abated as a whole. In view of the decisions, which I shall presently refer, it is now well settled that in the circumstances of the present case there was no question of abatement at all in view of the son of the deceased respondent being already on the record of the case. The Supreme Court has since considered this question in two decisions, namely, in the case of Dolai Maliko V/s. Krushna Chandra Patnaik (AIR 1967 SC 49)