S.K.Chaudhary, J.

1. In these cases the common question of law referred to the Full Bench are the following-

(1) When a party to a suit dies and some of his heirs are already on the record and some are not, and are not substituted in the proceeding, the proceedings abate or the heirs on the record represent the entire estate of the deceased for the purpose of the proceeding and the proceeding does not become defective?

(2) Whether the answer to the first question is of universal application or is dependent on certain conditions, if so, what are the conditions.

Before answering the questions, for convenience I re-formulate the first question in the following language:

(1) When some of the heirs of the deceased party are already on record and the rest of the heirs are not substituted, whether the proceeding becomes defective and abates or whether by application of the principle of representation by the heirs on record the proceeding does not abate?

2. In order to answer the questions mentioned above it is necessary to state the sailent facts of the appeal. Miscellaneous Appeal No 157 of 1975 has been preferred by plaintiffs Nos. 2 to 6 against an order of partial abatement of the suit dated 16th July 1975 passed by the Second Additional Subordinate Judge, Bhagalpur in Title Suit No. 178 of 1966 by which an application for setting aside abatement against deceased respondent No 8 (Sri Bandhu Ram Marwari) and bringing his heirs and legal representatives on record has been rejected and it has been held that the suit has abated only against deceased respondent No. 8, and has not abated as a whole.

The aforesaid Civil Revision (Civil Revision No. 837 of 1975) has been filed by the defendants first party against that portion of the said order by which the court below has refused to hold that the appeal has abated as a whole The Civil Revision was ordered to be heard along with the aforesaid miscellaneous appeal. M.A. No. 147 of 1973 has been filed by the sole plaintiff against an order dated 10th May, 1967 passed in Title Appeal No. 49 of 1962 by the Additional Subordinate Judge, Muzaffarpore arising out of the judgment dated 16th February 1962, passed in Title Partition Suit No. 79 of 195c, holding that the appeal has abated as a whole for non-substitution of one of the heirs, namely, the daughter in place of deceased No. 1 Narain Singh, although his two sons were already on record as respondent Nos. 2 and 3.

3. The plaintiffs had filed a title suit which was registered as Title Suit No. 1978 of 1966 under Section 72(2) of the Bihar Hindu Religious Trust Act praying therein for setting aside two sale deeds dated 21.4.1946 and 22.9.1952 executed by defendant No. 17 in his capacity as one of the trustee. The first sale deed was executed is favour of one Budhulal Marwari (defendant No. 8) and the second sale deed was executed in favour of Raghubans Bhagat and Kaushal Kishore Bhagat, defendants Nos. 2 and 3 respectively. A relief for Khas possession was also prayed.

During the pendency of the suit, the plaintiff filed an application on 18.3.1975 for deleting the name of defendant No. 8, who is said to have died, on 15.10.1974 and which fact, according to plaintiff was learnt on 16.3.1975, from one Shri Babulal Mohansaia. Tnus a prayer was made for amending the plaint, accordingly. It was also stated in that application that the sons of defendant No. 8 are already on record as defendant Nos. 9 to 12. The names of four other heirs, namely, the four daughters have also been disclosed in that petition and, accordingly, a prayer was made to add their names. Another application was filed on 4.3.1995 by the plaintiffs for condonation of delay and substitution after sitting aside abatement against defendant No. 8. Defendants Nos. 1 to 6 who were arrayed as defendant first party contested the said application. The trial Court took evidence and thereafter on discussion of the evidence held that there was no sufficient cause for setting asid