The failure to implead one of several legal representatives of a deceased defendant does not lead to the abatement of the suit as a whole as long as one of the legal representatives is so impleaded, and there is no collusion or fraud.

H.R. Krishnan, J.

1. In this application by one of the defendants the question is whether, in the circumstances of the present case, this defendant can be deemed adequately to represent the estate of the other, his father, who died during the pendency of the suit, "notwithstanding the non-impleading in time of his daughter, who is an heir under the Hindu Succession Act of 1956.

2. The facts of the case are the following. The non applicant brought a suit against the applicant and his father, Ram Gopal, for a sum of money as the price of goods delivered, and of money lent. Some preliminary objections were made, written statement was filed and issues were framed. Ram Gopal defendant No. 1 died on 22-1-1937 after the coming into force of the Hindu Succession Act of 1956; the legal representatives being the present applicant (already defendant No. 2) and the daughter Tribeni Bai No application for impleading her was made in time, nor any, under O. 22 R 9 for setting aside the abatement. An application for action under O. 22 R. 2 was made on 23-7-57. As a result, out of his two representatives one was already on record, and the other was not substituted. The applicant (defendant) contended that the suit had entirely abated and should be dismissed as such; the plaintiff, however argued that for one thing it was a case of joint promise with joint and several liability of the two defendants, and on the other, even without such joint and several liability, the defendant already on record adequately represented the estate of the deceased defendant for the purposes of the suit notwithstanding that the other legal representatives has been omitted.

3. On the ground of joint promise with joint and several liability there was really no evidence. The suit was itself on the basis that the business was that of a joint family. On the second ground, namely the adequacy of representation of the estate of the deceased the learned Civil Judge relied upon ruling reported in A.I.R. 1954 Raj 287 and held that the defendant No. 2 adequately represented the estate of the deceased defendant, and as such the suit could proceed.

4. This is a suit in which the right to sue survives the deceased defendant. Three questions arise out of which the first two have been answered with near unanimity by High Courts to the following effect: Firstly, if any legal representative of the deceased defendant has already been impleaded and is on the record for any purpose whatever, he need not again be brought in by substitution. Secondly, if any of the legal representatives is not already on the record, he has to be brought in by substitution, then the procedure in O. 22 R 4 and R. 9, as the case may be, should be adopted. But the third question is more complicated. When one defendant dies, leaving two or more legal representatives and only one of them has been impleaded, what is the legal consequence of this failure to implead the others ? There has been some difference of opinion between some of the High Courts in the past, but the recent tendency is towards uniformity.

5. The applicant has relied on the ruling reported in Alt Mian vs. Nam Gazi (41 Indian Cases 430) In this case the failure of the appellants to bring on record all the legal representatives of the deceased respondents led to the appeal being declared abated in toto. The appeal arose out of a rent suit. During the pendency of the appeal the plaintiff-respondent died leaving several heirs, out of whom some are minors the appellant then substituted the major heirs of the deceased.

6. The non-applicant has on the other hand cited the following rulings. In Narayan vs. Amrita (A. I. R. 1923 Nag 101) it was held that even where the plaintiff had failed to implead one out of two legal representatives of the dead defendant, he was entitled to get relief against the legal representatives whom he had actually impleaded. This view has been followed in later rulings of the same High Court as for example Abdul Baki vs Ban