Legal heirs can be added to a suit against joint tenants, but not against a sole deceased defendant.

1. This appeal by the plaintiff who has had a mixed fortune so far, viz., successful termination of the suit before the learned trial court and then dismissal of the suit on appeal by the contesting defendants, raises a very short but interesting question.

2. The question involved is whether in a suit against a person who dies before the institution of the suit, his legal heirs and representatives can be subsequently brought on record on discovery of the fact of his death.

3. The plaintiff's suit which is for the setting aside of the ex parte decree passed against her in Title Suit No.221 of 1957 and for recovery of possession and other reliefs, is based on the following facts :
Abdur Rahaman, the plaintiff's father was a thika tenant under the defendants Nos. 1 and 2 in respect of the properties in suit. He died on Nov.11,1954 at Dacca leaving the plaintiff and the pro forma defendants Nos.3 to 5 as his legal heirs. About long three years after his death, the defendants 1 and 2 filed a suit for eviction against him being Title Suit No. 221 of 1957 where his brothers, the pro forma defendants Nos. 6 and 7 were unnecessarily made parties since they had no interest in the suit properties. Subsequently the name of Abdur Rahaman was expunged and the plaintiff and his other legal heirs were added as parties in his place. Thereafter, by suppression of summons the defendants Nos.1 and 2 obtained an ex parte decree in that suit.

4. Besides giving a denial to all the material allegations contained in the plaint, the defendants 1 and 2 also alleged that they had taken actual physical possession of the properties in suit in execution of the decree.

5. The learned Munsif having decreed the suit in part on both the counts, viz., filing the suit against a dead person and suppression of summons on the plaintiff, the defendants 1 and 2 moved up in appeal being Title Appeal No.420 of 1962 and the learned lower appellate court mainly on the ground that there was no fraudulent suppression of summons upon the plaintiff, allowed the appeal, set aside the judgment and decree of the learned Munsif and dismissed the suit.

6. Hence the instant appeal by the plaintiff before this Court.

7. The respondents did not appear to contest.

8. Appearing on behalf of the appellant it was frankly conceded by Mr. Ali, the learned Advocate, that the materials on record were not sufficient to prove fraudulent suppression of summons upon the plaintiff. He, however, stuck to the point that Abdur Rahaman having died before the institution of the suit there was absolutely no scope for bringing his legal heirs on record and the suit ought to have failed on the ground that it was brought against a dead person.

9. Certain relevant facts may be stated in this connection for proper appreciation of the legal question involved. It is not disputed that Abdur Rahaman died before Title Suit No. 221 of 1957 was instituted on Sept. 17, 1957. The plaintiff produced his death certificate to show that he died at Dacca on Nov. 11, 1954, i.e., about three years before the institution of the suit.

10. Significantly, Abdur Rahaman was not the sole defendant in the suit. His two brothers (the pro forma defendant - respondents Nos. 6 and 7 here) were made defendants Nos. 2 and 3 on the allegation that they were claiming joint tenancy in the suit properties along with the defendant No. 1 Abdur Rahaman, though on records, the defendant No. 1 Abdur Rahaman was the sole tenant under the landlords.

11. The records show th