DOLAI MOLLIKO & ORS. versus KRUSHNA CHANDRA PATNAIK & ORS.

Citation: [1966] SUPP. 1 S.C.R. 22 · Decided: 23-03-1966 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Appeal(s) allowed

Judgment (excerpt)

DOLAI MOLLIKO & ORS. 
v. 
KRUSHNA CHANDRA PATNAIK & ORS. 
March 23, 1966 
IK. N. WANCllOO, J. c. SHAH A~O s. M. S!KRI, JJ.I 
Code oj Civil Procedure, 1908 (Act 5 of 1908), O.XXII r.3-0m1s-
sio1t to bring on record all legal representatives-Effect. 
On the death of one of the plaint:ffs-appcllants in an appeal pend-
ing before the Subordinate Judge, an application was made for bring-
ing on record his heirs and these heirs were two, viz., his widow and 
a major son. No objection was made to this application and conse· 
quently the \vido\v and the major son v.:cre substituted on record as 
heirs. Later, when the respondent's further appeal was pending in 
the High Court. it was di9Covered that the deceased had left some 
other heirs besides the two who had been brought on record as his 
heirs. Consequently the respondents raised an objection that as some 
of the heirs of the deceased had been left out and there could be 
no question of want of knowledge of the existence of these heirs on 
the part of the "~dow and the major son who had applied for being 
brought on rceord, the appeal abated. The High Court upheld the 
objection. In appeal, this Court. 
HELD: The est<:te of the deceased was full;· reprrspnte<l b.v the 
heirs who had been brought on the record and these heirs represen-
ted the absent heirs also. who would be equally bound by the result 
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Even where the plaintiff or the appellant has died and all his 
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heirs have not been brought on the record because of oversight or be-
cause of some doubt as to who are his heirs. the suit or the appeal, as 
the case may be, does not abate and the heirs brought on the record 
fully represent the estate unless there is fraud or collusion or there 
are other circumstances which indicate that there has not been a fair 
or real trial or that against the absent heir there was a special case 
which was not and could not be tried in the proceedings f24 F-25B]. 
Further, in this case, the respondents themselves did not object 
that some heirs of the deceased had been left nut. f25 C-Dl. 
Case law referred to. 
OV!L APPELLATE JURJSDICTIO'i: Civil Appeal No. 836 of 
1963. 
Appeal by special leave from the judgment and decree dated 
January 4. 1962 of the Orissa High Court in S.A. No. 90 of 1960. 
R. Gopa/akrislman, for the appellants. 
F 
G 
B. Partl1asaratlzy, S. N. Prasad. J. B. Dadachanji, 0. C. 
H 
Matlz11r and Ral'inder Narain, for respondent No. I. 
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B 
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c 
D 
E 
F 
G 
H 
DOLA! ll!OLLIKO v. K. o. PATNAIK (Wanchoo, J.) 
23 
The Judgment of the Court was delivered by 
Wanchoo, J. This is an appeal by special leave against the 
judgment of the Orissa High Court. The brief facts necessary for 
present purposes are these. A suit was brought by eleven plaintiffs 
(who are appellants before us) including Dolai Molliko for a decla· 
ration that the plaintiffs were tenants with occupancy rights in the 
lands in dispute. The suit was resisted by the defendants who are 
now respondents. The Munsif dismissed the suit. Thereupon there 
was an appeal by the plaintiffs. During the pendency of that appeal, 
Dolai Molliko, appellant, died in March 1958. An application was 
made within time for bringing on record his heirs, and these heirs 
were two, namely, the widow and a major son of the deceased. No 
objection was made to this application and consequently the widow 
and the son of the deceased were substituted on record as heirs. 
The Subordinate Judge allowed the appeal and decreed the suit 
and gave the declaration prayed for by the plaintiffs. Then followed 
a second appeal to the High Court by the defendants-respondents. 
When the appeal was pending in the High Court, it was discovered 
that Dolai had left three other heirs, namely, a minor son, a married 
daughter and an unmarried daughter besides the widow and the 
major son who had been brought on reoord as his heirs. Conse-
quently an objection was raised in the High Court on behalf of the 
present respondents that as ail the heirs of the deceased Dolai had 
not been brought on record, the appeal before the Subordinate 
Judge had abated in toto. The High Court accepted this contention 
and held that as three heirs had been left out and as there could 
be no question of want of knowledge of the existence of these heirs 
on the part of the widow and the major son who had applied for 
being brought on record, the appeal abated, as it was not disputed 
that in the present case the appeal would abate in

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