AIR 1959 PATNA 446

Patna High Court

Hon'ble Judge(s): Raj Kishore Prasad , J

(A) Civil P.C. (5 of 1908) , O.22 R.3— Two or more legal representatives - Substitution of some only - Effect - Subsequent addition when permissible. Hindu Succession Act (30 of 1956) , S.15(1)(b)— In case of representatives unknown and unwilling to join in the application under O. 22, R. 3 Civil P.C. a bona fide application by all the representatives, known or willing may be sufficient compliance with the law, but when there is a known representative whose unwillingness has not been proved, omission to have him substituted is fatal.(Para 17) Upon the death of M who was defendant 1 and the sole appellant, some of the remaining defendants applied for transposition, stating that they were the only heirs of M's husband and consequently, the legal representatives of M. They deliberately suppressed the existence of one G who was the sister of M's husband, and it was only after the enquiry made by the Court that they subsequently admitted G's existence and applied for her substitution which was by that time beyond the statutory period. It was not established nor alleged that G was not willing to be added. Held (i) that the non-substitution of G being mala fide the principle of AIR 1948 Pat 288 and ILR 4 Patna 320 could not apply and the appeal abated in its entirety;(Para 14) ....