AZEEZ SAIT 'DEAD' BY L.RS. AND ORS.versusAMAN BAI AND ORS.

A                AZEEZ SAIT 'DEAD' BY L.RS. AND ORS.
                                 v.
                        AMAN BAI AND ORS.

                              OCTOBER 13, 2003
B
            [ASHOK BHAN AND DR. AR. LAKSHMANAN, JJ.]

          Partition-Partition deed executed between two brothers-Challenged
    as being sham, nominal and never acted upon by one brother after 58 years
    after death of other brother-Brothers continuing business jointly and
C   staying together even after partition-Parties in exclusive possession and
    occupation of their respective shares and properties under the partition
    deed and dealing with them as independent owners and not as joint
    owners-Held, partition deed is complete, valid and effective and there is
    valid Partition.
D
         Practice and procedure-Jmpleadment-Death of appellant pending
    appeal-Legal heirs impleaded-Failure ofone ofthe legal heirs to engage
    counsel-Effect-Held, judgment binding on all parties including al/ legal
    heirs of deceased appellant.
E
         M and S were brothers who executed a partition deed, Ex.D-2,
    in the year 1914. Thereafter S, fathc:r of appellants, filed a suit for
    partition and possession in respect of Item Nos. 1, 2, 3 and 4 of plaint
    schedule properties after the death of M against his legal heirs alleging
    that the partition deed was sham, nominal and never acted upon.
F   Defendants filed written statement alleging that partition deed was
    acted upon and there was already a partition in the year 1914 in which
    Item No. 1 of plaint schedule property was allotted to their father, M,
    and that M and S dealt with properties allotted to them as independent
    owner and not as joint owners. Trial court decreed suit in respect of
G   Item Nos. 2, 3 and 4 but dismissed suit in respect of Item No. 1 of plaint
    schedule property. Appellants filed appeal against finding of Trial
    Court in respect of Item No. 1 property which was dismissed by the
    High Court. Hence, this appeal by the legal representatives of S.
    During the pendency of appeal, appellant No. 1 expired and his legal
H   heirs were brought on record.
                                       638
                      AZEEZ SAIT v. AMAN BAI                        639

     Appellants contended that partition in the year 1914 is sham and A
nominal and properties continued to be joint properties belonging to
the two brothers; that Hig~ Court failed to consider many crucial
documents and without considering evidence that all the properties
were mortgaged, purchased and sold jointly by both the brothers even
though they entered into partition deed in 1914; that parties are B
governed by Cutchi Menons Act, 1938 and the Courts below have not
rightly applied the principles of law in the matter of succession and
inheritance; and that notice of appeal may also be issued to one of the
legal heirs of appellant No.I who has not engaged any counsel.

     Respondents contended that concurrent finding of Courts below        C
on facts does not call for interference by this Court.

     Dismissing the appeal, the Court

      HELD: 1. The plaintiff, in fact; has accepted the rights under the D
partition deed and has acted upon its recitals. He has on his own
account sold the Bungalow that was allotted to him. The original
plaintiff has utilised the sale proceeds for himself and he has also
disposed of the site which was allotted to him under the said partition
deed. Therefore, the plaintiff/appellants are estopped from alleging E
that the partition deed was a nominal one and not intended to be acted
upon. The original plaintiff and M have dealt with the properties as
independent owners and never as joint owners. (641-E, F]

      2. The partition deed was executed in 1914. The suit was filed in
1972. Thus, the documents stood for 58 years till the suit was filed in F
1972 and accepted by all the parties including the late plaintiff himself.
A reading of the plaint would show that the plaintiff had never asked
for a share in Item No.1 during the life time of M and, the suit was
filed only after the death of M in 1967. It is also admitted by the
plaintiff that suit Item No. 1 was in possession of M during his life time. G
When the partition of 1914 has been accepted and acted upon by the
brother for all these years and had brought about an equitable
settlement of the distribution of the properties between them, the
plaintiff/appellants c~nnot now come round and say that the document
is sham and nominal. [642-A, B, D-EJ                                        H
    640                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A         3. The fact that the plaintiff and M even after the partition continued
    the business jointly, stayed together under the same roof for some time
    or the other and acquired properties out of their business in the names
    of either of them, cannot render Ex.D~2 a sham document. (647-B)

B         4. The entire evidence on record shows that the parties have been in
    possession and occupation of their respective shares and properties
    allotted under the partition deed and have dealt with the same. The
    partition deed is complete, dfectiveand'irrevocable. The said P!lrtition
    is valid and.effective and has vested in the plaintiff and M absolute and
C   ~nalterable right in the_properties under the said deed. (648-B, 645-E]

         5. The factum of partition and the deed of 1914 having been
    accepted, and in the absence of any evidence to destroy the validity of
    the partition deed the application of Hindu Law or Muslim Law would
D   not alter the findings in the case. [647-G)

          6. It is the duty of the legal representatives who have knowledge
    about the pending proceedings in t:-tis Court to engage the counsel. When
    they fail in engaging the counsel in spite of the knowledge of the pendency
    of the appeal, the said legal representative is responsible for his lapse. It
E   is held that this judgment is binding on all parties to the proceedings
    including the seven legal representative of appellant No. 1. (650-C]

         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3496 of
    1996.
F
         From the Judgment and Order dated 21.4.94 of the Kamataka High
    Court in R.F.A. No. 247 of 1982.

         N.D.B. Raju, Ms. Bharathi, R., Ms. Prema Kumari and Guntur
G   Prabhakar for the Appellants.

         P.R. Ramasesh, Ms. Vandana lnlan, Mrs. V.D. Khanna (NP) for the
    Respondents.

H         The Judgment of the Court was delivered by
                  AZEEZ SAIT v. AMAN BAI [DR. LAKSHMANAN, J.]                   641


.             DR. AR. LAKSHMANAN, J. : This appeal is directed against the A
        judgment and order date 21.4.1994 passed by High Court of Kamataka at
        Bangalore in R.F.A. No 247 of 1982 wherein the Division Bench of the
        High Court affirmed the judgment and decree of the Principal Civil Judge,
        Mysore. While dismissing the appeal filed by the appellants the Division
         Bench affirmed the judgment and decree date I 2.2. I 982 passed by the
                                                                                      B
        Principal Civil Judge, Mysore in O.S. No. 6911972 wherein the trial court
        decreed the suit for partition filed by the plaintiff in respect of Item Nos.
        2, 3 & 4 of plaint schedule properties and for possession in respect of Item
        Nos. 2, 3 and 4 and dismissed the suit in respect of Item No. I of plaint
         schedule properties.
                                                                                      c
             The brief facts for the purpose of filing this appeal in short are as
        follows :

             Late Sattar Abba Sait filed a suit for partition and separate possession
        of the plaint schedule properties into two equal shares and to put the
                                                                                       D

-       plaintiff in separate possession of his half share after dividing the schedule
        properties comprising of each property owned by the then joint family of
        Abba Sait.

             Defendants 1-4 filed written statements denying the plaint allegation.
        They stated that there was already a partition in 1914 between the two E
        brothers and denied the statement that Sattar Abba Sait was jointly enjoying
        the properties in question. They further stated that the said partition deed
        was acted upon as soon as the deed was entered into between the two
        brother and the plaintiff, that is, the father of the appellants herein accepted
        his share in the said partition deed and has acted upon the recitals. They F
        further stated that Mohd. Abba Sait and Sattar Abba Sait have dealt with
        the properties as independent owners and never as joint owners.

              The fifth defendant filed written statement stating that he is neither
        a mortgagee of the Ist item of the plaint schedule property or any other
        items of the suit properties and prayed for dismissal of the suit against him. G
        The sixth defendant filed written statement stating that she is the mortgagee
        of Item No. 1 of plaint schedule property. The plaintiffs replied to the
        written statement of defendants 1-4 reiterating the stand taken in the plaint
        and further stated that the properties mentioned in Item Nos. 1-5 are joint
        family properties and they are entitled for half share as the properties H
  ~


~
.....
    642                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A derived from Abba Sait and the plaintiff and the late Mohd. Abba Sait never
    acted ·upon the partition deed of 1914 and the same was formal by                ,._
    producing large number of documents which are produced before the High
    Court and also along with this appeal. The trial Court framed the necessary
    issues out of the pleadings. After framing the issues, the plaintiff was
B   examined as PW-I and the first appellant herein as PW-2. The defendants
    examined Abdul Rahman Sait, first defendant, as DW-1. The trial Court
    held that the plaint schedule Item No. I was purchased in the same of the
    plaintiff and suit Item No. 4 was purchased in the name of Mohd. Abba            (

    Sait.

c        The trial Court passed the judgment and decree as indicated in
    paragraph supra and decreed the suit.

          Aggrieved by the judgment and decree of the trial Court in regard
    to Item No.I, the appellants herein and their late mother filed R.F.A. No.
D   24 7/1982 before the High Court ofKamataka and raised several contentions
    contending that the Civil Judge has erred in not properly considering Exs.
    P-2 to P-12 produced by the plaintiff which go to show the manner in which
    the parties dealt with the properties even after the partition deed of 1914
    and that the Civil Judge has erred in not considering that the parties have
E   dealt with the properties as ifthe said Item No. 1 of plaint schedule property
    continued to be a joint property of late Mohd. Abba Sait and Sattar
    Abba Sait. It was further contended that the learned Civil Judge has
    failed to consider that as the business was continued, earlier debts had
    to be discharged and hence all the properties were sold subsequently
F   or alienated as evidenced as per Ex. P-5 to P-8 irrespective of the partition
    deed and hence the partition is sham and nominal and that it was not acted
    upon.

        Before the High Court, defendants 1-4 have not challenged the
  findings of the trial Court in regard to Item Nos. 2-4 of the property either
G by the way of separate appeal or by way of cross-objections. The
  defendants supported the findings of the trial Court in regard to Item No.
   I of plaint schedule property and contended that the property mentioned
  in Ex. D-2 came to the share of late Mohd. Abba Sait and the plaintiff and
  the properties in succession has come to defendants 1-4 and Item No. I
H was hypothecated by the two brothers and the plaintiff never took any
          AZEEZ SAIT v. AMAN BAI [DR. LAKSHMANAN, J.]                  643

interest in discharging the loans arid the entire loan was discharged by the A
legal heirs of late Mohd. Abba Sait as the property fell into their share as
per Ex. D-2 and they were continuously paying the taxes in respect of the
property in question.

      During the pendency of the appeal before the High Court, the mother B
of the appellant herein died. The first defendant also died and respondents
1-5 herein were brought on record as legal representatives of the deceased
- 1st defendant. On consideration of the entire evidence, the High Court
had no option but to reach the conclusion that the plaintiff/appellants and
his legal representatives have failed to establish that Ex D-2, partition deed,
as a sham and nominal document, that never intended to be acted upon.        c
The High Court accordingly, recorded its answer to the point holding that
the appellants have failed to establish that they are the joint owners of Item
No. I of the property along with defendant Nos. 1-4 and that they have
half share in it. The High Court has further held that the learned trial Judge
had rightly declined to grant decree in favour of the legal representatives D
of the appellant/plaintiffs in respect of Item No. I mentioned in the
Schedule forming part of the plaint and held that the decree in that regard
 is sound and flawless deserving affiramance. Aggrieved by the judgment
 and decree passed by the High Court in R.F.A. No. 247/1982, the appellant/
 plaintiffs preferred the ,above appeal.
                                                                             E
       The main controversy between the appellants and the Legal
representatives of the deceased Abba Sait in this appeal centres around the
property mentioned as Item No. I in the schedule forming part of the plaint.
It is a house property named as "Abba Manzi!", Abba Road, bounded on
the East by site of late Shri Chammaiah, by West Sattar Manzi! belonging F
to Dr. Sambashivan, North by lane, and Shakoor Manzi! by South Abba
Road consisting of vacant site as enclosed by the compound.

      Mr. NDB Raju, learned counsel appearing for the appellants submitted
that the High Court has failed to consider many crucial documents (Ex. G
P-1 to P-12) and without considering the evidence that all the properties
were mortgaged, purchased and sold jointly by both the brothers and in
all the transactions both the brothers put their signatures even though they
entered into in partition deed in 1914 which they never acted upon. He
further submitted that both the Courts failed to look into the contention put H
    644                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A forward by the appellants that the partition in the year 1914 is a sham and
    nominal and the properties continued to be the joint property belonging to
    two br<;>thers. According to the learned counsel for the appellants, the
    properties belong to. both the brothers and they have dealt with those
    properties and incurred debts and sold those properties. Learned counsel
B   also submitted that both the Courts have not rightly applied the principles
    of law in the matter of succession and inheritance in the present case as
    parties in the pres~nt case are Cutchi Memons and are governed by Cutchi
    Memon~ Act, 1938.


C         Concluding his arguments, learned counsel for the appellants submitted
    that both the Courts have erred in not passing the decree as prayed for
    in respect of Item No. l of plaint schedule and have erred in passing only
    a decree for partition only in respect of Item No. 2, 3 & 4 of the plaint
    schedule property and for possession in respect of Item Nos. 3 & 4 of the
    plaint schedule property.
D
        ,...Learned counsel appearing for the appellants, at the time of hearing,
    invited our attention to the pleadings, evidence, both oral and documentary
    and exhibits filed by both the parties.

E       Per contra, Mr. P.R. Ramasesh, learned counsel appearing for the
  respondents, submitted that the special leave petition/appeal does not
  involve any substantial question of law of public importance which
  requires to be considered by this Court and that the only issue involved
  in the appeal refers to one item of the property, a residential building
F known as Abba Manzil (Item No. l) of plaint schedule property which has
  been allotted to the share of the father of the defendant/respondents by way
  of partition deed in 1914. Learned counsel would further urge that the High
  Court as well as the trial Court has concurrently accepted the validity of
  the partition of 1914 on the basis of the admissions made by the plaintiff
  himself during the course of the depositions as well as all other material
G evidence on record and that has been acted upon admittedly. Thus it is
  submitted that the special leave petition gives rise only to a question of
  fact decided on appreciation of evidence concurrently held by both the
  Courts in favour of the defendant, therefore, does not call for interference
                                                                                    ..
  by this Court under Art 136 of the Con~titution of India. Learned counsel
H for the respondents have also invited our attention to the detailed discussion
          AZEEZ SAIT v. AMAN BAI [DR. LAKSHMANAN, J.]                    645

by the Courts below in regard to the various exhibits and the findings in A
regard to the various issues and, in particular issue Nos. 4&7.

      We have given our thoughtful consideration in regard to the
contentions raised by both the parties. We have perused the pleadings and
exhibits marked and, in particular, the partition deecr.- In our opinion, it is B
not correct to say that the original plantiff and Mohd. Sait effected a
nominal partition deed. The plaintiff, in fact, has accepted the rights under
the partition deed and has acted upon its recitals. He has on his own account
sold the Bungalow that was allotted to him known as 'Shukoor Manzi!'
to Mrs. Ganjami, w/o Mr. Abdul Rahim Ganjami. The original plaintiffhas C
utilised the sale proceeds for himself and he has also disposed of the site
which was allotted to him under the said partition deed. Therefore, in our
opinion, the plaintiff/appellants are estopped from alleging that the partition
deed was a nominal one and not intended to be acted upon. The original
plaintiff and Mohd. Sait have dealt with the properties as independent
owners and never as joint owners.                                               D
      The evidence adduced in this case would clearly disclose that the
original plaintiff and Mohd. Sait have dealt with the properties as
independent owners and never as joint owners. The partition dead, in our
view, is complete, effective and irrevocable. Even on the assumption that E
provisions of Hindu Law or Muslim Law are attracted as alleged by the
learned counsel for the appellants, the said partition is valid and effective
and has vested in the plaintiff and Mohd. Sait absolute and unalterable ri:.#
in the properties under the said deed.

       We have also perused the pleadings. It transpires from the pleadings F
that Item Nos. 3 & 4 and some other land situated at Malli-halli and Bannur
were purchased by Abba Sait and that Abba Manzi! and Item No. 2 were
purchased by Sattar Sait and Mohd. Abba Sait in addition to other
properties which are not the subject matter of the suit.
                                                                               G
      It was argued by the learned counsel for the appellants that if the
properties mentioned in Ex. D-2, Partition Deed, had really been allotted
to the share of the plaintiff and Mohd. Abba Sait and if the debt obtained
by Mohd. Abba Sait under Ex. P-12 in his individual capacity and for
himself, there was no need to include the two items of the properties H
    646                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A mentioned in Ex. D-2 allotted to the share of the plaintiff in Ex. P-12 and
  for the plaintiff to join Mohd. Abba Sait in execution of Ex. P-12. The
  argument appears to be atractive at its first flush. But on a deeper
  consideration of the evidence, it appears to be very facile and weak. In the
  first instance, the possibility of S. Channaiah having insisted the two
B properties allotted to the share of plaintiff under Ex. D-2 being included
  in the hypothecation deed as a security for the repayment of loan advanced
  by him to Mohd. Abba Sait and the plaintiff to join Mohd. Abba Sait to
  execute the deed in view of the fact that plaintiff and Mohd. Abba Sait were
  carrying on business jointly, living jointly and acquiring properties in their
C names out of the family business profits, is again a reasonable possibility
  that cannot be excluded. There is again the possibility of S. Channaiah to
  ensure complete security for the repayment of the loan, having asked
  Mohd. Abba Sait to hypothecate the two properties of his brother and of
  having compelled Mohd. Abba Sait to persuade the plaintiff to join the
  execution of the hypothecation deed, which cannot be dismissed as
D unacceptable. The subsequent conduct of Mohd. Abba Sait and his legal
  representatives in the matter of discharge ofhypothecation debt highlights
  the conclusion that the loan obtained under Ex. P-12 was by Mohd. Abba
  Sait for himself. As rightly pointed out by the High Court, clear evidence
  has come on record to show that Mohd. Abba Sait, during his life time,
E to discharge part of the hypothecation debt, sold his two sites in favour
                                                       1



  of S. Channaiah under Ex. P-7. To discharge the hypothecation debt, after
  his death, his legal representatives mortgaged a portion of Abba Manzil,
  Item No. 1, in favour of defendant No. 6 for Rs. 60,000 on 24.4.1970.
  Though the plaintiff was a party to the suit filed by S. Channaiah and in
F the execution taken out by Boraiah Basaviah and Sons, he did not
  contribute a single pie to discharge the decretal amount. That belies his
  claim that item No. 1, subsequent to 1914, was treated as a family property.
  It is also in evidence that the plaintiff himself built Shukoor Manzil in 1924
  and sold it in 1935 and that he sold the site allotted to him under Ex. D-
  2 in 1935 which would also show that the inclusion of the said two
G properties in Ex. P-12 did not constitute an impediment to dispose of the
  same as owner. It is also clear from the evidence that ever since 24.6.1914,
  Item No. l was in possession of Mohd. Abba Sait till his life time and after
  his death, his legal representatives have continued to remain in possession
  of the same, letting out a portion of it. There is unimpeachable evidence
H placed on record to show that for a long period between 1925-26 and 1967-
          AZEEZ SAIT v. AMAN BAI [DR. LAKSHMANAN, J.]                 647

68, it was Mohd. Abba Sait who was paying taxes levied in respect of Item A
No. I to the Municipality.

      In our opinion, the fact that the plaintiff and Mohd. Abba Sait even
after the partition continued the business jointly, stayed together under the
same roof for some time or the othe~ and acquired properties out of their B
business in the names of either of them, cannot render Ex. D-2 a sham
document. We have, therefore, no option but to reach the inevitable
conclusion that the plaintiff and his legal representatives have failed to
establish that Ex. D-2 is a sham and nominal document and it was not acted
upon.
                                                                            c
      As already noticed, the suit was contested by the respondents herein
on the basis that there was a partition in the year 1914 itself between the
brothers Sattar Abba Sait and Mohd. Abba Sait, that the partition was acted
upon and Abba Manzi!, Item No. 1, fell to the share of the defendants' s
father. The partition deed was executed in 1914. The suit was filed in 1972. D
Thus, the documents stood for 58 years till the suit was filed in 1972 and
accepted by all the parties including the late plaintiff himself. Sattar Abba
Sait, during the course of his evidence before the trial Court (page 29) of
Vol. II ,of.the app~al paper book), Qas accepted the partition deed of 1914
as well as the division of properties then. Shakoor Manzi!, another property E
which fell to the share of the plaintiff was sold by him as belonging to him
exclusively.

       Learned counsel appearing for the appellants contended that the
 parties are governed by the provisions of Cutchi Menons Act. We are of
 the view that the issue as to whether Hindu Law or Mohammedan Law F
 should be applied to the parties under suit is not really relevant and does
 not alter the situation because the partition had taken place in the year 1914
 as between the brothers. The factum of partition and the deed of 1914
 having been accepted, and in the absence of any evidence to destroy the
 validity of the partition deed the application of Hindu Law or Muslim Law G
 would not alter the findings in the case. When the partition of 1914 has
 been accepted and acted upon by the brother for all these years and had
 brought about an equitable settlement of the distribution of the properties
-between them, the plaintiff/appellants cannot now come round and say that
 the document is sham and nominal. A reading of the plaint would sho~ H
    648                SUPREME COURT REPORTS [2003) SUPP. 4 S.C.R.

A that the plaintiff had never asked for a share in 'Abba Manzil' during the
    life time of Mohd. Abba Sait, and the suit was filed only after death of
    Mohd. Abba Sait in 1967, it is also admitted by the plaintiff that suit Item
    No. I was in possession of Mohd. Abba Sait during his life time.
    Subsequently, defendants are in possession, of the same. The entire
B   evidence on record shows that the parties have ·been in possession and
    occupation of their respective shares and properties allotted under the
    partition deed and have dealt with the same. The trial Court as well as the
    High Court have accepted the partition of 1914 for the cogent and
    convincing reasons recorded thereunder. The appellants have not shown
C   any reason to interfere with the judgment of the High Court.

          The High Court, on a careful and meticulous examination,, has held
    that the appellant had failed to establish that he is the joint owner of Item
    No. I with Abba Sait and that he fs entitled to half share in it. Tu;;'~8ove
                                                             ..
                        •              . ( .· .    .                     • 1f
    finding deserves affiimance and we, therefore, affirm the'..sarne .
D
         During the pendency of the appeal, the appell~nt~A'zeez Sait died
    on 28.12.2001 leaving behind his legal representati~es who are as
    follows :

             I. Zubeda Bai          wife           widow          75
E
             2. Tasneem Bai         Daughter      married         52

             3. Adil Sait           Son            married        50

             4. Shehnaz Bai         Daughter       married        47
F
             5. Yasmeen Bai         Daughter       married        39

             6. Shaheena Bai        Daughter       married        36

             7. Tan veer Sait       Son            married        34
G '-
         The death ·certificate issued on 4.4.2002 by the Mysore City Corporation
    was filed as an Annexure along with the application for substitution oflegal
    representatives of late Azeez Sait Civil Appeal came up for hearing on
    6.8.2003. A rept~sentation was made on behalf of the appellant that ·
H   appellant No. 1 expired and, therefore, time was sought for filing the
          AZEEZ SAIT v. AMAN BAI {DR. LAKSHMANAN, J.]                   649
application for bringing heirs of the deceased appellant on record. By order A
dated 6.8.2003, this Court adjourned the matter for four weeks for the said
purpose. The&upon, the appellants filed the application for substitution on
8.9.2003 which again came up before this Court on 17.9.2003 for
directions with office report. This Court on the said date passed the
following order:                                                             B
         "Application for bringing on record the legal heirs of the deceased
         appellant No. 1 is allowed.

               At the request of the learned counsel for the appellants for
         filing vakalatnama on behalf of the legal representatives of C
         deceased appellant No. I, adjourned for two weeks."

       At the time of hearing on 7.10.2003, learned counsel for the appellant
  submitted that he has entered appearance on behalf of all the legal
  representatives except Adil Sait who refused to engage him for arguing the
  appeal on his behalf. Therefore, fresh notice may be ordered to him. We D
  are unable to countenance the said submission. A close scrutiny of the
  averment made in the application for substitution clearly shows that Adil
. Sait has knowledge of the pendency of the appeal. Paragraphs 5 to 8 of
  the application for substitution read thus.
                                                                               E
         "5. That the legal representatives were not aware of the case
         pending in Supreme Court. The case was fully handled and
         corresponded only by deceased Mr. Azeez Sait. Later on when the
         old papers were searched the petitioners got the correspondence
         of lawyer and case pending in the Supreme Court.
                                                                               F
          6. That two of the daughters also reside abroad and they also were
          to be appreciated to prosecute the appeal and as such the delay
          is caused.

          7. That the legal representatives were not aware of the procedure G
          of this Hon 'hie Court and there is some delay in filing the
          substitution application. And the same be condoned in the interest
          of justice.

          8. That the legal representatives are very much interested in
          prosecuting the appeal. Hence, the legal representatives be brought H
    650                 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A            on record and the appeal may be heard on merits."

          The application for substitution was ordered by this Com'l on the basis
    of the avennents made in the application and on the basis of the
    representative made by the counsel for the appellant on 17 .9 .2003.
    Therefore, we hold that all the legal representatives mentioned in the
B   application for substitution are aware of the proceedings and, therefore, it
    is upto them to engage or not to engage a counsel to argue the case to which
    they have knowledge. This apart, the estate of the deceased appellant is
    also represented by all other legal representatives. It is the duty of the legal
    representatives who have knowledge about the pending proceedings in this
C   Court to engage the counsel. When they fail in engaging the counsel in
    spite of the knowledge of the pendency of the appeal, the said legal
    representative is responsible for his lapse. We, therefore, hold that this
    judgment of ours is binding on all parties to the proceedings including the
    seven legal representative of Azeez Sait who died on 28.12.200 I.

         For the foregoing reasons, we have no hesitation to dismiss the
    appeal. Since the parties to this action are near relatives, we order no costs.

    A.K.T.                                                      Appeal dismissed

                                                                                       .