Daya Ram And Others vs Shyam Sundari

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 360 of 1962

Decision Date: 8 September 1964

Coram: N. Rajagopala Ayyangar, P.B. Gajendragadkar, J.C. Shah

In the case titled Daya Ram and Others versus Shyam Sundari, decided on 8 September 1964, the Supreme Court of India heard the matter before a bench consisting of Justice N Rajagopala Ayyangar, Chief Justice P B Gajendragadkar and Justice J C Shah. The judgment was recorded on 8 September 1964 and is reported in 1965 AIR 1049 as well as 1965 SCR (1) 231, with subsequent citations such as R 1966 SC 792 (517), R 1967 SC 49 (2, 3), RF 1971 SC 37 (5), R 1975 SC 733 (30, 32, 33), RF 1979 SC 1393 (29) and F 1989 SC 1589 (5). The suit involved a partition‑suit for equities between co‑owners and invoked Order XXII, Rules 4(1) and 4(3) of the Code of Civil Procedure, 1908, concerning the scope of practice and the duty of parties to bring legal representatives on record in order to complete the record.

The factual background set out that Har Charan, the father of the respondent Shyam Sundari, and his two brothers owned certain lands in common. After the death of Har Charan, his surviving brothers sold the entire parcel to the father of the appellants. Shyam Sundari subsequently instituted a suit claiming a decree for possession of a one‑third share in the property, alleging that Har Charan and his brothers had become separated in interest. Upon receiving notice of Shyam Sundari’s claim, the purchaser—who was the father of the appellants—carried out construction on the land pursuant to an agreement with the Improvement Trust. The trial court decreed in favour of Shyam Sundari, but in the execution of that decree it ordered that she should file a separate suit for partition so that her rights could be fully determined. In the subsequent partition suit, the trial court held, based on equitable considerations, that Shyam Sundari was entitled only to a monetary decree representing the value of her one‑third share, reasoning that the appellants’ father had already erected buildings on the land. The High Court, on appeal, reversed that decision, holding that because the buildings were completed with knowledge of Shyam Sundari’s claim, the appellants could not invoke any equity in their favour.

The decree was then challenged by an appeal to the Supreme Court. While the appeal was pending, Shyam Sundari died, and only some of her legal representatives were brought on record. The Court observed that the appellants had shown no lack of diligence or bona‑fides in making inquiries to determine the identity of the legal representatives. Accordingly, the Court held two propositions. First, the father of the appellants was deemed to be in the position of a trespasser who possessed notice of the claim of the true owner and therefore could not claim any special equity founded on his bona‑fide use and improvement of the common property, as reflected in paragraphs 237B‑D of the judgment. Second, under Order XXII, Rules 4(1) and 4(3) of the Civil Procedure Code, 1908, where a plaintiff or appellant, after a diligent and bona‑fide inquiry, ascertains the legal representatives of a deceased defendant or respondent and brings them on record within the statutory time limit, the suit or appeal does not abate even if other legal representatives remain unknown and unimpleaded, provided that those who were impleaded sufficiently represent the entire estate.

In the earlier part of the judgment the Court explained that once a decision is obtained against certain legal representatives, that decision binds the entire estate. However, the Court added that if, during the pendency of an appeal, the appellant discovers that some legal representatives have not been impleaded, the appellant, having become aware of this omission, is obligated to cause those remaining representatives to be brought on record. This principle was noted in the report at pages 240 F and 242 B. The Court then proceeded to review the relevant case law before turning to the present appeal. The appeal before the Civil Appellate Jurisdiction is Civil Appeal No. 360 of 1962, filed against the judgment and decree dated 26 February 1957 rendered by the Allahabad High Court in First Appeal No. 487 of 1945. Counsel for the appellants comprised the Advocate‑General of Punjab, S. K. Kapur, together with S. Murty and K. K. Jain, while the respondent was represented by G. N. Dikshit. The judgment was delivered by Justice Ayyangar.

This appeal arose from a certificate granted by the High Court of Allahabad under Article 133(1)(b) of the Constitution. The parties noted that the litigation had continued for more than forty years, involving the deceased respondent, Shyam Sundari, and Mata Din, the father of the appellants. To understand the point for consideration, the Court set out the pertinent facts. The father of the deceased respondent was Babu Har Charan Lal, who owned, together with his brothers Kanhaiya Lal and Sheo Narain, plots numbered 599 and 600 situated in Sisamau, Kanpur, upon which there were minor constructions. The three brothers held separate interests, each being entitled to one‑third share. Babu Har Charan Lal died in December 1915, leaving a widow, Tulsa Kunwar, and an only daughter, Shyam Sundari. Tulsa Kunwar died on 6 June 1919. Before her death, Kanhaiya Lal and Sheo Narain, asserting full ownership of the plots, sold them to Lala Mata Din, the appellants’ father, by two registered deeds for a total consideration of Rs 7,000, on the basis that each purchaser would receive a half share, thereby disregarding the rights of Tulsa Kunwar, who was not a party to the sale.

After Tulsa Kunwar’s death, Shyam Sundari, as the heir of her father, claimed her one‑third share in the property from the purchaser. Her claim was rejected, and consequently, in March 1922 she instituted suit No. 20 of 1922 before the Second Subordinate Judge, Kanpur, seeking recovery of possession of her one‑third share in the two plots. Before the filing of that suit, certain negotiations took place between Mata Din and the Kanpur Improvement Trust. An agreement was executed on 15 December 1921 between the Trust and Mata Din, stemming from these negotiations. The actions taken by Mata Din pursuant to that agreement were later relied upon by counsel for the appellant in support of the contentions raised in the present appeal.

In the appeal, the Court observed that the Kanpur Improvement Trust had initially proposed to acquire the two plots in question. Mata Din opposed that proposal, and as a result the Trust abandoned its plan. Consequently, on 15 December 1921, Mata Din entered into an agreement with the Improvement Trust whereby he consented to convey to the Trust a portion of land measuring 895.35 square yards free of cost in consideration for the betterment contribution. Under the same agreement, Mata Din also undertook to construct shops and houses on the remaining part of the premises in accordance with plans that had been approved by the Trust. The Court noted that the relevance of this agreement and of the constructions carried out by Mata Din pursuant to it would be examined later. The principal defence raised by Mata Din in suit 20 of 1922 was that Har Charan Lal had been joint in status and in interest with his two brothers, and that upon Har Charan Lal’s death without a male heir, the family property had passed to the surviving two brothers. The trial court accepted this defence, found against the plaintiff Shyam Sundari on the issue of inheritance, and dismissed her suit. Shyam Sundari appealed the decision to the High Court, and the learned Judges allowed her appeal, setting aside the trial‑court judgment.

During the hearing of the appeal, Mata Din asserted that he was entitled to compensation for the building he had erected, contending that he had made bona‑fide improvements to the property—namely the shops and houses he was required to construct under the agreement with the Improvement Trust—and relied on section 51 of the Transfer of Property Act to support his claim. The High Court, however, rejected this claim for compensation. The Court observed that the allegation of improvement had never been raised in Mata Din’s written statement, nor had any specific sum spent on the building been identified. Moreover, the Court found no evidence that any building existed on the land as of 1 December 1921, and could not accept that a building had been completed by that date. Since Mata Din had received notice of the plaintiff’s claim by March 1922, the Court held that proceeding with construction after such notice would have been a risky act for which he must bear the consequences. Consequently, the Court allowed Shyam Sundari’s appeal and granted her a decree for possession of a one‑third share of the plots specified in the plaint’s attached schedules. That decree later became final. When Shyam Sundari proceeded to enforce the decree, Mata Din raised further objections. After she obtained joint formal possession of her one‑third share under the executing Court’s orders, Mata Din filed an appeal to the High Court against the execution of the decree.

The learned Judges held that Shyam Sundari was not entitled, on the basis of the decree obtained in suit 20 of 1922, to any specific portion of the land. They explained that the decree gave her only a symbolic right to possess one‑third of plots 599 and 600, and that she was required to commence a separate suit for partition in order to have that right materialised. In accordance with this finding and the decree of the High Court, Shyam Sundari instituted the suit that gives rise to the present appeal, identified as suit 9 of 1939, against the present appellants who are the sons of Mata Din, who had died in 1933. The prayer in that suit was to determine her one‑third share of the lands and to have that share allotted to her; if any buildings stood on the allotted plot, the plaint asked that the buildings either be transferred to her or be demolished by the defendants. The suit also prayed that she be placed in possession of her determined one‑third share and further claimed the usual reliefs of mesne profits and costs. Several defences were raised, some of which were plainly frivolous, such as the contentions that the suit was barred by limitation, that it was barred by section 47 of the Civil Procedure Code, or that she had lost her title by adverse possession on the part of the defendants. The trial Judge dismissed those technical defences and held that her suit for ascertainment and possession of a one‑third share was maintainable. However, instead of granting her a decree that would allocate a one‑third share of the plots as she had obtained in suit 20 of 1922, the trial Judge awarded her a monetary decree of Rs 2,620, representing the monetary value of the one‑third share of the land. He also awarded a decree for Rs 2,000 as her share of the value of the materials present on the land at the date of its sale to Mata Din; that portion of the decree was later deleted by the High Court on appeal by the appellants and therefore does not form part of the present consideration. The claim for an in‑specie allotment of a one‑third share was rejected because Mata Din had constructed certain buildings on the land, and the Court held that allocating a one‑third share without disturbing those buildings was not feasible. Consequently, the Court concluded that the defendants, who are now the appellants, were entitled to the equity of requiring Shyam Sundari to sell her share to them, or in other words, to compel her to accept the monetary value of the land in lieu of a physical share.

Shyam Sundari appealed the decree of the trial Judge to the High Court. The High Court allowed the appeal and granted her a decree for a

In this case, the decree that the High Court had passed in favour of the respondent was recorded as follows: a preliminary decree for partition of the appellants’ one‑third share in plots numbered 599 and 600, covering an area of 1,122.99 square yards, was to be issued; the decree further directed that the appellant should be allotted, for her share, the portion of land on which the least valuable constructions stood; it also allowed the respondents to remove their constructions from the site allotted to the appellant’s share, and, in the event that they failed to do so, the appellant would be entitled to take possession of those constructions without any payment and would become their owner. The appellants contested the correctness of this partition and possession decree, even though they had earlier obtained a certificate of fitness from the High Court. The trial judge had based his reasoning on the premise that Mata Din had erected the constructions on the land because he was obliged to do so under an agreement with the Trust, and that he had acted as a co‑owner rather than as a trespasser; the judge further concluded that Mata Din had not acted dishonestly but had intended to preserve the disputed land for himself and his co‑owners against acquisition by the Trust. The judge added that, because Shyam Sundari had not asserted her title before the construction began, it would be inequitable to allow her to claim a share in the land on which the new structures stood. Moreover, the judge held that the court handling a partition suit possessed the jurisdiction to transfer co‑sharers’ interests at market value instead of physically dividing the property, and that, since dividing the property would require demolition of at least some of the constructions, the defendants were justified in seeking permission to purchase Shyam Sundari’s third share in the vacant portion of the land. When the High Court judges reviewed the trial judge’s order, they reversed it, holding that Mata Din’s acquisition of the property was not made in good faith. They noted that Mata Din had previously, in suit 20 of 1922, attempted to rely on section 51 of the Transfer of Property Act as a defence, but that his reliance had failed. The agreement with the Trust had been executed on 15 December 1921, whereas Shyam Sundari’s suit 20 of 1922 had been filed in March 1922; consequently, the judges observed that, irrespective of whether the constructions had begun before the suit was instituted, they were completed with knowledge of Shyam Sundari’s claim, a claim for which the courts now found Mata Din had no defence. The judges further stated that the agreement with the Trust could not legitimize Mata Din’s actions because the Trust could not lawfully contract with a person who was not the owner to erect buildings on another’s property, and that Mata Din should have informed the Trust of the claim immediately.

In this case, Mata Din had received notice that Shyam Sundari claimed only a two‑thirds share in the site, leaving a one‑third share to the plaintiff, yet he ignored that notice and completed the construction work, thereby disregarding Shyam Sundari’s claim. Because of this conduct, it was held that Mata Din and his heirs could not benefit from their own wrongful acts nor plead any equitable relief arising from those acts. Accordingly, the learned judges found no equity in favour of Mata Din and his heirs and therefore affirmed the decree that had been passed earlier in favour of Shyam Sundari, as extracted in the earlier part of the judgment. Counsel for the appellants attempted to rely on the Partition Act, but the argument could not succeed since the procedure adopted by the trial judge—namely the sale of the whole property—was not the method sanctioned by that enactment, which deals only with partition of property. The counsel further contended that when Mata Din entered into the agreement with the Improvement Trust, the interests of the co‑sharers were in jeopardy and at risk of total loss under the Land Acquisition Act; he asserted that the agreement saved the disputed property, was entered into in good faith, and that an equity could be claimed based on the constructions carried out pursuant to it. The Court found no substance in this line of reasoning. If the property had indeed been acquired under the Land Acquisition Act, compensation at market value together with the statutory solatium would have been payable, and Shyam Sundari would have been entitled to one‑third of that compensation. Thus there was no basis for Mata Din to claim that he had rescued anything for the co‑owners, nor could he rely on any equity arising from such a rescue. The Court also rejected the analogy that improvements made by co‑owners justified his claim, observing that Mata Din had acted as if he were the absolute owner, deliberately denying Shyam Sundari’s one‑third share. The equitable claim advanced by the appellant essentially rested on the principle contained in section 51 of the Transfer of Property Act; that provision had already been urged before the High Court in the appeal against the decree in suit 20 of 1922 and had been rejected for the reasons previously recorded, which clearly negated any assertion of bona‑fide conduct in the construction of the buildings. In view of these considerations, the learned judges were correctly justified in treating Mata Din’s acts as those of a trespasser who, despite having notice of the true owner’s claim, proceeded to erect structures on the land, and consequently he could claim no special equity based on any alleged good‑faith use or improvement.

In view of the appellant’s failure to act in good faith by putting the common property to use and by carrying out improvements upon it, the Court concluded that the decree issued by the High Court could not be successfully challenged and therefore the appeal was required to fail. Before reaching this final conclusion, the Court first addressed a preliminary objection raised by counsel for the respondent, who contended that the appeal had become extinguished and should be dismissed at the outset on that ground. The decree that gave rise to the appeal ordered the partition of the two plots numbered 599 and 600 situated in Sisamau, Kanpur and directed that a one‑third share of each plot be delivered in separate possession to Shyam Sundari; in the subsequent appeal filed by the heirs of Mata Din, Shyam Sundari appeared as the sole respondent. The High Court granted a certificate of fitness under Article 133(1)(b) on 13 September 1957 and formally admitted the appeal on 27 November 1957, after which, pursuant to the relevant provisions of the Civil Procedure Code, the appeal became pending before this Court. Shyam Sundari was reported to have died in April 1959, and the appellants then moved to implead her legal representatives. In the petition filed for that purpose, the appellants identified the deceased’s husband and four sons as her heirs and prayed that they be substituted as her legal representatives; the petition was granted and the substitution was effected. The substituted legal representatives entered their appearance, contested the appeal, and on their behalf raised the preliminary objection. In a statement of case filed in October 1962, they argued that the appeal had abated because a son, Kunwar Bahadur, and a daughter, Laxmibai, had not been recorded as legal representatives within the time prescribed by law. No allegation was made that the appellants had failed to conduct diligent and bona‑fide inquiries into the identity of the deceased’s legal representatives, nor that they acted with any fraudulent motive in omitting the son and daughter from the petition filed under Order 22, Rule 4 of the Civil Procedure Code. The issue for determination, therefore, was whether the omission, by an appellant who had impleaded the known heirs of the deceased respondent within the statutory period, of certain other heirs from the record amounts to an abatement of the appeal. The Court noted that the question, as framed in similar cases, is whether the estate of a deceased party is properly and sufficiently represented for the purpose of defending the appeal, and whether the law permits such representation even when some heirs are omitted without fraud or collusion. Before analysing this point, the Court indicated that it would be appropriate to refer to the authorities relied upon by counsel for the respondent.

The respondent’s counsel referred to two authorities in support of his argument, namely the Supreme Court decisions in The State of Punjab v. Nathu Ram and Ram Sarup v. Munshi. The first authority involved a dispute in which the Government of Punjab acquired certain parcels of land belonging to two brothers, identified as L and N. Both brothers refused to accept the compensation offered by the Government and consequently applied for the matter to be referred to arbitration under the Punjab Land Acquisition (Defence of India) Rules, 1943. An arbitral award was rendered in favour of the brothers. The Government appealed the award to the High Court. While the appeal was pending, one of the brothers died and no application was filed within the statutory period to bring the deceased brother’s legal representatives onto the record. The surviving brother raised a preliminary objection, contending that the appeal had abated because the legal representatives of the deceased brother had not been entered in time. The High Court accepted this objection and dismissed the entire appeal. The State of Punjab then appealed to this Court. The Supreme Court held that, where a joint decree is involved, the decree is indivisible; consequently, an appeal against one of the joint respondents cannot proceed and must be dismissed as a result of the abatement of the appeal against the deceased respondent, lest inconsistent decrees be issued. The Court observed that the brothers had filed a joint claim and obtained a joint, indivisible decree, and that the appeal challenging that decree was therefore dismissed. The Court’s decision was reported in [1962] 2 S.C.R. 636. The respondent’s counsel argued that this ruling supported his position, but the Court indicated that the relevance of this decision would be examined after considering the second authority.

The second authority cited by the respondent was the decision in Ram Sarup v. Munshi, reported in [1963] 3 S.C.R. 858. In that case a pre‑emption decree had been passed and the vendee‑appellants preferred an appeal against it. During the pendency of the appeal one of the appellants died, and his legal representatives were not brought onto the record. Because the decree was joint and, as a consequence of the abatement, had become final, the Court held that the entire appeal was deemed to have abated. The Court emphasized that the principle emerging from these cases – that a joint, indivisible decree results in the total abatement of an appeal when one of the joint parties is not represented – does not apply to the matter before it. The Court noted that the first decision involved a joint decree issued in favour of two individuals, and that it was undisputed that the appeal against one of the joint decree‑holders had been the subject of the High Court proceedings. This observation underscores the factual similarity between the two cited cases, but the Court indicated that the circumstances of the present appeal differ and therefore the cited principle cannot be extended to the present facts.

In the earlier case, the appeal had been declared abated because none of the deceased respondent’s legal representatives had been impleaded within the period prescribed by law. Consequently, there was no party on record who could represent the estate of the deceased respondent. In such a circumstance, the only issue that could arise was whether the abatement that had occurred with respect to one of the respondents should operate only partially—limited to the share of the deceased respondent whose appeal had abated—or whether it should cause the entire appeal to be abated. The answer to that question depended, as was evident, on the character of the decree and on the nature of the deceased’s interest in the property. If the decree was a joint and indivisible one, the logical result was that the abatement would be total. A similar question had been presented in Nathu Ram’s case, and the decision in Ram Sarup v. Munshi illustrated the same principle, which is why the Court had examined in detail the inter‑se interests of the vendees who had filed the appeal. The Court observed that, in the appeal presently before it, no question of partial versus total abatement arose. The present matter was completely different because the decree had been passed in favour of Shyam Sundari, and that decree formed the subject of the present appeal. The central issue was whether the appeal against Shyam Sundari had been abated. The heirs of Shyam Sundari had been impleaded within the time allowed by law, and the only remaining question was whether the failure to bring two of Shyam Sundari’s legal representatives on record rendered the appeal incompetent. That question turned on the correct construction of Order 22, Rule 4 of the Civil Procedure Code, which provides that when a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit; however, if within the time prescribed by law no such application is made, the suit shall abate as against the deceased defendant. The Court considered whether the legislature, by using the term “legal representatives,” intended that every single legal representative of a deceased defendant, when there are several, must be brought on record for the suit or appeal to be properly constituted, otherwise causing the proceeding to abate. The prevailing view of all the High Courts was that if a plaintiff or an appellant, after a diligent and bona‑fide inquiry, identifies the legal representatives of a deceased defendant or respondent and brings them on record within the statutory time limit, the suit or appeal does not abate.

In this case the Court explained that once a legal representative of a deceased defendant is duly entered on the record, that representative is deemed to sufficiently represent the entire estate for the purposes of the suit or appeal, and the decree issued in such proceedings will bind the whole estate, including those portions of the estate not specifically brought before the Court, provided that there is no fraud or collusion involved. The Court illustrated this principle by referring to an early decision of the Madras High Court in Kadir v. Muthukrishna Ayyar, reported in the 1902 volume of the Indian Law Reports, Madras Series, page 230. In that case the original defendant had died before the trial, and the Court had impleaded a person as his legal representative without any objection that the impleaded individual was not the sole representative and that other representatives also ought to have been joined. The Madras High Court observed: “In our opinion a person whom the plaintiff alleges to be the legal representative of the deceased defendant and whose name the Court enters on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit and, in the absence of any fraud or collusion, the decree passed in such suit will bind such estate. If this were not the law, it would, in no few cases, be practically impossible to secure a complete representation of a party dying pending a suit and it would be specially so in the case of a Muhammadan party and there can be no hardship in a provision of law by which a party dying during the pendency of a suit is fully represented for the purpose of the suit, but only for that purpose, by a person whose name is entered on the record in place of the deceased party under sections 365, 367 and 368 of the Civil Procedure Code, though such person may be only one of several legal representatives or may not be the true legal representative.” The Court held that this passage correctly stated the law. It noted that it was unnecessary to decide whether the principle would also apply when the person entered on the record was not the true legal representative. The Court further reasoned that when a genuine legal representative is brought on record, it is consistent with justice and established legal principles that, absent any fraud or collusion, the inclusion of that representative suffices to prevent the suit or appeal from abating. No authority was cited that would contradict this view, nor was there any rule of construction of Order 22, Rule 4, or any other law that would oppose it. This interpretation of the law had been approved and applied by Sulaiman, Acting Chief Justice, in Muhammad Zafaryab Khan v. Abdul Razzaq Khan, reported in the 1928 volume of the Indian Law Reports, All‑India Series, page 857. Similar rulings were noted from the Bombay High Court in Jehrabi Sadullakhan Mokasi v. Bismillabi Sadruddin Kaji (1924, AIR Bombay 420), from the Patna High Court in Lilo Sonar v. Jhagru Sahu (1924, I.L.R. Patna 853) and Shib Dutta Singh v. Sheikh Karim Bakhshi (1924, I.L.R. Patna 320), and from the Nagpur High Court in Abdul Baki v. R. D. Bansilal Abirchand Firm (1944, I.L.R. Nagpur 577). The Lahore High Court likewise accepted this view in Mst. Umrao Begum v. Rehmat Ilahi (1939, I.L.R. Lahore 433). Consequently, the Court was firmly of the opinion that the appeal in the present matter had not abated.

Bansilal Abirchand Firm, Nagpur (5) was cited, and the Court noted that the Lahore High Court had also accepted the same principle of law in the case of Mst. Umrao Begum v. Rehmat Ilahi (6). On that basis the Court stated that the appeal in the present matter had not abated. The Court then turned to the next issue, namely the consequence of the appellant’s failure to include two heirs of Shyam Sundari—a son and a daughter—who both possessed a recognised interest in the disputed property, and the significance of the fact that this omission was brought to the Court’s attention before the hearing of the appeal commenced. The Court referred to a series of earlier decisions, namely (1) (1928) I.L.R. 50 All. 857, (2) A.I.R. 1924 Bom. 420, (3) (1924) I.L.R. 3 Patna 853, (4) (1924) I.L.R. 4 Patna 320, (5) 1.I.L.R. [1944] Nag. 577, and (6) (1939) I.L.R. 20 Lahore 433, as well as other authorities, which collectively held that although an appeal may not be deemed abated, once the Court is made aware that certain legal representatives of a deceased respondent have not been placed on the record, the appellant becomes obligated to bring those representatives onto the record so that the appeal can be properly constituted. In other words, the Court explained that if the appellant were to succeed on the merits of the appeal, he would first be required to implead the omitted representatives, and consequently the proceeding would have to be adjourned in order to complete the record by adding the two legal representatives who had initially been left out. The Court acknowledged that this would have been the correct procedural step, but it also observed that the original suit from which the appeal arose had been filed in 1939 and remained pending for more than a quarter of a century. Considering the extraordinary delay, the Court concluded that unless it was convinced that the appellant possessed a viable claim on the merits, it was unnecessary to adjourn the hearing merely for the purpose of formally adding the omitted representatives. Accordingly, the Court proceeded to hear the appeal on its substantive merits. After examining the arguments and evidence, the Court was satisfied that the appellant’s case failed on the merits, and therefore it saw no justification for completing the record by adding the missing heirs. The Court consequently dismissed the appeal, ordered the appellant to pay costs, and entered a final order of dismissal.