1. This civil Revision application raises an interesting point of law as to whether an appeal in a suit for partition of joint Hindu family property abates by reason of the death of one of the appellants, pending the appeal. The genealogical tree of the family is to be found in the order of the learned Assistant Judge under revision, and the position as it emerges from it is that the three plaintiffs who are the sons of Rama would, between them, be entitled to a half-share and the first three defendants who are the sons of Gopal would between themselves, be entitled to the remaining half share in the joint family property, It may be mentioned that defendants Nos. 4 to 17 were joined as formal parties, as being co-shares in some of the suit properties. The three plaintiffs filed this suit as a suit for partition of the properties of the joint Hindu family claiming that, on such partition, they were entitled to a half share therein. The trial Court dismissed the suit o 20th April 1967. holding that there had already been a partition between the plaintiffs and defendants Nos. 1,2 and 3 in the year 1947. The plaintiffs field an appeal from that decision being civil Appeal No. 201 of 1967. In the District Court at Kolhapur on the 4th of June 1967. It appears that within a few days thereafter i.e., on the 18th of June 1967 the second plaintiff Dinkar died and his legal representatives were not brought on the record of proceedings to withdraw the appeal and the suit with liberty to file a fresh suit to which it is unnecessary to refer for the purpose of the present revision application, the present petitioners (defendants Nos. 1,2 and 3) filed an application on the 17th of September 1971 in the said appeal praying that, in view of the fact that legal representatives of the said Dinkar had not been brought on the record in time, the whole appeal had abated, and that the issue of abatement of the whole appeal should be tried as a preliminary issue therein. The Assistant Judge, Kolhapur, by his order dated 20th September 1971 held that the appeal had not abated in its entirely or even partially as in his opinion plaintiffs Nos. 1 and 3 in whom the right to sue survived were competent to represent the interest of the said Dinkar and to prosecute the appeal. It is from that order of the learned Assistant Judge that defendants Nos. 1,2 and 3 have applied to this court in Revision.
2. In the leading case of the state of Punjab V. Nathuram. : 2SCR636 . the Supreme Court has laid down (Para. 6) three tests for the purpose of determining the question whether an appeal between the appellants and the respondents, other than the deceased respondent, could be said to be property constituted or to have all necessary parties before the court. Those tests were 9a) whether the success of the appeal might lead to conflicting decisions. (b) whether the appellant could not have brought an action for the necessary relief against the surviving respondents alone; and (c) whether the decree against the surviving respondents would be ineffective and incapable of execution in the event of the appeal succeeding. In two later decisions in the cases of Sri Chand V. Jagdish Parshad AIR 1966 SC 1427 and Ramagra P. Gupta V. Murli Prasad, : 1SCR63 it has been clarified that the tests laid down in Nathuram's case cited above are not cumulative tests. and if any one of them is satisfied, the court may. having regard to all the circumstances, hold that the appeal had abated in its entirety.
3. To a suit for partition of properties of a joint Hindu family, it is not necessary to make all members of each branch of the joint family parties to the suit, but it is sufficient if the heads of all branches are impleaded in the suit (vide Mulla's Hindu law. 13th Edn. P. 386). In the present suit, the deceased Dinkar was, therefore, not a necessary party and Shankar as the head of Rama's branch could have filed this suit as a partition suit. In this connection, it is important to bear in mind that in the suit, as framed, the plaintiffs have not claimed partition of the half share of their branching the joint family property. Bearing in mind the nature of this suit, it would follows that the appeal field in the District Court in the present case can be continued by plaintiffs Nos. 1 and 3, who are appellants No. 1 and 3 could not have brought this suit as a suit for partition of the joint family properties, nor could it be said that the deceased Dinkar would be a necessary party to such a suit, that being the second of the three tests laid down by the Supreme Court in Nathuram's case, : 2SCR636 . The success of the appeal cannot lead to any conflicting decisions, or to a decree which would be ineffective or incapable of execution those being the remaining two tests laid down in that case.
4. I am fortified in this view by an old decision of a Division Bench of this Court in the case of Chintaman v. Gangabai ILR (1900) 27 Bom 284 in which the same conclusion was arrived at on the basis of Section 544 of the Code of Civil Procedure, 1882, which corresponded to O. 41 R. 4 of the present Code of Civil Procedure, 908, O. 41 R. 4 provides on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or defendants can appeal from the whole decree and, thereupon, the appellate Court can reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. The facts in Chintaman's case were similar to the facts of the present case. In that case, the suit was a suit for partition in which the trial Court had passed a decree in favour of the plaintiffs, and two of the defendants who had denied the plaintiff's right and claimed the property as their own, filed a joint appeal. Pending the appeal, one of them died and her representatives were not brought on the record. The surviving appellant, however, proceeded with the appeal and the lower appellate Court reversed the decree passed by the trial court and dismissed the plaintiff's suit. the plaintiffs filed a second appeal to the High Court and contended that the lower appellate Court ought not to have heard the appeal inasmuch as it had abated, or that at all event, the Court had no power to reverse the lower Court's decree so far as it related to the deceased appellant. The High Court held that, since the two defendants had appealed on grounds common to both of them, the lower Court had to power to hear the appeal and to deal with the whole suit under the provisions of Section 544 of the Code of Civil Procedure, 1882. The view taken by the divisions Bench in Chintaman's case is binding upon me and I respectfully agree with the same. Applying the law as laid down in the said case to the present case, it must be held that, even if the appeal has abated as far as the deceased Dinkar was concerned, the lower appellate Court had the right under order 41, Rule 4 of the Code of Civil Procedure to reverse or vary the decree in favour of all the appellants, if it was so minded. The order sought to be revised can, therefore, be sustained on the basis of Order 41, Rule 4 also.
5. In the result, this Revisions Petition fails and must be dismissed, and the Rule discharged, with costs.
6. Revisions dismissed.