S.N. Dwivedi, J.
1. One Hanuman Prasad was the last mate owner of the house in dispute. Hanuman Prasad, as alleged by the plaintiff applicant, had executed two wills by which he devised the disputed property in favour of his widow Mohan Dei. Under the wills she was given a life interest in the property. Mohan Dei, transferred a portion of the disputed house to Jhau Laf, the opposite party in these cases, by means of a gift deed. Ram Gopal then instituted a suit in the court of the Munsif for a declaration that the gift deed in favour of Jhau Lal, not being justified by any legal necessity, was void on the death of Mohan Dei. He instituted the suit as the next presumptive reversicner of Hanuman Prasad. In the suit he impleaded Jhau Lal, the donee, and Mohan Dei, the donor, as defendants. The Munsif granted the declaration sought for. It may be mentioned here that Ram Gopal had also asked for a relief of possession, over the gifted property. The Munsif did not grant that relief. Ram Gopal, however, did not prefer an appeal against that part of the decree of the Munsif. Jhau Lal and-Mohan Dei jointly filed an appeal against the decree of the Munsif granting a declaration to Ram Gopal that on the death of Mohan Dei the gift deed executed by her would be void. During the pendency of the appeal, Mohan Dei died on September 27, 1955.
One Gur Prasad then made an application for being substituted in her place as a co-appellant of Jhau Lal. But before his application could be disposed of, he also died on March 2, 1957. Then two applications were made to the court for substitution, one by Ram Gopal and the other by Ram Lotan and Ram Shabad. They claimed to be substituted in place of Mohan Dei as co-appellant through the deceased Gur Prasad. The appellate court rejected the said two applications. It held that since Mohan Dei had gifted the property in suit to Jhau Lal, she was not a necessary party in the suit and that there could not accordingly arise any question of substitution in her place. It also held that the case was covered by the provisions of Rule 2, Order 22, of the C. P: C., and that the right to continue the appeal survived exclusively in Jhau Lal, the remaining appellant.
2. I have heard learned counsel for the applicants in the two cases, but I am not satisfied that there is any such error in the judgment of the appellate court which would persuade me to exercise, my powers under Section 115 C. P. C. Further, I agree with the appellate court that Mohan Dei was not a necessary party. In Banaras Bank Ltd. v. Bhagwandas, ILR (1946) All 891 : (AIR 1947 All 18), a Full Bench of our Court laid down two tests for deciding who is a necessary party. Those tests are; (1) that there must be a right to some relief against such party in respect of the matter involved in the proceedings in question, and (2) it should not be possible to pass an effective decree in the absence of such party. Although the judgment of our Court in that case was not sustained by the Supreme Court in Deputy Commr., Hardoi v. Rama Krishna Narain : AIR1953SC521 , their Lordships of the Supreme Court affirmed the criteria laid down by our Court for deciding whether a certain person was a necessary party. Testing the present applications on the touch-stone of the two tests formulated by this Court, it is obvious that Mohan Dei cannot be said to be a necessary party in the appeal. No relief could be claimed against her in respect of the portion of the house gifted by her to Jhau Lal. Again, an effective decree against Jhau Lal, who was in possession of the suit property, could be passed even in the absence of Mohan Dei or her heirs.
3. Learned counsel for Ram Gopal has relied upon the case of Poonam Chand v. Motilal AIR 1954 Raj 287. In that case one Motilal had sold some property to Gulab Das and from Gulab Das that property eventually passed on to the respondents. The plaintiff instituted a suit against the respondents, and Motilal for possession over the disputed property on the ground that the property in dispute, along with some other property, formerly belonged to him and Motilal as members of a joint Hindu family and that before Motilal transferred the property to Gulab Das, they had separated and that in the partition the property in dispute fell in the share of the plaintiff.
It appears that the suit was dismissed and thereupon the plaintiff preferred an appeal. During the pendency of the appeal Motilal died. An application for substituting some of his heirs was made within time. After the expiry of the period of limitation for substitution it was objected on behalf of the other respondents that the whole appeal had abated because some of the heirs of Motilal had not been brought on record within time. From the side of the appellant it was urged that Motilal was not a necessary party and that accordingly the appeal would not abate in the absence of his heirs. It was held that Motital was a necessary party because the foundation of Gulab Das's ownership in the suit property was a sale deed by Motilal. It was observed that that foundation, was being attacked by the plaintiff. It was accordingly held that Motilal was a necessary party to the suit. The decision of their Lordships of the Supreme Court, which I have already referred, was not cited before the learned Judges. In view of the Full Bench decision of this Court, and the decision of the Supreme Court, I am unable to follow, with respect, the decision of the Rajasthan High Court.
4. I, therefore, hold that Mohan Dei was not a necessary party to the appeal, and since she had gifted the property to Jhau Lal, the right to prosecute the appeal exclusively survived in Jhau Lal. There was no necessity of bringing in the heirs of Mohan Dei on the record.
5. The two revision applications are accordingly dismissed with costs.
6. The record of the lower court may now be sentdown to that court as early as possible.