1. This is an appeal by the plaintiff under the Letters Patent arising out of a suit for recovery of possession by avoiding a deed of gift executed by the last mahant in 1919 in favour of one Mt. Subhagi. Mt. Subhagi transferred the property gifted to her under a sale-deed dated the 15th October, 1919, in favour of defendants 2, 3, 5, 6 and the father of defendant 4. The Court of first instance dismissed the suit on the ground that the plaintiff had failed to prove that he was the mahant, though it found that the property was trust property and the transfer was invalid. On appeal to the District Judge the suit was decreed.
2. It, however, appears that before the appeal came on for hearing before the District Judge, Gobind Rai, one of the defendants-respondents, died leaving his son Ambica alive. No application for substitution was made, and in fact the attention of the Appellate Court was not drawn to the fact of his death at all. The appeal was allowed as against all the defendants-respondents.
3. On second appeal to the High Court a learned Judge of this Court held that the whole appeal had abated against all the respondents inasmuch as the heir of Gobind Rai had not been brought on the record. He accordingly restored the decree of the Court of first instance.
4. We may point out that the counsel for the parties apparently did not bring to the notice of the learned Judge the fact that under the sale-deed, dated the 15th October, 1919, there was a clear specification of the shares of some of the defendants. Bikramajit and Gobind Rai got half the share between them while Gokul Rai and Jamna Rai got one-fourth and Kedar Nath and Ram Dat Rai got the remaining one-fourth. When there was such a clear specification of the shares it is obivious that the appeal could not abate with regard to the interest of the last four persons mentioned for no one who was jointly interested with them in the shares purchased by them had died. Under Order 22, Rule 4(3) the suit abates as against the deceased defendant-respondent only. Had this matter been brought to the notice of the learned Judge we have no doubt that he would not have held that the whole appeal abated.
5. The question remains as to whether the omission to bring the heir of Gobind Rai on the record would make the appeal abate only with regard to the interest of Gobind Rai, whatever interest that may be, or whether it would abate with regard to the entire half share which was purchased by the two jointly. If it could have been shown that Bikramajit and Gobind Rai formed a joint Hindu family and that on the death of Gobind Rai Bikramajit succeeded as the manager of the family then the appeal might not even have abated with regard to this half share. This however, is not shown. On the other hand the fact that the other vendees who formed the other branches of the family had distinct and separate interests suggests that there has been a disintegration in the family. In the absence of any evidence to show that Bikramajit and Gobind Rai re-united after the separation of the other members we must assume that they were separate in status and that there was no right of survivorship inter se.
6. It cannot, however, be denied that under the sale-deed the two brothers jointly acquired a half share in the property. There was no specification as to the extent of their shares nor was there any recital as to the proportion in which they had contributed towards the sale consideration. In the absence of any such specification it must be assumed that each had a joint interest in the entire half which was allotted to the two. Thus Gobind Rai's son Ambica Rai being a joint owner of the half-share, has a right to contest the plaintiff's claim by saying that there was a decree of the First Court in favour of his deceased father and that the appellate Court's decree is not binding on him. If Ambica Rai is entitled to put forward such a plea with regard to the entire half share in which he has a joint interest the plaintiff cannot be allowed to have a decree against Bikramajit with respect to the same undivided half. Although the interests of the two may be distinct nevertheless they have a joint interest in the half share so long as the property remains undivided. The result of allowing the appeal against Bikramajit and at the same time leaving the decree in favour of Gobind Rai intact would be to allow two contradictory decrees to remain with regard to the same property. This, in our opinion, should not be allowed.
7. There is ample authority in support of the view which we have taken. The case of Sarat Kamini Dasi v. Chaitanya Chandra Prohoraj AIR 1923 Cal 289 is a direct authority in point. At p. 292 the learned Judges of the Calcutta High Court observed 'If the Court comes to the conclusion that the defendants are in possession of specific plots of land in which the deceased defendant had no share, it will proceed to try the case as against such of the defendants. But if, with respect to any plot of land the deceased defendant No. 20 was jointly concerned, the suit must be dismissed with respect to such plot.' The case of Shaikh Dendoo v. Shaikh Sachoo : AIR1924Cal399 was also a similar case where one of the defendants had died. It was there held that when his representatives were not brought on the record, the appeal abated in its entirety if the success of the appeal would result in two conflicting decisions with regard to the same subject-matter. In the case of Wajid Ali Khan v. Puran Singh : AIR1925All108 the learned Judges to whom the case had been referred remarked: 'When several persons have a joint interest in property, it is in general impossible to give a joint decree for possession against some of them when the decree declaring the right of the other joint holders to retain possession has become final, otherwise the result would be two contradictory decrees, both of equal authority.'
8. The Punjab Chief Court has adopted a similar view in the case of Khuda Bakhsh v. Mathra Dass (1913) 62 PR 1913 and also in the case of Hadu v. Lala AIR 1914 Lah 123.
9. We accordingly hold that the appeal before the District Judge had abated in respect of the half share purchased by Bikramajit and Gobind Rai jointly, but that it had not abated with regard to the remaining two shares of a quarter each.
10. We accordingly allow this appeal and modifying the decree of the learned Judge of this Court, decree the plaintiff's claim with regard to the two shares of a quarter each purchased by the defendants represented by Gokul Rai, Jamna Rai, Kedar Nath and Ram Dat Rai, but dismiss the suit with regard to the half share purchased by Bikramajit and Gobind Rai jointly.
11. As the fact of the specification of shares was not brought to the notice of the learned Judge and the appeal has succeeded only partially we direct that the parties should bear their own costs of the appeal in the High Court. As the plaintiff succeeded in the lower appellate Court on the merits and the defendant withheld the information as to the death of the deceased from the Court; apparently to prevent the plaintiffs from applying for substitution of names we direct that the plaintiffs should have his costs of both the Courts below.