1. This appeal arises out of a suit brought by Mahanth Darshan Das for possession of certain property on the ground that it belonged to the math of which he had been duly elected Mahanth. The property in suit had been sold by one Musammat Subhagi to Gobind Rai and five, other persons. Musammat Subhagi's claim to the property was that it had been given to her by Sheoraj Das a former Mahant.
2. The Trial Court found that the property belonged to the math and should not have been transferred by Sheoraj Das but holding that plaintiff had failed to prove his own due election as Mahant dismissed his suit.
3. Darshan Das appealed and made Musammat Subhagi and all her transferees respondents. During the pendency of the appeal Gobind Rai died. No application was made to have his legal representatives made parties to the suit and no, notice was taken of his death in the lower Appellate Court.
4. The learned Judge found that Darshan Das had proved his title and decreed his suit against all the respondents including Gobind Rai.
5. Only one point has been argued in this Court. That is that the whole appeal had abated as against all the respondents and the decree of the Court below had become null and void.
6. Order XXII, Rule 4(3), provides that when no application is made to cause the representative of a deceased defendant to be made a party, the suit shall abate as against the deceased defendant, and Rule 11 of the same Order makes the order applicable to appeals.
7. The appellants' contention is that though the rule in question only provides that the appeal shall abate as against the deceased respondent, there are cases such as the present one in which it must abate as against all the respondents. The test is whether the result of leaving the decree to stand would be to have two inconsistent or contradictory decrees relating to the same subject-matter. Where the interest of the respondents can be distinguished and separated then the appeal will abate as against the deceased respondent only, but where no such determination is possible it must abate against them all. Several rulings of the Calcutta High Court have been cited in support of this proposition; in particular Sheikh Dendoo v. Shaikh Sachoo : AIR1924Cal399 , Sarat Kamini Dasi v. Chaitanya Chandra Prohoraj 67 Ind. Cas. 290; (1923) A.I.R. (C.) 289 and Kali Dayal Bhattacharjee v. Nagendra Nath Pakrashi 54 Ind. Cas. 822 : 30 C.L.J. 217 : 24 C.W.N. 44. In the present case the sale-deed is a joint one in favour of six defendants. If the present appeal is not allowed then there will be two decrees both of them final--under one of which the right of Gobind Rai to any part of the property in suit has been denied while in the other it has been allowed. At the same time it will be impossible for any body to ascertain without a suit for partition over what part of the property this right extends.
8. In my opinion this view is the correct one and must prevail. It has been taken by the Lahore High Court in Sirdari Lal v. Ram Lal 57 Ind. Cas. 199 : 1 L. 225 and the principle underlying it has been more than once affirmed by this Court in cases under Section 368 of the former Code of Civil Procedure e.g., Hem Kunwar v. Amba Prasad 22 A. 430; A.W.N. (1900) 136 : 9 Ind. Dec. (N.S.) 1324. In that Code the words 'as against the deceased defendant' did not find a place, but the Courts generally held that a distinction ought to be made between the case in which a suit on appeal could proceed in the absence of legal representatives and those in which it could not. It is clear that this is an instance of a case in which the absence of any representative of Gobind Rai makes it impossible that the lower Appellate Court's decree should be allowed to stand.
9. The appeal is allowed, the decree of the Court below is set aside and that of the Court of first instance restored. The appellants will get their costs in both Courts including in this Court fees on the higher scale.