P.V. Balakrishna Rao, J.
1. The plaintiff is the appellant. He filed the suit for a declaration of his title to, and recovery of possession of, the suit properties. These properties were conveyed by his deceased brother to defendants 1 to 4 who are members of a joint Hindu family, defendants 1 to 3 being brothers and defendant 4 being their nephew. The sale deed was dated 22-1-49. The trial Court decreed the suit, but on appeal the suit was dismissed. Against that the plaintiff filed this Second Appeal
During the pendency of this appeal, respondent No. 3, one of the joint brothers, died and his legal representatives were not brought on record in time. An, application was filed after the time to substitute the legal representatives of the deceased respondent No. 3 along with a petition for condoning the delay in filing the application. By an order dated 17-9-57 the said petitions were rejected and an order was passed that the appeal abated as against the deceased respondent No. 3.
2. Mr. Chatterji, the learned counsel for the respondents takes a preliminary objection that in view of the appeal having abated against respondent No. 3, the entire appeal abated in toto against all the respondents. He contends that the sale deed Ext. D is the subject matter of attack by the plaintiff challenging its validity and that the sale deed was executed in favour of four members of a joint Hindu family. As such, he submits that the vendees are joint tenants and are in joint possession and so on account of the death of respondent No. 3 and his legal representatives not having been added and the appeal having abated against him, there is a decree of the lower appellate Court which has become final as far as respondent No. 3 is concerned holding that the sale deed is valid and the plaintiff is not entitled to recover possession of the properties and the legal representatives of the deceased respondent No. 3 continue to be in possession of the properties under the sale deed.
Therefore, in this appeal, if it is heard and if the plaintiff-appellant succeeds and obtains a decree, then as far as respondents 1, 2 and 4 are concerned, there will be a decree that the sale deed is invalid and they are not entitled to be in possession. In such a contingency, Mr. Chatterji submits, there will be two contradictory decrees which should not be allowed to come into existence. Therefore, the learned counsel contends that as the appeal has abated against respondent No. 3, the whole appeal is to be held to have abated.
3. For this position, Mr. Chatterji relies on a decision of a Division Bench of this Court in the case of Ananga Bhusan Samant Cinghar Mohapatra v. Uchhab Sahu, reported in 21 Cut LT 328: ((S) AIR 1955 Orissa 179) (A), in which it was held:
'The question whether the partial abatement leads to abatement of the entire appeal depends upon the general principles of law that if the absence of the legal representatives of the deceased respondent prevents the court from hearing the appeal, then the appeal abates in toto. Whether the appeal can or cannot proceed in such a case is dependent upon the principle whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same litigation with respect to the same subject matter, which the Court should avoid'.
That was a case in which defendants 1 to 6 in that suit purchased the properties from defendant No. 8 under a sale deed dated 18-12-43 which was a joint purchase by all the six defendants who were in possession of these properties. The suit was a suit for a declaration that the mortgage bond executed by defendant No. 9 was invalid and that the auction sale also was invalid and for recovery of possession. In the judgment which I delivered in that case with which my learned brother Narasimham J. (as he then was) agreed, I observed,
'There is already the decree of the trial Court declaring the mortgage bond valid and binding upon the plaintiff. That decree has become final as far as respondent No. 4 is concerned and if this appeal were to be heard and a finding arrived at that the mortgage bond is not valid and binding upon the plaintiff then it would certainly be a case of having two contradictory decrees which ought not to be allowed on principle. The prayer for possession or alternative relief is only a consequential prayer. Even if it is considered as a suit for possession there may be two contradictory decrees if the appeal is proceeded with. The purchase is a joint purchase, the shares are not defined and ascertainable and they are in joint possession of the properties.'
This decision, therefore, in my opinion, is a direct authority in support of Mr. Chatterji's contention.
4. Mr. Dasgupta, the learned counsel for the appellant strongly contended that though there is a decision quoted above to the effect that in such cases the entire appeal abates, yet by virtue of Section 45 of the Transfer of Property Act, the defendants should be taken as tenants in common. For this proposition, he relied upon the 2nd clause of Section 45 of the Transfer of Property Act which runs as follows:
'In the absence of evidence as to the interests in the fund to which they were respectively entitled or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property'.
On the strength of this clause, the learned counsel contends that the shares of the four defendants are ascertained or ascertainable and therefore there can be no joint tenancy or total abatement. The shares of the four vendees are ascertained or ascertainable and consequently the abatement of the appeal against one does not abate the appeal in toto.
He tried to distinguish the decision of this Court quoted above on the ground that in that case the principal question was regarding the validity or otherwise of a mortgage in execution of a decree on which the purchase in that case was made. But I do not think, that difference in any way affects the principle of the decision. The distinction which the learned counsel tries to make out is, in my opinion, a distinction without a difference. In that judgment, I considered also the effect of the second clause of Section 45 of the Transfer of Property Act now relied upon by Mr. Dasgupta and came to the conclusion that that provision did not in any way help the respondents therein.
After a review of the important decisions on the question it was held in that case that where the interest of the purchaser was separable, then in a suit declaring the invalidity of such a sale deed, death of one of the vendees and abatement of the appeal against him did not abate the appeal in toto. But that where the sale deed was in favour of persons in undefined shares, the death of one and the abatement against him abated the entire appeal.
As already pointed out, in the present appeal before me the vendees are four brothers and are members of a joint Hindu family. The sale deed does not recite that they purchased any defined shares. They cannot be said to have purchased any ascertainable shares as they are members of a joint Hindu family, in which case no member can predicate that he is entitled to a particular share. Respondent No. 3 having died and his legal representatives not having been brought on record, I am of opinion that the appeal has abated against all the respondents. I would accordingly dismiss the appeal with costs.
5. Leave to appeal is asked for and is granted.