I.D. Dua, J.
1. This is a revision under Section 115 of the code of Civil Procedure and is directed against the order of a learn-ed Subordinate Judge 1st Class, Delhi, dated 4th March, 1963, reviving a suit which had been stayed as far back as April, 1954, on account of some other suit for specific performance between the parties in which the question of partitioning the shares of the property in the present suit was also involved. That other suit was disposed of in November, 1961, and an application for the revival of the present suit and its decision on the merits was thereupon filed by the plaintiffs.
2. The defendants resisted that application and the pleadings gave rise to the following three issues:--
1. Whether the application for restoration is defective as alleged? If so, to what effect?
2. Whether the suit cannot be revived as per allegations in the reply?
3. Whether the suit has abated as alleged? If so, to what effect?
3. The first issue was not pressed in the Court below and does not concern this Court in the present proceedings either. Issues Nos. 2 and 3 were disposed of together. Here I may mention the circumstances which gave rise to these two issues.
4. Originally the suit was instituted by Pt. Gokal Dhish Bhargava son of Pt. Bhawani prasad Bhargava against Shri Jagat Dhish Bhargava son of Pt. Bhawani Prasad Bhargava, Shri Dhurulal Bhargava son of Pt. Kaushaldhish Bnargava, and Shri Umesh Kumar Bhargava minor son of Shri Kantilal Bhargava, for partition of the property mentioned in the plaint on the allegation that the sons of Pt. Bhawani Prasad Bhargava constituted a joint Hindu family governed by the Mitakshara Law and possessing considerable property; that in the year 1938-39 a partition had taken place between the sons of late Pt. Bhawani Prasad Bhargava but the house property mentioned therein remained joint with a defines 1/4th share of each branch of the sons of the deceased. A pedigree table was also reproduced in the plaint. This suit, it may be mentioned, was instituted in 1951. It appears that Pt. Gokal Dhish Bhargava died after the institution or the suit and Shri Chuni Lal, Shri Jawahar Lal and Shrimati Shanti Devi were impleaded as his legal representatives for prosecuting the suit. It is necessary to give the circumstance leading to these three persons being brought on the record because the learned counsel for the petitioner cased his arguments on this circumstance. On 2nd May, 1951, an application was filed by Pt. Chuni Lal, Pt. Jawanar Lal and Shrimati Shanti Devi widow of late Pt. Hira Lal, a pre-deceased son of Pt. Gokal Dhish Bhargava, under Order XXVII, Rule 3, Civil Procedure Code, claiming to be heirs and successors under Hindu Law though the property was described to be joint and Shri Chuni Lal Bhargava was described to be the Karta of the family being the eldest son of the deceased. This application was resisted by Shri Jagat Dhish Bhargava who put in his reply in September, 1951, expressly averring that Shri Chuni Lal Bhargava and Shri Jawahar Lal Bhargava were owners of ihe property by right of survivorship and tnat Shrimati Shanti Devi was not an heir of the deceased. The suit, according to this reply, had been instituted by Shri Gokal Dhish Bhargava on behalf of the joint Hindu family constituted by him with his sons. It was admitted, in agree, ment with the assertion of the three petitioners in the application under Order XXII, Rule 3 of the Code of Civil Procedure, that the property in suit was the Joint Hindu family property of the deceased and the first two applicants. In this view the petition under Order XXII, Rule 3, Civil Procedure Code, was alleged to be incompetent and, therefore, liable to be rejected. It was also pleaded that these three applicants were necessary parties to the suit in the very first Instance and having not Joined earlier they could not be added as parties to the suit at that stage and that they, according to the plea, could sue separately it so advised. On 16th October, 1951, It appears that Shri Jagat Dhish Bhargava gave up his objections with the result that application dated 2nd of May, 1951, was allowed.
5. As already mentioned, in 1954 the suit was stayed and after the disposal of the other suit the petition giving rise to this revision was filed for reviving the present suit. In the meantime, Shri Chuni Lal is said to have died in May, 1954, and apparently no application for bringing on record his legal representatives was filed. It is on this circumstance that the defendants resist the application for revival of the suit alleging that the suit has abated in toto.
6. Before me on revision the learned counsel for the petitioner has submitted that the Court below has exercised jurisdiction not vested in it by law by holding that the suit had not abated on account of application for bringing on record the legal representatives of Shri Chuni Lal Bhargava deceased having not been made till 1963, when admittedly Shri Chuni Lal Bhargava had died in May, 1954. In support of his contention he has, to begin with, cited Shivrajsingh v. Gaurishankar Baldeo Prasad, AIR 1961 Madh Pra 147. In that case a suit had been instituted for a declaration of title and for possession of some property. The Court of first instance passed a decree in favour of the plaintiffs and on appeal having teen preferred by some of the defendants one of them died. The other defendants applied to the Court under Order XXII, Rule 2, Civil Procedure Code, stating that they were the legal representatives of the deceased and were already on the record. The plaintiff-respondents objected that the deceased had left a surviving widow and a daughter and that in their absence the appeal could not proceed. This objection was upheld by the Additional District Judge and on second appeal by the defendants it was held by a learned Single Judge of the Gwalior Bench of the Madnya Pradesh High Court that the widow represented the deceased and that she was a necessary party. Without expressing any opinion on the correctness or otherwise of the precise decision, in my opinion, the ratio of that case is wholly inapplicable to the case in hand which is a suit for partition by a member of the joint Hindu family claiming to be its Karta. Besides, I am wholly unable to understand how the suit on behalf of Shri Jawahar Lal Bhargava cannot be held to survive and how it is possible to contend that merely on account of Shri Chuni Lal's death the Court should decline to revive the said suit.
7. The next authority on which Shri Sawhney has placed reliance is Lilawati Bai v. Gangadhar, AIR 1953 Nag 12. It was held there that Order XXII, Civil Procedure Code, is exhaustive of the manner in which the persons who die during the pendency of a suit or appeal can be represented by their heirs and legal representatives. There in a suit to declaration a decree was granted by the two Courts that the impugned proceedings would not bind the plaintiffs alter the death of the transferor. On second appeal by the defendants one of the defendants died and an application to bring on record his legal representatives was dismissed, being out of time. On these facts the appeal was held to abate in its entirety because otherwise it would lead to two contrary decrees. I am unable to understand how this decision is an authority for the proposition in the present case that the Court should decline to revive the suit on the ground that it was abated in toto. Lastly, reference has been made to Ramnath Ramanlal v. Ramgopal Bhaulal, AIR 1951 Nag 434. Head note on which reliance was placed is in the following words:--
'Where 'A' brings a suit for partition of property alleged to be joint, against 'B' and 'C', brothers who are in possession, and 'B' dies during the pendency of the appeal leaving a widow, B's interest in the joint family devolves on his widow and she is entitled to claim by partition the same interest which her husband had in the joint family and the estate of the deceased 'B' cannot during the life of his widow be represented by 'C' alone. Both the widow and 'C are the legal representatives of 'B' and the appellants failure to bring the widow on record within time results in the abatement of the appeal as a whole.'
8. Relying on the ratio of this case the learned counsel has very forcefully contended that Shri Chuni Lal Bhargava's legal representatives are necessary parties to the suit for partition. How whether or not they are necessary parties is not the precise question before me at this stage, for, this plea in support of the non-maintainability of the suit had not been urged in the Court below and cannot be raised before me on revision. That is a matter which, if permissible under the law, would be disposed of when raised and the question may have to be determined as to how far those persons can or cannot be made defendants to the suit. The question which falls for determination before me is: Has the suit on the facts and circumstances of this case abated in toto and, therefore, should not be revived? From what has been argued on behalf of the petitioner I have not been able to persuade myself to hold that the suit in the present case has abated in toto. A suit for partition can be filed by any co-sharer and on a decree for partition being granted every co-sharer is entitled to his share. As a matter of fact the decree has to declare the rights of the several parties interested in the property. From this point of view every party interested in the property may be considered to be a plaintiff even though not so arrayed. I am, however, unable to understand how in the presence of Shri Jawahar Lal Bhargava the suit can be held to have abated in toto merely because the heirs or legal representatives of Chuni Lal Bhargava are not made parties plaintiff.
9. Shri Sawhney has, however, contended that qua Shri Chuni Lal Bhargava's interest at least it must be held to have abated. The Court below has gone into this matter and has come to the conclusion that the suit originally brought by Shri Gokal Dhish Bhargava as a plaintiff cannot be held to have abated merely because Shri Chuni Lal Bhar-gava's legal representatives are not brought on the record within the prescribed period. The nature of the suit as originally filed, according to the Court below, died. The suit was in a representative capacity by the Karta and continues to retain its original character. In my opinion, this conclusion is not tainted by any material irregularity, and certainly there is no question of jurisdiction involved, with the result that I find no cogent ground for interfering with this conclusron under Section 115 of the Code of Civil Procedure. I have already observed that the effect of the absence of Chuni Lal Bhargava's heirs from the array of defendants has not been raised and, therefore, I need not advert to it.
10. Shri Sawhney at one stage argued that the order passed in October, 1951, bringing on record the legal representatives of Shri Gokai Dhish Bhargava showed that tne plea of joint Hindu family was negatived by the Court, for, Order XXII, Civil Procedure Code, is inapplicable to cases of survivorship under the law of joint Hindu family governed by the Mitakshara school. This contention, in my opinion, is untenable because the said order is not capable of this interpretation, and then Order XXII, Civil Procedure Code, cannot be held to be wholly inapplicable to the cases or survivorship: See Bishan Narain v. Om Parkash, AIR 1952 Punj 167.
11. For the foregoing reasons I see no ground for interference on revision with the result that this revision fails and is hereby dismissed with costs.