P.N. Shinghal, J.
1. As this second appeal by some of the plaintiffs against the appellate judgment and decree of Civil Judge, Sirohi, dated August 22, 1961, must fail on a preliminary objection, it will be sufficient to state the important facts.
2. The suit house is situated in village Mundara, in the former 'Jagir' of Thakur Mod Singh. Plaintiffs Vijai Raj, his sons, brother and sister instituted the present suit for its possession and recovery of mesne profits on the ground that Thakur Mod Singh, father of Pratap Singh (defendant No. 9) had sold it on Bhadwa bad 6, Section 1996 (August 24, 1940) for Rs. 291/- and executed a 'patta' in favour of plaintiff Vijai Raj and his sons Hastimal, Pakhraj and Dan mal as well as Vijai Raj's father Himatmal. Plaintiff Vijai Raj was the Kamdar of the Thikana of Thakur Mod Singh, and the ''patta' in question is said to have been written in his 'bahi'. The suit house, according to the plaintiffs belonged to Jagirdar who had allowed Bhera (defendant No. 1) and his sons Chena (defendant No. 2) and Moti (defendant No. 3) to live in it as tenants, for which they executed a 'Kabuhyat' in favour of Jagirdar on Aug. 25, 1940. The plaintiffs alleged that Bhera, Chena and Moti were members of a joint Hindu family & that Behra, in his capacity as Karta, sold the suit house to Var-dhi Chand (defendant No. 4) &: his sons on September 27, 1955. The vendees took possession of the and house as they did not vacate it inspite of notice, the plaintiffs instituted their suit on August 5, 1959, for possession and mesne, profits as aforesaid.
3. Four written statements were filed on behalf of the defendants. A joint written statement was filed by defendants Bhera, Chena and Moti stating that the suit house was built by Bhera's father Uma, on land which was given by the Thikana on a kachha patta, and was in their possession all through so that they had a right to sell it to defendant Vardhi Chand and his sons. They denied the sale alleged by the plaintiffs. The plaintiffs' contention that Bhera and his sons Chena and Moti were Members of a joint Hindu family and Bhera was its Kirta, was also denied. Several other pleas were taken, bat it is not necessary to refer to them for purposes of the present controversy.
4. Vardhi Ghand, defendant No. 5, supported the written statement of defendants Bhera. Chena and Moti and traversed the claim of the plaintiffs. A separate written statement was filed by Vardhi Ghand's minor sons supporting the sale in Vardhi Ghand's favour Partap Singh, defendant No. 9, was impleaded as the son of Thakur Mod Singh and he supported the plaintiffs' claim.
5. Several issues were framed in the trial court, which decreed the suit by its judgment February 22, 1961, holding that the plaintiffs were entitled to get the suit land 'as distinguished from the structure built on it' from Vardhi Ghand and his sons. It was directed that the debris of the house belonged to Vardhi Ghind and his sans who could remove it. Costs were awarded against the judgment and decree by defendants Bhera, Ghena, Moti and Vardhi Ghand, and it was deposed of by the impugned judgment of Civil Judge, Sirohi dated August 28, 1961. That learned Judge held that there was valid sale in favour of the plaintiffs. He allowed the appeal and dismissed the suit with costs of both the courts.
6. The present second appeal was filed by plaintiff Vijai Raj and two his sons Pukhraj and Danmal on December 7, 1961. Moti, defendant Na 3, was not made a party to the appeal. This continued to be so until July 19, 1968 when an application was made by the learned Counsel for the appellants for impleading him as a respondent. Bhera, defendant No. 1, died during the pendency of the appeal and his legal representatives, including defendant Moti, were brought on the record by an order dated March 12, 1968. By the same order, the legal representatives of Bakhtawarmal, who was one of the plaintiffs and was arrayed as a respondent, were also brought on the record as he had died in the meantime.
7. Defendant Vardhi Chand's sons Kantilal (defendant No. 5) Jabar Ghand's (defndant No. 6), Ranjit Singh (defendant No. 7) and Suresh (defendant No. 8) were minors all through the litigation. But nothing was stated in the memorandum of appeal to show that this was so, and no action was taken for their representation by a guardian ad litem. An application was however, filed on August 18, 1962 for an amendment of the memorandum of appeal to correct the mistake. Another application was filed on September 10, 1963 stating that as Talib Hussain had been appointed by the trial court as the guardian ad litem of the minor defendants, a copy of the memorandum of appeal may be served on him. This Court ultimately made an order on July 15, 1968 that as Talib Hussain had not cared to appear inspite of notice, and as Mr. M.M. Vyas and Mr. H.N. Kalla, who represented the other respondents had no objection, Mr. H.N. Kalla may be appointed as the guardian of the minor respondents for purposes of the appeal.
8. A preliminary objection has now been raised both by Mr. Vyas Mr. Kalla that as Talib Hussain or any other person was not stated to be the guardian ad litem of the minor sons of the respondent Vardhi Chand in the memorandum of appeal, and as the omission was not rectified until after the expiry of the period of limitation, the appeal must be held to be incompetent and barred by limitation. The learned Counsel have relied on Tankeswar Das and Anr. v. Bhagwan Chandra Choudhury and Ors. A.I.R. 1968 Assam 61 in support of their objection.
9. I do not, however, find any force in the argument of the learned Counsel. When this Court disposed of the application of the appellants dated August 18, 1962 its by order dated July 16, 1968 as aforesaid, Mr Vyas and Mr. H.N. Kalla, who represented all respondents other than the minor sons of Vardhi Chand and Pratapsingh had no objection to the appointment of Mr. H.N. Kalla as the guardian of the minor sons of Vardhi Chand for purposes of this appeal. The order dated July 15, 1968 was therefore made with the to it consent of Mr. Vyas and Mr. Kail, and they cannot now turn round and raise a preliminary objection on a point which was waived by them long ago.
10. Even otherwise, I find no force in the argument that the appeal was incompetent or that it should be held barred by limitation only for the reason that an application for the guardian ad litem of Vardhichands minor sons was made on August 18, 1962 when the period of limitation for the filing of the appeal had expired. It is not the requirement of the law that an appeal which is filed within the period of limitation should be held to be incompetent or barred by limitation if no action is taken for the proper representation of the minor respondents until after the expiry of period of limitation. It is true that the validity of the proceedings against the minors depends on the appointment of their guardian, but this cannot be stretched to mean that if an appeal is filed without disclosing the fact that; some of the respondents are minors, or without securing their representation through a guardian ad litem, it will be barred by limitation. As in the case of a suit, the institution of an appeal is competent when it is filed and will save limitation even though it cannot make any substantial progress until a guardian is appointed to represent the minors. I am fortified in this view by the decision in Laxman Karan and Anr. v. Bansidhar 1960 All. L.J. 423. In that case also, an appeal was filed against a minor, but there was no guardian to act for him. An application was made for the appointment of the minor's guardian some three years after the institution of the appeal, and even though an objection was promptly taken that it was barred by limitation, it was held, on the basis of the decisions in Rup Chand v. Dasodha and Anr. I.L.R. 30 All. 55, Ali Yaquin v. Bhagwan Das and Ors. A.I.R. 1947 All. 357 and Rai Satyadevo Narayan Sinha and Ors. v. Tirbani Prasad and Ors. A.I.R. 1936 Patna 153, that where a guardian ad litem of the defendant-respondent was not made a party to an appeal filed by the plaintiff until after the period of limitation for filling the appeal had expired, the appeal could not, for that reason, he held to be barred by limitation. I am in respectful agreement with the view taken in Laxman Karan's case 1960 All. L.J. 423. I have gone through the decision in Tankeswar Dass's case A.I.R. 1968 Assam 61 but, If I may say so with respect, the learned Chief Justice arrived at his decision on the reasoning that where an appeal has been preferred against minors to get rid of a decree passed in their favour 'without the minors being represented by the guardian ad litem and the decree is reversed by the appellate court injustice and prejudice would be writ large in these proceedings and no further proof is really necessary to show that the minors interest must necessarily have been prejudiced.' The learned Chief Justice therefore arrived at his conclusion on considerations of injustice and prejudice, but it appears to me that question of validity of the decree is not really relevant, for even a decree obtained against a minor but is not represented through his guardian is a nullity, it cannot be held for that reason that an appeal filed within limitation, without providing for the representation of the minor by his guardian ad litem, would be barred by limitation. I do not therefore find any force in the first preliminary objection.
11. Mr. Vyas and Mr. Kalla have however raised another objection, which goes to the root of this case. They have pointed out that as Mati, defendant No. 3, was not impleaded in this appeal, within the period of limitation, it cannot be said to have been properly constituted and must be dismissed. It has been argued by the learned Counsel that as Moti was one of the three vendors in the sale which was made by him and his father Bhera defendant No. 1 and brother Chena defendant No. 2 on September 27, 1955, he was a proper party to the suit and as a decree was passed in his favour by the lower appellate court it could not be set aside in second appeal in his absence. It has been pointed out that while the appeal was filed in this Court on December 7, 1961, the application for impleading Moti as a respondent was filed long after the expiry of the period of limitation on July 19, 1968. The learned Counsel have placed reliance on Hardeva v. Ismail 1970 R.L.W. 316, and K. Raja Gopal Rao v. Dolgobinda Sahu and Anr. : AIR1959Ori31 in support of their argument.
12. On the other hand it has been argued by Mr. Mehta, learned Counsel for the plaintiffs-appellants, that as Bhera (defendant No. 1) was the father of Moti (defendant No. 3) and was the Karta of the joint Hindu family consisting of himself and his sons, it would not matter if Moti was left out altogether. According to the learned Counsel, the question whether Moti was necessary party to the appeal has to be examined on the basis of the decision of their Lordships of the Supreme Court in Dy. Commissioner, Hardoi v. Rama Krishna Narain and Ors. : AIR1953SC521 , and it is not permissible to put the controversy to any other test. The learned Counsel has also invited attention to the application dated July 19, 1968 in which it has been prayed that an order may be made by this Court impleading Moti as a respondent under the provisions of Rule 4, or Rule 20 or Rule 33 of Order 41 CPC, He has argued that, at any rate, this Court should do so in the exercise of its power under Section 151 C.P.C. For this last submission, he has placed reliance on the decision in Bishna and Ors. v. Sucha Singh A.I.R. 1934 Lah. 402 (2), Swaminatha Odayar v. T.S. Gopalaswami Odayar and Ors. A.I.R. 1937 Mad. 741 (11), United Provinces v. Mst. At-ga Bigam and Ors. A.I.R. 1941 F.U. 16 Jangirsingh and Ors. v. Mit Singh and Ors. A.I.R. 1955 Pep. 62, Notified Area Committee' Buria v. Gobind Rail Lachman Das and Ors. , Shamlal and Ors. v. Sultan and Ors. A.I.R. 1961 J. & K. 9, Shashi Bhushan Prasad Misra and Anr. v. Babuji Rai and Ors. A.I.R. 1970 S.C. 309. Mr. Mehta has gone on to argue further that Moti's father Bhera was quite capable of representing him in the appeal and that there is no reason why the doctrine of representation stated in Mahabir Prasad v. Jage Ram and Ors. A.I.R. 1971 S.C. 742 should not apply to a case like the present. The controversy therefore turns round the question whether appeal could be said to be properly constituted in the absence of Moti?
13. I shall start its examination by considering whether there was a joint Hindu family consisting of Moti and his father and whether Moti's father was its Karta. It will be recalled that it was specifically pleaded in the plaint (paragraph 4) that defendant Bhera, Chena and Moti were members of joint Hindu family and Bhera was its Karta The defendents, however, categorically denied that this was so, and stated (in paragraph 4 of their written statement) that they were not members of a joint Hindu family and that defendant Bhera was not its Karta. Then it was stated further that defendants chena and Moti were not bound by anything done by their father Bhera; that the suit house was constructed by their grand-father Uma and that they had a right to it by birth and were entitled to sell it. Defendant Vardhi Chand also took a similar line of defence in paragraph 4 of his written statements specific issue (No. 18) was framed by the trial court to determine the question whether Chena and Moti were liable for the claim in the suit. The issue was decided by the trial court against the defendants, that finding was specifically challenged in the memorandum of the first appeal. It was however not decided by court of first appeal, as it examined the controversy and dismissed the suit on other grounds. At any rate, as the controversy continues to persist on account of the pendency of the present second appeal, it cannot be said that the finding of the trial court on issue No. 18 has become final and conclusive between the parties. In other words, it is still permissible for the respondents to support the decree of the lower appellate court by showing why this Court should set aside the finding of the trial court on issue No. 18. It is therefore futile to contend that simply because issue No. 18 was decided by the trial court in favour of the plaintiffs, I should take the view that the omission of the name of Moti in the Memorandum of the appeal is a matter of no consequence in the presence of his father's name. More ever, it has to be remembered that it is the admitted case of the parties that there sale-deed dated September 27, 1955 was executed by Bhera (defendant No. 1) and his sons Chena (defendant No. 2) and Moti defendant No. 3) in favour of Virdhi Chand and his sons. The plaintiffs obtained a decree from ther trial court in their individual names, and not as members of a joint family, and the question of representation cannot therefore be said to subsist for that reason also. It was therefore necessary to implead the individual members of the family as respondents in the second appeal even if it is presumed that they were members of a joint Hindu family Reference in this connection may be made to Rajeshwari Prasad Singh and Ors. v. Sahebsingh and Ors. A.I.R. 1930 Patna 198 in which it has been held that if the appeal is given up against one of such n embers, it cannot be continued against the remainder.
14. I shall next examine the question whether Moti could be said to be a necessary party to. this appeal even though he was not a necessary party to the suit, on the basis of the tests laid down by their Lordships of the Supreme court in Deputy Commissioner, Hardoi v. Rama Krishna Narayan and Ors. : AIR1953SC521
15. I have gone through their Lordships' judgment Ramakrishana Narain's case : AIR1953SC521 on which considerable reliance has been placed by Mr. Mebta. In it their Lordships took notice of the following two tests enuciated by Pathak J. in Benaras Bank Ltd, Benaras v. Bhagwan Das and Ors. A.I.R. 1947 All. 18 for deciding whether a certain person was necessary party to a proceeding:
(1) that there mast be a right to some relief against such party in respect of the matter involved in the proceedings in question, and
(2) it should pot be possible to pass an effectived decree in absence of such party.
On reading the judgment of their Lordships, I find, however, that they did not state that the two tests enunciated by Pathak J., were of universal application or were exhaustive. On the other hand their Lordships held that those were the true tests for determining whether a person was a necessary party to certain proceedings, and I am unable to think that they meant to lay them down as the sole tests for application in all cases even in the case of an appeal where an objection was taken regarding its proper constitution on the grounds that the excluded respondent was no longer interested in its result after the expiry of the period of limitation and if the appeal was heard in his absence it might give rise to inconsistent or contradictory decrees. Many developments take place by the time a case reaches the second appellate court, and the question of proper constitution of such an appeal may in a given case, assume considerable importance if it can be shown that the excluded party had an interest or stake in the judgment and decree of the court of first appeal. An appeal against such a judgment & decree cannot therefore be heard & decided in its absence. It may be that the appellant in such a case may not have a right to some relief against the excluded party, and it may also be possible for him to obtain an effective decree in its absence but even so, the appeal may seriously involve the rights of the excluded party. The present is a case of that nature. It may not fail within the purview of the two tests approved by their Lordships of the Supreme Court, but its facts are such as to justify the argument against the proper constitution of the appeal en the ground that inconsistent or contradictory decrees would come into existence if it is heard and decided in the absence of defendant Moti.
16. As has been stated, the plaintiffs instituted their suit against nine defendants. They impleaded Bhera and his sons Chena and Moti as the first three defendants, in their capacity as the vendors of the suit house to Vardhi Chand. As has been held by a Full Bench of this Court in Hardeva v. Ismail 1970 R.L.W. 316, these vendors were proper parties to the suit. In fact out of the 19 issues which were framed by the trial court, issue Nos. 4, 6, 7, 12, 14 and 18 were meant to determine the rights and/or the liabilities of the first three defendants, including Moti, and evidence was recorded on them The trial court decreed the suit on February 28, 1961 to the extent mentioned above, and appeal was then preferred by defendants Bhera, Chena, Moti and Vardhi Chand. Thus the first appeal was raised not merely by Vardhi Chand (defendant No. 4), but also his vendors Bhera, Chena and Moti. It was allowed by the impugned judgment of Civil Judge, Sirohi, dated August 28, 1961 and the suit of the plaintiffs was dismissed altogether, with costs of both the courts. The court of first appeal thus upheld the sale which was made by defendants Bhera, Chena and Moti on September 27, 1955 in favour of Vardhi Chand and his sons. That judgment had the effect of rejecting the claim of the plaintiffs on the basis of the 'patta' which was obtained by them from the Jagirdar on August 24, 1940. The vendors of Vardhi Chand had therefore every reason to feel satisfied with the judgment and the consequent decree, for it set at rest all controversy in regard to the sale made by them on September 27, 1955 to Vardhi Chand and others. In fact it adjudged the rights and liabilities of Vardhi Ghand and his sons on the one hand, and their vendors Bhera, Ghena and Moti on the other. And that adjudication became final as against Moti by lapse of time. The plaintiffs now want a reversal of that judgment and decree, for they have preferred the present second appeal for that purpose. This, for reasons which are quite obvious, will give rise to the possibility that in case the appeal is allowed there will be one decree upholding the claim of the plaintiffs in the suit as against all the defendants other than defendant Moti, and another decree dismissing the claim in the suit altogether as against defendant Moti. In other words, there might be one decree dated August 21, 1961 upholding the sale dated September 27, 1955 and rejecting the sale dated August 24, 1910 and another decree (of the court of second appeal) setting aside the sale dated September 27, 1955 and upholding the sale dated August, 24, 1940. Such a possibility must always be avoided, and this is sufficient justification for taking the view that the appeal before me has not been properly constituted in the absence of Moti.
17. It has however been argued by Mr. Mehta that this Court should make an order for bringing defendant Moti on the record as a party respondent in pursuance of the appellant's application dated July 19, 1968. That application has been made, inter alia, under the provisions of Rules 4, 20 and 33 of Order 41 C.P.C. Mr. Mehta has frankly conceded that Rules 4 and 33 of Order 41 CPC are not really applicable, but he has strenuously urged that the provisions of Rule 20 should be invoked for impleading Moti as a respondent.
18. Now Rule 20 of Order 41 C.P.C. provides that where it appears to a court that any person who was a party to the suit but has not been made a party to the appeal, 'is interested in the result of the appeal', the court may direct that such a person may be made a respondent. An order under the rule can therefore be made only if it can be shown that the parson who was not made a party to the appeal was interested in its result It is well sett(sic) by the decision of their Lordships of the Privy Council in V.P.R.V. Choc-kalingsm Chetty v. Seethai Ache and Ors. A.I.R. 1927 P.C. 252 that a defendant against whom the suit has become barred by limitation, is not interested in the result of the appeal filed by the plaintiff against the other defendants. I have no hesitation, therefore, in holding that it is not possible for this Court to bring Moti on the record under Order 41 Rule 20 C.P.C.
19. The aforesaid application dated July 18, 1968 however makes a reference to Section 151 C.P.C also and this has given rise to the further argument of Mr. Mehta that Moti should be brought on the record as a respondent under the inherent powers of this court. I have already made a reference to the cases which have been cited in support of this argument.
20. The application dated July 19, 1968 was filed by Mr. S.N. Gurtu, learned Counsel for the appellants, along with his affidavit. It was followed by another affidavit of Mr. Gurtu dated August 22, 1968 an affidavit of typist Bhanwarlal. In his application Mr. Gurtu stated that it was never his intention not to make Moti a respondent to the second appeal and that he did not have any instruction not to make him a respondent so that he was left out by a typographical error. He stated further that Moti's name was left out because he failed to detect the error as the number of respondents was large. Nothing was stated in the application dated July 19, 1968 or its covering affidavit to show how the typing error occurred. It was however stated in the subsequent affidavit dated August 22, 1968 that Mr. Gurtu gave the certified copy of the judgment of the court of first appeal to Mr. Chhangani, who was the other advocate of the appellants, for getting its copies typed. Shri Chhangani got the copies typed and sent one copy to Mr. Gurtu for drafting the memorandum of appeal. Mr. Gurtu stated that he 'referred' the typed copy for underlining the important portions and writing short notes. He stated further that as that typed copy did not contain the name of the Moti son of Bhera, it was left out in the draft memorandum of the second appeal. The affidavit of typist Bhanwarlal was filed in support of this contention.
21. Mr. Gurtu stated in his affidavit dated August 22, 1968 that he was submitting the aforesaid typed copy of the judgment for the perusal of the court, but he has not done to as such a copy is not available on the record. More ever, nothing was said why the names of the parties were not checked with reference to the decree of the first appellate court which contained ' the parties including Moti. At any rate Mr. Gurtu was in possession of the certified copy of the judgment of the court of first appeal when he was engaged on behalf of the appellants and drafted the memorandum of appeal. He also had with him a copy of the decree. As the certified copy of the judgment and the decree were the most reliable and dependable documents for showing the parties, it cannot be said that Mr. Gurtu undertook the drafting of the appeal with the minimum care and attention when he did not even check names of the parties What is not done with due care and attention, cannot be said to have been done bonafide, and I am not persuaded that this is at all a case in which the provisions of Section 151 C.P.C. should be invoked to bring defendant Moti on the record when a right has accrued in his favour to rest on the judgment and decree of the court of first appeal.
22. I have gone through the cases cited by Mr. Mehta, but they were based on facts which were quite different. Thus in Bishna and Ors. v. Sucha Singh A.I.R. 1934 Lah. 402 (2), the name had been omitted from the heading of the attested copy of the judgment, and this was why its omission in the memorandum of appeal was held to be an oversight. Swaminatha Odayer v. T.S. Gopalaswami Odayar and Ors. A.I.R. 1937 Mad. 741 (11) was a case relating to partition of joint Hindu family property. The defendants there represented their sub-families. Their sons were formally brought on the record, but their existence was not recognised either in the whole conduct of the suit or in the decree apportioning the shares to each branch. It was therefore held that the sons were interested in the result of the appeal and should be added as parties under Order 41 Rule 20 C. P C. The rights or interests of third parties were not involved in that case and view taken in it was therefore based on different considerations altogether. United Provinces v. Mst. Atiqa Begum and Ors. A.I.R. 1941 F.U. 16 lays down that the language of Rule 20 of Order 41 is not exclusive or exhaustive so as to deprive a court of any inherent power which it may possess and exercise in special circumstances; but no special circumstance has been shown to exist in the present case. Jagir Singh and Ors. v. Mit Singh and Ors. A.I.R. 1955 Pep. 62 was a case in which the name of the plaintiff was left out by a bonafide mistake because of the sameness of the name with that of another plaintiff, and that was therefore a different case. Notified Area Committee, Buria v. GObind Ram Lachman Dass and Ors. A.I.R. 1959 Pun. 277 was a case in which the error lay on the part of the court or its official supplying an erroneous copy of the judgment, and the omission was held to be a bonafide and honest mistake Shan Lal and Ors. A.I.R. 1961 J. & K. 9 was again a case in which certain persons were not added as respondents to the appeal as the judgment and decree of the lower court did not mention their names. This leaves Shashibhushan Prasad Misra and Anr. v. Babuji Rai and Ors. A.I.R. 1970 S.C. 309 for consideration In that case the decree had not become final against the deity from whom the plaintiff claimed his title and obtained a settlement in his favour. In fact no relief was asked against the deity, so that there was no contest between it and the plaintiff and there was no possibility of there being two inconsistent or contradictory decrees even if the plaintiffs' appeal was allowed. The cases cited by Mr. Mehta were thus decided on different facts and can be of no avail to the appellants.
23. It has lastly been argued by Mr. Mehta that the doctrine of representation, which is made applicable to cease where appeals abate against one or the other respondents, should be made applicable to the present case also. He has placed reliance on Mahabir Prasad v. Jage Ram and Ors. : 3SCR301 in support of his argument. That was a case where one of the plaintiffs filed an appeal impleading the other plaintiffs as party-respondents, one of whom died during its pendency. The appellant applied that her name may be struck off, and this was done. Their Lordships upheld the maintainability of the appeal in view of those facts which were quite different from the facts of the present case.
24. As I have no doubt that the preliminary objection of Mr. Vyas that this second appeal must be dismissed as it has not been properly constituted is correct, the appeal fails is dismissed with costs. Leave to appeal is prayed for, but is refused.