1. Gokul, appellant, died on 27-3-1953. On 11-9-1953, Laturia appellant, put in an application under Order 22, Rules 3 and 9, alleging that he came to know of Gokul's death only towards the end of August 1953 and, therefore, the delay in bringing Gokul's legal representatives on the record was due to circumstances beyond his control. An affidavit was filed by Laturia in support of the application. A counter-affidavit was filed by Panchku, respondent, disputing the allegations made in Laturia's affidavit and further stating that Laturia was present in the village, when Gokul died and he also took part in his obsequies.
2. On 22-3-1954, an order was made by this Court, directing the learned District Judge, Mandi, to record the evidence of the parties on Laturia's application and affidavit and the counter-affidavit filed by Panchku and to forward the same to this Court with his report. In pursuance of this order, the learned District Judge has recorded the evidence of the parties. He has also submitted his report dated 5-8-1954, wherein, he has expressed his opinion that Laturia knew of Gokul's death on the very day it took place.
3. When this appeal came up for hearing on the 22nd instant, learned counsel for the appellant did not dispute the correctness of the learned District Judge's finding. He, however, argued that the appeal abated only partially, i.e., with reference to Gokul and further that the appeal could proceed as far as it concerned Laturia. Learned counsel for the respondents .1 to 4 argued, on the other hand, that since Gokul's legal representatives were' not brought on the record within the period of limitation, the appeal has abated in toto.
4. The first significant thing is that Laturia was aware of Gokul's death on the very day it took place. This finding has not been disputed by the surviving appellant. Therefore, the application under Order 22, Rules 3 and 9 was considerably belated. The. delay, under the circumstances, cannot be condon ed. So far as Gokul, appellant, is concerned, the appeal has already abated.
5. It, therefore, remains to be seen whether the appeal can now proceed as far as it concerns Laturia. Learned counsel for Laturia' argued that the relief claimed in this appeal was divisible between the two appellants and, therefore, Laturia's appeal can proceed in the absence of Gokul's 'legal representatives. In support of his arguments, learned counsel cited (a)--'Nanak v. Ahmad Ali', AIR 1946 Lah 399 (FB) (A). There, the facts were that two persons, N and K, jointly purchased a house from one G. Plaintiff, who was in possession of the house, brought a suit for declaration of his title to the house. The suit was decreed. N and K appealed from the decree. Subsequently, N died and his legal representatives were not brought on the record within limitation. The appeal abated as far as N was concerned. It was held by their Lordships of the Lahore High Court that K could proceed with the appeal. As learned counsel for the respondents pointed out, the facts of the present case are rather different. In the Lahore case, if K succeeded in appeal, the only effect would be that the declaration granted to the plaintiff against him would cease to operate but the declaration granted against N would stand. In the present case, as I shall show presently, the interests of Gokul and Laturia were indivisible.
(b) 'Rambharosey v. Mahadeo Singh', AIR 1953 All 64 (B). There, a single Judge of that High, Court observed, with reference to a case arising out of the U. P. Debt Redemption Act, that:
"That success of appeal might bring into effect two conflicting decrees is by itself hardly reason of ordering abatement."
(c) 'Chandu v. Garnbho', AIR 1954 Bilaspur 8 (C). This was a case of ejectment of trespassers. It was held by this Court:
"If in a suit for ejectment against trespassers, one of the defendants who has a certain share in possession dies, and his legal representatives are not brought on record within time, the suit does not abate as a whole."
6. In my opinion, none of the three rulings, cited above, is applicable to the facts of the present case. The facts of the present case are that one Lobbi, father of Panchku, sold the land in suit to Gokul and Laturia for a sum of Rs. 846/-. Panchku and his nephews filed a suit seeking a declaration that the sale was void and not binding on the joint Hindu family, because it was without legal necessity. In the alternative, they asked for a decree for pre-emption on payment of Rs. 846/-.
7. The suit was contested by Laturia and Gokul mainly on the ground that the sale in their favour had been effected on account of legal necessity. They also denied the plaintiffs' right to pre-empt.
Both the Courts below have found that the sale was without legal necessity. As learned counsel for the respondents has rightly pointed out, the sale was one and indivisible. As far as Gokul and his legal representatives are concerned, the decision of the learned District Judge has become final, i.e., to the effect that the sale effected by Lobhi was without legal necessity. In case the present appeal is heard and finally allowed, there would certainly be two inconsistent decrees in respect of the same transaction, i.e., while as far as Gokul, one of the co-vendees, the decision would be that the. sale was without legal necessity; in case of Laturia the decision will be just the opposite. This would lead to an impossible state of affairs.
In--'Ghulam Abbas v. Safdar Jah', AIR 1941 Oudh 219 (D), a Full Bench of that Chief Court observed:
"Where during the pendency of an appeal one of the respondents dies and his legal representatives are not brought on the record within the period provided by law, the question whether the appeal has or has not abated must depend upon the nature and circumstances of each case. The test in such cases should be (i) whether the' interest of the defendants in the suit are joint and indivisible so that the interest of the deceased cannot be separated from, those of the rest and (ii) whether in the event of the appeal being allowed as against the remaining respondents, there would or would not be two inconsistent and contradictory decrees in the same case with respect to the same subject-matter."
In--'Malobi v. Cans Mahomed', AIR 1949 Nag 91 (E), a Division Bench of that High Court also expressed themselves in the following terms:
"The failure to bring the legal representatives of a deceased party to a suit or an appeal operates as a partial abatement of the suit or appeal. The question whether the partial abatement Operates as an abatement of the entire appeal depends on the nature of the claim and the circumstances of each particular case. It will also depend on the nature of the decree appealed against and the relief claimed in appeal."
8. Judging by the above criteria, it seems to me that the appeal has abated in toto. As I have point-led out already, it is hardly possible to hold in the case of Laturia (assuming that his appeal is successful) that the sale in question was for legal necessity, while, as far as Gokul and his successors are concerned, the matter has been finally decided the other way. It is also noteworthy that the plaintiffs could not have instituted the suit against Laturia alone, i.e., without impleading Gokul as a defendant.
9. The result is: I hold that the appeal has abated in toto.
10. The appeal having abated in toto, it is hereby rejected. Considering that the appeal has been rejected on the ground of abatement and not on merits, I direct the appellant Laturia to pay half the costs of the respondents.