SHRIPAD BALVANT KASTURE Vs. NAGU KUSHABA KATE

JUDGEMENT

(1.) A preliminary objection has been taken that this appeal has abated because appellant No.2 died on August 12, 1937, and a belated application by his sons to be brought on record was dismissed on March 5, 1941. Mr. Bakhale who appears for the respondent cites Vagha v. Manilal (1934) 37 Bom. L.R. 249 and argues that because the appellant-plaintiffs are joint owners they must all be parties to the appeal, and as the appeal has abated in the case of appellant No.2, it should be taken to have abated altogether. We think that there is no substance however in this point.

(2.) IT appears that the appellants sold all their rights to a third party, a vahivatdar of a temple at Satara, on July 31, 1936, after which they ceased to be interested in the property in dispute. The new; owner has been made appellant and permitted to proceed with the appeal by an order of this Court made on June 25, 1941. Mr. Bakhale has contended that this order should not have been made because the appeal had abated before that. IT is unnecessary to consider whether there is any substance in that argument because the case is clearly covered by O. XLI, Rule 4, of the Civil Procedure Code. The cases cited by Mr. Dharap, Chandrasang v. Khimabhai (1897) I.L.R. 22 Bom. 718 Chintaman v. Gangabai (1903) I.L.R. 27 Bom. 284, s.c. 5 Bom. L.R. 90 and Satulal Bhattacharjya v. Asiruddin Shaikh (1934) I.L.R. 61 Cal. 879, make it quite plain that the death of one of two joint owners during the pendency of an appeal does not prevent the appeal being prosecuted by the other. In fact there is no rule that all joint owners must be parties to appeals, although it has been held that they must be parties to suits.