BHAJAN JENA Vs. PANCHU JENA

JUDGEMENT

(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.) 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: