THAKUR RAM JANKI Vs. JAGO SINGH

JUDGEMENT

(1.) THESE two appeals by two different sets of defendants arise out of the same judgment in a suit in which the plaintiffs, as nearest reversionary heirs of one Nathuni Singh, asked for declaration that twelve alienations of Immovable properties effected by Nathuni Singh's widow, Mst. Jagabati (defendant No. 54), in favour of defendants 2, 5, 9, father of defendants' 9 and 10, defendants 29, 38 and 53 and a deed of endowment in favour of Sri Thakur Ram Janki (defendant No. 21) through shebait, Bishnu Singh, were not for legal necessity and as such were not binding on the plaintiffs. The defendants can be divided for purpose of convenience into two groups - -one consisting of defendants 1 to 20 who, it was seated before us, belong to one joint Hindu family of which defendant No. 1 was the karta and the other group consisting of defendants 21 to 52.

(2.) A preliminary objection was raised on behalf of the plaintiffs respondents. Learned counsel for them contended that First Appeal 30 of 1956 is not maintainable and cannot be proceeded with in absence of the legal representatives of two of the defendants, namely, defendants 3 and 4 who died during the pendency of this appeal. According to their affidavit, defendant No. 3 died on the 26th January, 1959, leaving behind him as his heirs and legal representatives four sons (defendants 11 to 14) and his widow, Smt. Sansaria Devi, as also a daughter, Shriraati Rajkali Devi; and, defendant No. 4 died on 12th January, 1960, leaving behind him as his heirs and legal representatives his six sons, five of whom were defendants 15 to 19, a widow, Shrimati Saraswati Devi, and two daughters, Shrimati Kamli Devi and Shrimati Shobha Devi.

(3.) THE real point for consideration will be whether Rule 4 would be applicable in favour of the deceased defendants who did not join in the appeal either as appellants or respondents, so that their legal representatives may have the benefit of the appellate decree if that is in favour of the appellants. If the argument in support of the preliminary objection is accepted, Rule 4 will have to be excluded from operation in two situations - -(1) when appeal is filed by some defendants and some of the other defendants (who were neither appellants nor respondents in the appeal) die thereafter but before the hearing of the appeal, and (2) when some of the defendants died before the filing of the appeal and the appeal is filed by some (and not all) of the surviving defendants without impleading the legal representatives of the deceased as respondents.