AMBIKA CHARAN CHAKRABARTI Vs. SASITARA DEBI

JUDGEMENT

(1.) This is an appeal by two of the defendants in a suit for partition of joint property. The property originally belonged to one Ramlochan Ganguly, who made a Testamentary disposition on the 5th November 1850. He left three sons--Tarini, Guru Charan and Ishan, and a grandson by a daughter, named Nilmoney. Tarini left two sons--Sasi Kumar and Basanta. The plaintiffs-respondents are the legal representatives of Sasi Kumar. The eighth and ninth defendants are the representatives of Basanta. The defendants-appellants have acquired the interest of Nilmoney in the portion of the property in dispute. The substantial question in controversy between the parties was, whether Nilmoney took a life-interest in the estate of his maternal grandfather, which terminated upon his death, or whether he took an absolute interest (subject to a condition which was fulfilled by him) which, upon his death, passed to his representatives. The Court of first instance decided in favour of the present appellants. That decree was assailed in appeal by the plaintiffs who claim by right of inheritance a half share of the interest which was vested in.Nilmoney during his life-time. The eighth and ninth defendants, who set up a precisely similar claim in the primary Court, were not joined as respondents, nor did they prefer an appeal on their own account. Upon the appeal of the plaintiffs, the District Judge has reversed the decision of the Subordinate Judge and has made a decree, not only in favour of the appellants before him, but also in favour of the two defendants who were not parties to that appeal. On the present appeal, the decree of the District Judge has been assailed on two grounds, namely, first, that it was not competent to him to vary the decree of the Court of first instance in favour of persons who were neither appellants nor respondents before him; and, secondly, that upon a true construction of the Will of the original proprietor, he should have affirmed the decision of the Subordinate Judge.

(2.) As regards the first ground, it is plain that neither Rule 4 nor Rule 20 of Order XLI of the Code is of any assistance to the respondents. Rule 4 is in these terms: Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any-ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants, may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. Consequently, to justify the application of this rule, it is essential that the appeal should have been preferred against the whole decree. In the case before us, the decree of the Court of first instance was assailed by the plaintiffs alone, and only to the extent that they were prejudicially affected thereby. Rule 20 is in these terms: "Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future date to be fixed by the Court and direct that such person be made a respondent.

(3.) This rule has obviously no application to this case, and the District Judge did not take action under it.