Mahapatra, J.:— 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 immoveable properties effected by Nathuni Singh's widow, Mst. ??? (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 stated 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. First Appeal 25 of 1956 has been filed by the latter group (defendants 21 to 52). The other appeal namely, F.A 30 of 1956 has been filed by defendants 1, 2 and 5 to 10. The defence of all these defendants were three-fold:

(i) The plaintiffs are not the nearest reversionary heirs of Nathuni Singh who died leaving behind his widow, Mst. Jagabati, and a daughter Mst. Chanchalia Kuer. Chanchalia died leaving behind a son, Tarkeshwar Rai by name. Tarkeshwar was, therefore, the nearest reversionary heir in preference to the plaintiffs to the estate of Nathuni Singh.

(ii) All the transactions by the widow of Nathuni Singh were supported by legal necessity and were binding on the reversioners.

(iii) The plaintiffs have no cause of action.

3. Of these three, the real point in controversy between the parties during the trial was about the existence of Tarkeshwar and the legal necessity for the transfers of the immoveable properties by the widow. The trial court found that none of the transactions was supported by any legal necessity and that the plaintiffs were the nearest reversiorers of Nathuni Sing as Nathuni's daughter, Chanclialia, did not have any son born to her and Tarkeshwar set up by the defendants was an imposter in the sense that he was not the reversionary heir of Nathuni. On these findings, the plaintiff's suit was decreed and the declaration was granted to them as asked for in the plaint. Against this judgment, the present two appeals have been filed but not by all the defendants.

4. 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, Shrimati 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.

5. First Appeal 30/55 was filed in this court on 11th of January, 1956. The appellants took shelter under Rule 4 of Order 41 of the Code of Civil Procedure and contended that, as the decree appealed from proceeded on the ground common to all the defendants, any one of the defendants was competent to appeal from the whole decree and thereupon the appellate court may reverse or vary the decree in favour of all the defendants, although the defendants other than the appellants did not join the appeal either as appellants or respondents, yet the appellate court can vary the decree passed against in a manner as will be favourable to them as, in the present case, the decree of the trial court proceeded on grounds which were common to all the defendants. Non-existence of Tarkeshwar and want of legal necessity were the two common grounds on which the decree proceeded. In that view, it was urged for the appellants that the present appeal was maintainable and the preliminary objection had no force.

6. The plain tiff-respondents' argument is that Rule 4 has no application to the present case for two reasons — (i) that all the defendants, in whose favour the decree may be varied Under this rule are not alive at the time when the appellate court will pass the decree; and (ii) that, when there has been death of some defendants against whom the decree was passed by the trial court before the appeal was heard any of the other defendants could not take advantage of Rule 4 to appeal from the whole of the decree. They could appeal only as far as the decree touched them because their interest lay in the particular transactions which (were?) made in their favour by the widow. But that would result in inconsistent decrees and therefore that appeal must fail. We will have to see if these two grounds of the preliminary objections can be sustained.

7. Rule 4 reads as follows:

“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”.

8. Here, we shall proceed on the assumption that the decree proceeded on a ground common to all the defendants irrespective of the fact that the different defendants claimed interest under different title deeds executed in their favour. The common ground of attack against the plaintiff's suit was that the plaintiffs were not the nearest reversioners of the deceased Nathtin Singh and the decree negatived that plea and granted the declaration in favour of the plaintiffs after holding further that each of the transactions entered into by the widow in favour of different defendants was not supported by any legal necessity so as to make them binding against the reversioners.

9. The real point for consideration will is 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) the 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.

10. In other words, Rule 4 can be taken advantage of in favour of the non-appealing defendants only if all of them are alive at the hearing of the appeal. If any death occurring to any one of them is not brought to the notice of the appellate courts the appellate decree in favour of all the defendants would be liable to be set aside as a nullity. An appeal which was competent at the time of filing, in spite of omission to implead other defendants, would become incompetent on account of the death of any of the non-appealing defendants thereafter.

11. This, in my view, will lead to an absurd situation and that will be the main reason for discarding the argument of learned counsel 12 any of the defendants who decides to prefer an appeal is competent to file an appeal against the whole decree without impleading other defendants either as appellants or as respondents, he may do so, but then it is necessary for him to be of Vigil throughout the whole period of the continuance of the appeal and find cut at what point of time any of the excluded defendants dies. If this is necessary, what is the benefit conferred by Rule 4?

12. This rule creates a legal fiction in the sense that the appeal filed by some of the defendants will be deemed to be one on behalf of all the defendants and the benefit of the appeal may be extended in favour of the non-appealing defendants by the appellate court. This legal fiction has been created for the benefit of those who prefer the appeal as well as of those who are not parties to the appeal, for the reason that the ground of the decree against all of them was, common and the same is found otherwise by the appellate court. This benefit cannot be negatived by introducing a difficulty, which, from a practical point of view is insurmountable by the appealing defendants. As I have said above, the appealing defendants cannot possibly be expected, after filing their appeal in the court and before the appeal is heard and judgment is delivered, to be on their watch to find out if there has been any death of any of the non-appealing defendants. One has to be ??? about the parties to the suit of appeal but why shall one have the same obligation about other whose exclusion is sanctioned by law in particular; circumstances.

13. Learned counsel was not able to cite any decision in support of his contention that, in case of death of any of the defendants after the decree is passed against them but before the appeal is filed by some of the defendants, the legal representatives of the deceased defendant must be impleaded either as appellants or as respondents m, order to take advantage of Rule 4 in favour of the other non-appealing defendants.

14. In the present case, however, position is ???. Here, after the filing of the appeal and during its pendency, death of two of the non-appealing defendants took place. But to test the argument I was also considering the other possibility which is Bound to arise in case application of Rule 4 of Order 41 is ruled out for the death of any of the defendants after the trial court decree.

15. The specific point attempted to be made in support of the preliminary objection was that, as soon as defendants 3 and 4 died, their legal ??? should have been impleaded as respondents at the instance of the appellants. In absence of that, the appeal which was competent within the meaning of Rule 4 became invalid. If so not know which provision would have authorised the present appellants to ask this court to implead the legal representatives of defendants 3 and 4, who were not parties to the appeal either as appellants or as respondents, in this appeal. Order 41 Rule 20 is the only provision which empowers the Court at the time of hearing to ??? the hearing of the appeal to a future date and direct a person who has not been made a Party to the appeal to be made a respondent if it appears to the Court that any person who was a party to the suit in the court from whose decree aha appeal is preferred but who has not been made a party to the appeal, is interested in the result of the appeal. This provision is not intended to cover a situation as in the present case.

16. Order 22 of the Code of Civil Procedure provide for substitution of the heirs and legal representatives of a person who is already a party either in a suit or in the appeal. If defendants 3 and 4 were impleaded as respondents or as appellants in this appeal, undoubtedly order 22 would have been attracted and, faille of substitution of their legal representatives in their place and absence of an order setting aside the abatement, would have led the appeal to abate against these defendants, namely, defendants 3 and 4 and their heirs and legal representative. In that case, it would have been for consideration of the Court if the whole appeal would abate against all. When defendants 3 and 4 not being parties to the appeal died, the defendants appellants could not have invoked the aid of order 22 to implead the legal representatives of the deceased in the appeal as respondents.

17. Learned counsel was Dot able to point out any other provision under which such step could have been taken.

18. His main support was on the case of Ramphal Sahu v. Babu Satdeo Jha, AIR 1940 Pat 346 (FB). In that case, 4 mortgages were executed by the plaintiffs in favour of one person at different times for different amounts. Plaintiff No. 1 (mortgagor) sold 5 annas out of his 8 annas share in a particular village which had already been mortgaged, to 4 defendants in order to repay the mortgage debts previously created. A portion of the consideration money was left with the vendees to redeem the previous mortgage bonds. Some time after, plaintiff No. 1 in that case again sold another one anna out of his share to the previous four vendees and it was stipulated that the vendee would redeem the remaining mortgages out of the four previous mortgages. The vendees did not redeem two of the previous mortgages. In that circumstance, the plaintiffs brought a suit praying that the liability of the vendees would be assessed at Rs. 33070/- and odd and that they would be directed by the court to pay the previous mortgagees of the plaintiffs or to deposit in the name of the previous mortgagees the amount of Rs. 33070/- and odd and cause the mortgage bonds to be filed in court. In case of failure to pay the said debt in the manner indicatad above, the plaintiffs asked for a money decree against the vendees.

19. The trial court passed a decree in favour of the plaintiffs against all the four vendees All the vendees-defendants appealed against that. During the pendency of the appeal, one of them died and no steps were taken within the prescribed period to bring the names of his heirs or legal representatives on to the record. Later, an application was made to set aside the abatement but that was rejected by the appellate court.

20. The remaining three defendants proceeded with the appeal. At the time of hearing of the appeal, an objection was raised about the competency of the appeal and it was contended that the failure to bring on to the record the personal representatives of the deceased defendant appellant, the whole appeal had abated. To meet this objection, aid was sought of Order 41 Rule 4 of the Code.

21. The Bench which was hearing the appeal thought that the matter was of importance and formulated a question for reference to a large Bench. The question was in the following form:

“Has the appellate Court power to proceed with the hearing of an appeal and to reverse or vary the decree in favour of all the plaintiffs or defendants under Order 41, Rule 4 of the CPC, if all the plaintiffs or defendants appeal from the decree and one of them died and no substitution is effected within time and an application for setting aside the abatement, so far the deceased appellant is concerned, has been refused, always assuming that the decree appealed from proceeded on a ground common to all the plaintiffs or defendants?”

22. It is clear from this question that the premises were that all the defendants were parties to the appeal and one of them died during the pendency of the appeal, his heirs and legal representatives having not been substituted. This question was answered in the negative by the Full Bench.

23. It was held that O. 41, R. 4 cannot override or create an exception to O. 22, Rules 3 and 11 and in the case of one or more appellants dying even where a decree proceeds on a ground common to all, the matter must be governed solely by the provisions of those latter rules, that to hold otherwise is to hold that Order 41, Rule 4 of the CPC gives the Court power to set aside an abatement and to reverse or vary a decree which has become final against the deceased appellant; and that whether in such cirrcumstances the appeal has or has not abated as a whole will depend upon considerations other than the provisions of Order 41, Rule 4.

24. At one place in the judgment, their Lordships stated as follows after referring to a large number of cases in which two different views were taken:

“The cases to which I have referred are the principal cases dealing with the respective contentions of the parties in this case. In my judgment, the latter cases to which I have referred express the correct view. Order 22, Rr. 3 and 11 of the CPC, deal with cases in which one of a number of appellants, has died. By reason of the provisions of those Rules, the appeal in so far as it concerns the deceased appellant abates and as the abatement, if not set aside, has the force of a decree, the Matter becomes final as against the deceased appellant. In my judgment, there is nothing in O. 41, R. 4 of the CPC which permits the Court to disturb that finality of the decree as against the deceased appellant. To hold that O. 41, R. 4 of the CPC applies to a case such as the present one is to hold that a court can reverse or vary a decree in favour not only of a person who is not before the Court but in favour of a person which is no longer in existence. It appears to me that before a Court can vary a decree in favour of the representatives of the ‘deceased appellant’ (underlining (here in ‘ ’) is mine) such representatives must be brought on to the record”.

25. It is clear that what their Lordships decided was that, when any of the defendants who has already become an appellant dies during the pendency of the appeal, the appeal must be taken as abated against him if, on his death, his legal representatives are not brought on record and to such a case Rule 4 of Order 41 will have no application. Their Lordships did not go to the length of pointing that, where one of the defendants who could have been one of the appellants but did not join in the appeal nor was impleaded as a respondent and died after the appeal was filed, and his legal representatives were to be brought on record at the instance of the appellants and if they were not so brought on to the record, the appeal would be incompetent and advantage of Rule 4 could not be taken.

26. Learned counsel wanted to stretch the decision to this. But I am afraid it cannot be used to that length. It is true that at some place in that judgment their Lordships observed as follows:

“The word, ‘and thereupon the Appellate Court may reverse of vary the decree in favour all the plaintiffs or defendants, as the case may be in O. 41. R. 4 suggest that all the plaintiffs or defendants, are alive at the time when the decree of the appellate court is passed”.

27. From this, learned counsel wanted to argue that irrespective of the fact whether all the plaintiffs or the defendants, affected by the decree appealed from, were made parties to the appeal or not, they must be alive. On the date of the judgment of the appellate court so as to enable the court to vary the decree in favour of all of them. If any one of them is dead then his legal representatives would be outside the scope of the favourable order which the appellate court is empowered under Rule 4 to extend.

28. The main decision in that Full Bench case was couched in the language as I have quoted previously and all other observations were on the basis of the facts of that case. Their Lordships were. Only considering the position that, where a defendant who was appellant died and was not substituted by his legal representatives and the appeal had abated against him, whether Rule 4 of O. 41 could be applied. Their answer was in the negative as O. 22 in such cases was only applicable. I do not think that learned counsel can have any support from that decision for his contention that the present appeal is incompetent.

29. This Full Bench decision came for consideration by a Division Bench of this Court in the case of Balakrishna Patro v. Balu Subudhi, AIR 1949 Pat 184. The facts of that case were that 3 plaintiffs brought 3 suits for recovery of money deposited by them in a caste meeting on Condition that the money will be returned to them with some interest. The defendants, three in number, were appointed to arbitrate between the parties in connection with a partition of the family properties. The trial court held that the suit was not maintainable against those defendants as the entire body of the caste, which formed the meeting, where the money was deposited, was liable. But the district Judge held in appeal that under Section 43 of the Indian Contract Act, the three defendants were also joint promisers along with the other members of the caste meeting and in that view he decreed the plaintiffs' suit. There were appeals by the three defendants. One of the appellants during the pendency of the appeals died. There was no substitution of his heirs within 90 days.

30. The surviving appellants applied later on under Order 41, Rule 20 of the CPC, or under the inherent powers of the Court to bring the heirs of the deceased appellant on the record. When this matter came for consideration of this court it was held that in the circumstances of that case, as one of the appellants who was already on record, had died without his heirs being substituted within the prescribed time and the appeal had abated as against him, neither Rule 20 nor Rule 4 of Order 41 of the CPC was applicable. In that connection this Full Bench case was considered by their Lordships.

31. Mr. S.K Das, J. (as he then was) observed as follows:

“It was further pointed out (in that Full Bench case) that the wording of Order 41, Rule 4 of the CPC was not appropriate to a case where one of the plaintiffs or defendants appellants had died during the pendency of the appeal, and hence the appellate Court had no power to proceed with the hearing of an appeal and to reverse or vary the decree in favour of all the plaintiffs or defendants under O. 41, R. 4 if all the plaintiffs or defendants appeal from the decree and one of them dies and no substitution is effected within time and the application for setting aside the abatement, so far as the deceased appellant is concerned, has been refused, assuming that the decree appealed from proceeded on a ground common to all the plaintiffs or defendants”.

32. Similarly, the said Full Bench decision was referred to in another Division Bench decision of this Court in the case of Radhamohan v. Shreekrishna*, AIR 1948 Pat 460. In that case the defendant appellants had preferred an appeal and during the pendency of it one of the appellants died. Before the expiry of the limitation for an application for substitution, the remaining appellants filed an application saying that no substitution was necessary as the heir of the deceased was already on record and asked instead that the name of the deceased should be expunged from, the category of the appellants. That was allowed. The appellate court proceeded with the appeal thereafter. It was later found that as a matter of fact, all the heirs of the deceased appellant were not on record. Some of them were and others had not been brought on the record. The question before this Court was whether abatement arose, as the name of the deceased appellant had been expunged before the expiry of the period of limitation for substitution. It was held that the appellate court was competent to hear the appeal of the remaining defendants and to give relied either under R. 4 or Rule 33, Order 41 of the CPC, or both. The decree being a joint decree, the only relief that could be given was to set aside the decree as whole.

33. In that case the Full Bench decision was also brought for a consideration, on the contention that all the defendants must remain alive at the time of the hearing of the appeal, if Order 41, Rule 4 of the CPC is to be taken advantage of. This contention was repelled on the ground that the name of the deceased appellant having been removed under the orders of the court from the category of the appellant, he was not to be considered as an appellant and in that view the appeal by the remaining appellants was competent within the meaning of Order 41, Rule 4 of the CPC and the appellate court could give relief to the deceased defendant's legal representatives within the powers conferred under rules 4 and 33 of Order 41 of the Code.

34. Meredith, J., at one place of the judgment observed as follows:

“There remains Mr. B.N Rai's contention, hat a dead person is not a party at all, and, therefore there can be no decree against him or in his favour. With the greatest respect to the observations in ILR 19 Pat 870 : AIR 1940 Pat 346 (FB). I think no question of any decree against or in favour of a dead person ever arises. The proposition ‘there cannot be a decree against a dead person’ seems to me to rest on a confusion of thought. What we have in such a case is a decree against the legal representatives of such a person, who have not been brought on the record. But the existence of legal representatives of a dead person does not depend upon their being substituted in the record or impleaded. The well known expression ‘there cannot he a decree against a dead person’, if at all correct, really has its justification in the wider principle ‘there cannot be a decree against persons who have not been made parties’. The same considerations are not applicable where the decree is in favour of such persons. Once it is conceded that it is not necessary to implead the non-appealing party or his representatives as respondents, then, so far as I can see, it makes absolutely no difference whether there has been a death or not for if the legal representatives have not replaced the deceased in the little world of the Court they have done so in the world outside; and if a decree can be passed in favour of a man who has not been brought on the record, I see no reason why that cannot be done in favour of his legal representatives when he dies, without bringing them upon the record, and it ought to be done where refusal to do so will involve a great injustice to persons who have appealed as in the present case.”

35. This case is on all fours with the facts of the present case. After the deceased appellant was removed from the category of the appellant in that case, the position was that the appeal stood only as one filed by some of the defendants against the decree that had been passed against all the defendants on a common ground. In the present case before us, the position is like that. In both the cases one of the defendants who could have been an appellant or could have, been impleaded as a respondent, died before the hearing of the appeal. As that appeal in the case referred to above was held to be competent, so also the present case will be.

36. I shall also refer to another Full Bench decision of this court in the case of Mt. Parwati Kuer v. Manna Lal, (S) AIR 1956 Pat 414 (FB). The view taken by Meredith, J. for the earlier Full Bench case, AIR 1940 Pat 346 (FB), was considered there and no exception was taken about it. Their Lordships, however observed that it was not necessary, in view of the particular question canvassed before that Full Bench, to consider the correctness or otherwise of the view taken in the earlier Full Bench decision about the power of the appellate court to vary the decree in favour of deceased appellants whose heirs are not substituted.

37. In the later Full Bench decision the name of one of the appellants was expugned from the memorandum of appeal on account of a technical defect. The question arose if Rules 4 and 33 of Order 41 of the CPC would be applicable to such a case. It was held that both the rules read) together authorised an appeal to be filed by one of the defendants without impleading the other defendants as the respondents and if the appeal proceeds on a ground common to all the defendants, the appellate court may exercise its power in varying the decree in favour of the non-appealing defendants though they have not been made parties in the appeal. The effect of these two rules is that the appellate court is authorised to pass a decree in favour of a party who has not been heard but not to pass a decree against a person who is not a party to the appeal. Thus, the appellate court has power under the provisions of R. 4 read with Rule 33 of Order 41 to vary and reverse the decree granted by the trial court in favour of the dead defendant who is not either an appellant or respondent after his name is ordered to be expunged from the memorandum of appeal on account of a technical defect. There is no question of abatement in such a case. This supports the view I have taken in the present case.

38. Learned counsel in support of his preliminary objection referred us to another case, viz. Deonarain Singh v. Bibi Khatoon. AIR 1949 Pat 401. In that case the decree was passed against the karta of a joint Hindu family and his 5 sons and 3 grand sons. Execution of that decree was applied for against the karta and the three of his sons, the other two sons and the grand sons being omitted from the execution case. The property was brought to sale against which the karta preferred an appeal. That appeal was allowed. The question was whether Order 41, Rule 4 would apply and the appeal will be for the benefit of the other two sons and the three grandsons of the karta who had not been parties to the appeal itself. It was held that it would not be so because they were not parties to the execution case itself. The reason is very obvious. If they would have been parties to the execution case and if a decision was given against all the judgment debtors on a ground common to all of them and an appeal against them had been filed only by the karta it would have been covered by Rule 4 of Order 41. As the excluded judgment-debtors were not parties to the execution case, the orders passed in that case would not be said to have been passed against them also. In that view, their Lordships held that Rule 4 of Order 41 was not attracted for the benefit of those excluded judgment-debtors.

39. I do not understand how this case will give any assistance to the contention of the learned counsel. In the present case defendants 3 and 4 were admittedly parties in the suit itself and the decree was passed against them and that decree is under challenge in the present appeal.

40. The other case cited by learned counsel in this connection was Ambika Prasad Singh v. Thakur Prasad, AIR 1958 Pat 399. In that case one of the appellants (appellant No. I, Ambika Prasad Singh) died during the pendency of the first appeal in this court and an application for substitution of his three sons was made by the surviving appellants beyond the period of limitation. An objection being taken by the respondents to such an application on more than one ground, the matter was referred to the lower court for enquiry about the exact date of death of Ambika Singh and whether he had left any other legal representative apart from his three sons, for whose substitution an application was made in the High Court and whether Ambika's widow had relinquished her interest in favour of her sons. The report of the trial court was that Ambika had died on the 17th June, 1956, at 3 p.m and he left a widow, two daughters apart from the three sons and that the widow could not validly surrender her interest in favour of her sons without a registered document.

41. In view of this report, the application for substitution was rejected by an order of the Court. No opinion, however, was expressed as to what would be the effect of that order upon the fate of the appeal as a whole and that matter was left to be decided by the Bench at the time of the hearing of the appeal itself. A preliminary objection was taken at the time of the hearing of the appeal to the effect that the whole appeal had become incompetent by reason of the abatement of the appeal of Ambika. In that connection the application of Order 41, Rule 4 of the CPC was invoked by the other side.

42. It was held in that connection that there was no room for such an application because one of the appellants on record had died and he had not been substituted by his legal representatives according to the provisions of law. Such a case in the view of their Lordships did not give rise to the application of the provisions under Older 41, R. 4 or Order 41, R. 33. They referred to the Fi 11 Bench case reported in AIR 1940 Pat 346. That case is completely distinguishable from the present one for the simple reason that there is no case of death of a party to the appeal and as such there is no question of abatement within the meaning of O. 22 of the CPC.

43. The next case referred to was the case of Awadh Bihari Prasad v. Jhaman Mahton, AIR 1953 Pat 324. That case was cited to support the contention that if a person is not brought on record in his capacity as the karta representing the joint family but other members of the joint family are also impleaded along with him, on the death of one such persons, the question of abatement will arise if his heirs and legal representatives are not brought on record within the prescribed time and the plea that the presence of the karta will obviate that difficulty cannot be entertained.

44. This case has no bearing to the facts of the present case. Nobody wants to support this appeal on the basis that defendant No. 1 who is the karta of the family brought the appeal in a representative capacity, and, therefore, defendants 3 and 4 or after their death, their legal representatives are not necessary parties to the appeal. We are concerned with the provisions of Rides 4 and 33 of O. 41 on the basis that defendants 3 and 4 were some of the defendants who could have appealed, but did not join the appeal nor were they impleaded as respondents.

45. I should have referred earlier to the case of S.K Sarkar v. Sm. Malti Manjari*, ILR 30 Pat 847 : (AIR 1951 Pat 181) where another Division Bench of this Court considered the Full Bench case reported in AIR 1940 Pat 346 and the view taken by Meredith J. as to the meaning and implication of that Full Bench decision. Their Lordships accepted the said view of the case reported in AIR 1940 Pat 346, as I have indicated above. On a review or all these cases, I have no doubt left in my mind that the present appeal is competent to be proceeded with by the present appellants in spite of the fact that some of the defendants, against whom a decree was passed by the trial court on a common ground, were not impleaded either as appellant's or respondents and two of them, viz., defendants 3 and 4, have died and their legal representatives and heirs have not been brought on record of this appeal. The preliminary objection, therefore, fails.

46. I will now consider the me its of the appeal. As stated before, the appellants challenged the findings of the trial court about the ??? of Tarkeshwar as the nearest reversioner of deceased Nathuni Singh and the legal necessity in support of the transactions ettected by Nathuni's widow in favour of some of the defendants. (His Lordship reviewing the evidence proceeded). That is all the evidence given on the side of the defendants to support the existence of a son born of Chanchalia and the reasons given, above are sufficient to hold that their evidence does not establish that Learned counsel in he is connection referred to the case of T.S Murugesan Pillai v. M.D Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6, where their Lordships of the Judicial Committee said that a party to a litigation is bound to produce best written evidence. In his possession connected with the facts at issue in a case. If there is a failure in production of such a document, an inference against him shall be drawn. Learned counsel contended that in this case the best evidence which the plaintiff could produce was the birth and death register. They having not produced chat, an inference should be drawn against them this cannot be accepted. It is not suggested anywhere nor can it be suggested that the plaintiffs had in their possession such a register of birth and death. If there was such a register, it was equally available to the defendants to be called for and exhibited and proved in the case. Roth the parties have failed equally in that respect. As such, no adverse inference can be drawn from the non-production of that register against the plaintiffs alone. On the other hand, if any adverse inference is drawn, it should be against the defendants, because they pleaded a specific case to prove which they have failed to take steps to call for the register, which was possible for them to do.

47. If the plaintiffs are held to be the nearest reversioners of Nathuni Singh, they would succeed in the suit only if they establish want of legal necessity for any of the transactions entered into by the widow in favour of some of the defendants. The defendants in their written statements said that each such transaction was for sufficient legal necessity. There have been 13 deeds of transfer executed by the widow in favour of some of the defendants including a deed of Arpannama in favour of Sri Thakur Ram Jankiji. Two of these transfers were permanent leases. I shall deal with them separately. The learned counsel for the appellants confined his argument only to one of the sale deeds, dated the 7th May, 1945, executed by Mt. Jagabati Kuer, in favour of defendants 5 and 9 for Rs. 2234/- in respect of 2 bighas 9 kathas and 19½ dhurs, marked Ext B/4. (His Lordship considered the evidence in regard to the transactions and upheld the findings of the trial court. His Lordship then proceeded).

48. For the appellants it was, however, Urged that the two permanent leases executed by the widow on the 7th May, 1945 and the 31st July 1947, in favour of defendants 5 and 9 on payment of salami of Rs. 390/- in respect of 14 kathas and 8 dhurs and in favour of defendants 5, 6, 9 and 10 on payment of salami of Rs. 1900/- in respect of 1 bigha 3 kathas and 1 dhur respectively, cannot be invalidated even if the money raised by those two leases were not necessary for any legal necessity of the widow. It was contended that those transactions being leases, though permanent in character, left some interest in the widow in the immovable properties covered by those two deeds and the widow would be considered to be in possession of the same when the Hindu Succession Act of 1956 came into force. Under section 14 of that Act she acquired absolute right and title in respect of the same and the reversioners of Nathuni Singh cannot claim any interest in those properties even after the death of the widow.

49. These two leases have been marked as Exts. D. (Ext. 2.a) and D-(1)(2). The rent reserved in those two deeds were 8 annas and Re. 1 respectively inclusive of cess. There is no dispute that the word “possessed”, in section 14 of the Hindu Succession Act, 1956, is to be taken in wide sense and any constructive possession of a female Hindu will be covered by that. Learned counsel referred to the cases of Chandra Dip Rai v. Mahip Rai, 1959 BLJR 676 : (AIR 1960 Pat 112) and Harakh Singh v. Kailash Singh 1958 BLJR 545 : (AIR 1958 Pat 581) (FB).

50. In the latter case the court held that the word “possessed” should be broadly interpreted and would be taken to mean “any property owned by a female Hindu”. In that sense, learned counsel urged that in the case of a lease, even though it may be permanent in character, a lessor will have some interest in the immovable property and as such he or she owns it although in fact he or she will be entitled to receive only the rent. There may be a case of forfeiture and then the lessor will revert to the property.

51. He also referred to the case of Gummalapura Taggina Matada Kotturuswami v. Setra Veerawa, AIR 1959 SC 577. In that case a boy was said to have been adopted and it was asserted that the property belonging to the widow was in possession of that adopted boy. The adoption was found to be invalid. Their Lordships of the Supreme Court however, held that the property was really in permissive possession of the son and the mother must be regarded as being in constructive possession of it. The mother was deemed to be in possession through that alleged adopted son and in that view, section 14 of the Hindu Succession Act was brought to the benefit of the widow. The possession of the widow was considered in a legal sense. The observations of the Madras and the Calcutta High Courts in regard to liberal interpretation of the word “possessed” in section 14 were quoted.

52. According to the learned counsel for the appellants, Mst. Jagabati Kuer would be considered to be in possession of this lease-hold property although she had executed permanent leases in favour of some of the defendants, as stated above, and her right to them would mature to absolute title after the 17th June, 1956, when the Act came into force and the plaintiffs can have no claim, even if they are the nearest reversioners of Nathuni Singh.

53. Learned Counsel for the respondents opposed this by saying that in case of a permanent lease the lessor is not left with any interest whatsoever in the immovable property. The only right left with him is to receive rent. In the present case, the rent was also very nominal, viz. 8 annas and Re. 1 and that too inclusive of cess. For all practical purpose the two leases were absolute transfer. Learned counsel also referred to the case of Sonet Koocr v. Himmut Bahadur, ILR 1 Cal 391 (PC).

54. In that case the zamindar of Tekari had two Ranis and a Mohammadan concubine. He had no children dirough the Hindu Ranis, but he had some children, including a daughter born of the Mohamadan concubine. The zamindar gave a permanent lease to the daughter born of the Mohamadan concubine reserving to himself an annual rent of Rs. 301. But; the daughter died after which her mother (the Mohammadan concubine) came into possession of that property although she was not the heir of deceased daughter. She continued to pay rent which was accepted by the zamindar. After the death of the zamindar his two Ranis came to succeed tohis estate. The Mohammadan concubine also died some time thereafter, but her children continued to pay the rent to the zamindar's office and later on, leased that property to another Hindu person. When one of the Hindu widows of the zamindar died, the surviving widow brought a suit to recover that property. The High Court held that the plaintiff had failed to establish any tide to resume the mokarrari grant and therefore, without entering into questions involved in that case, dismissed the suit of the plaintiff with costs. The Judicial Committee on appeal observed as follows:

“The property no doubt, in this case, was a zamindari but the decision seems to establish the principle, that where there is a failure of heirs, the Crown by the general prerogative, will take the property by escheat, but will take it subject to any trusts or charges affecting it. There, therefore, seems to be nothing in the nature of the tenure which should prevent the Crown from so taking a rnokarrari, subject to the payment of the rent reserved upon it.”

55. It was argued before their Lordships that the lease not being an independent zamindari, but being carved out of a zamindari, stood upon a peculiar footing, and that upon the failure of heirs, the zamindar takes by right of reversion, or if not strictly by right of reversion, that the tenure escheats to him as the superior lord rather than to the Crown.

56. The entire case proceeded on the basis that after the death of the daughter through the Mohamadan concubine, the lessee (the mokarrari grantee), there was no heir to succeed to that lease-hold. In that sense it was for consideration of the Court whether the plaintiff or the Government could revert to that property by way of escheat. On that contention it was held that it was also an alienable interest even in a suit for rent. It could not have been forfeited for the non-payment of rent, for, in such a case, the zamindar could only have caused it to be seized, put up for sale, and sold to the highest bidder. It was, therefore, a property which might have passed to any purchaser whatever his nationality or by whatever law he was to be governed.

57. In the opinion of their Lordships it could not the successfully argued that having so passed, the estate would have determined upon the death of the daughter of the concubine without heirs, for, the grant contained no provision for the lessee of the estate created in such event. Therefore, in the opinion of their Lordships there was no ground for saying that the land reverted in the proper sense of the term to the zamindar. The question was whether, on the failure of the heirs of the last possessor, the zamindar was entitled to take a tenure subordinate to and carved out of his zamindari, by escheat. There was no authority for taking such a view and ultimately it was held that the decision of the High Court dismissing the plaintiff's suit was correct.

58. It is difficult to find how this decision can be utilised in support of the case of the plaintiffs here. In this case there is no question of failure of heirs of the lessee and as such it is not for consideration whether the granter or the Government will take. It by way of escheat. Lease has been defined in the Transfer of Property Act and no difference has been made between a permanent and a temporary lease. It is true that in the present case both the leases were by way of giving all interest except the nominal rent but still they were leases and notionally though, the lessor had still some interest in the immovable property involved therein. Section 109 of the Transfer of Property Act enables a lessor even in such a case to, effect a transfer of the property already leased. That indicates that he is left with some interest in the immovable property. In the present case, the properties covered by the two leases were agricultural land, but I do not know if the conditions of those leases were such as to exclude the operation of the Transfer of Property Act. Be that as it may, there cannot be any doubt that the lessor was still left with some interest in the immovable property and that would be sufficient to attract the provisions of section 14 of the Hindu Succession Act in favour of the widow, Mst. Jagabati Kuer, In that sense, the plaintiffs will have no case to contend about those properties.

59. Another case namely, the case of Nil-Madhan Sikdar v. Narattam Sikdar, ILR 17 Cal 826 was cited by the respondents about these two leases. One of the conditions in that case was that the lessee would not transfer in writing the land leased to him and that, if he did so, the sale would be void. The lessee, however, sold the land to the defendants of that suit in execution of a decree obtained against the lessee. In that case it was held that the condition was void under section 10 of the Transfer of Property Act, no right of reentry being reserved to the lessors by the lease. It was further held that the land having been sold against the will of the lessee by the act of a Court, the lessee could not be said to have voluntarily transferred his interest. Where a landlord granted a permanent and heritable tenure, he had no estate left in him unless he reserved to himself a right of re-entry or reversion. Learned Counsel very much relied upon the latter observation in support of his contention.

60. It was contended before their Lordships of the Judicial Committee during the argument that in case of occupancy raiyats, the landlord had always the right of re-entry when the raiyat abandoned the land leased to him. To repel that it was stated that the original lessee in that case was not an occupancy raiyat and the subject of the lease was not agricultural land. After saying that their Lordships proceeded to observe:

“Moreover, it seems doubtful whether, when a landlord grants a permanent and heritable tenure in land, he has any estate left in him, unless he reserves to himself a right of re-entry or reversion; for it has been held in the case of ILR 1 Cal 391 (PC) that in the case of the grant of an absolute hereditary mokarrari tenure it will, on failure of heirs of the lessee, escheat to the Crown, and will not revert to the original grantor or his heirs”.

61. This observation in its own context, in my opinion, cannot mean that there would be no interest left in the immovable property in the lessor in case of a permanent lease or a mokarrari grant.

62. For these reasons the widow's light in respect of those immovable properties covered by the two leases cannot be assailed.

63. Learned counsel for the appellants further contended that the deed of Arpannama in favour of defendant No. 21 Ramjankiji, was for the benefit of the soul of the deceased husband and the widow was competent to do so. Ext. 3 is the document. It is in respect of 1 bigha 16 kat-has and 9 ½ dhurs out of about 27 bighas, over which the widow came into possession, after the death of her husband. In the document it is written that the endowment was created for the betterment of the life of the executant in the next world. There was no reference to the soul of the deceased husband.

64. Defendant No. 21 did not file any written statement. The plaintiffs alleged in paragraph 13 of their plaint that the deed dated 3-12-45 in the name of Sri Thakur Ram Jankiji under the shebait-ship of Bishun Singh, defendant No. 21 was brought into existence fraudulently and fictitiously and the said property was in possession and occupation of defendants Nos. 2 and 46 and other members of their family. The widow had no right to execute that deed and Bishnu Singh was not the shebait of Thakur Shri Ram Jankiji. The allegation in the plaint that the deed was fradu-lently brought into existence meaning that it had not been given effect to and there was no shebaiti of that Thakurji to enjoy or manage that property was not denied in any written statement filed on behalf of the defendants. What is more surprising is that defendant 21 did not contest the suit by filing any written statement. No evidence was given that the deed was given effect to.

65. Those the assertion of the plaintiff that it was a sham transaction was not controverted. In that view of the matter there is no escape from the conclusion that the property continued to be in possession of the widow as before the execution of the deed. There is no evidence to support the alleged possession of defendants 2 and 46. Learned counsel for the respondents contended that this document was not valid in law inasmuch as that was not for the benefit of the soul of the deceased husband of the widow. His contention is correct, but the fact is that the deed of Arpannama remained only in paper and was not given effect to. In that view of the matter, the widow must be taken to have been in possession of the property on the 17th June, 1956, when the Hindu Succession Act came into force and from that date she would acquire absolute title in respect of the same. The plaintiffs will have no cause of action as far as that property is concerned. Thus, it appears that though the plaintiffs are the nearest reversioners of Nathuni Singh and though the legal necessity has not been established in support of the sales effected by the widow, Mst. Jagabati Kuer, in favour of some of the defendants, yet the plaintiffs' suit cannot be decreed in full. The suit will have to be dismissed as far as the properties covered by the permanent leases, Ext. D, dated the 7th May, 1945, in favour of defendants 5 and 9, Ext. D/1 dated the 31st July, 1947, in favour of defendants 5, 6, 9 and 10 and the property covered by Ext. 3 dated the 3rd December, 1945, in favour of Thakur Ram Jankiji (defendant No. 21) are concerned. The result is that the two appeals succeed in part and the decree of the trial Court is modified to the extent that the suit of the plaintiff will stand dismissed so far as these three items of the properties mentioned to their costs against the contesting defendants in the trial Court in proportion to their success. In this Court the parties shall bear their own costs these appeals.

Tarkeshwar Nath, J.:— I agree.

LE/R.G.D

66. Order accordingly.