Ramratna Singh, J.:— The plaintiffs have preferred this appeal Against the judgment and the decree of the Additional District Judge of Motihari confirming the judgment and the decree of an Additional Subordinate Judge in a suit for a declaration that a sale deed dated the 2nd January, 1939 executed by Rajbansi (defendant No. 4) in favour of defendants 1 and 2 in respect of land measuring 18 bighas 15 kathas and odd was void and not binding on the plaintiffs. The facts admitted or established are these. One Tape-shwar Singh had two wives. The plaintiffs were Born through the second wife; and Rajbansi Singh (defendant No. 4), who died during fee pendency of the present appeal was born through the first wife. Tapeshwar Singh died in 1916, but the family remained joint till 1921. The subject-matter of the suit was acquired in 1914 in the name of Rajbansi Singh. On the 10th August, 1918, this land was given, in usufructuary mortgage for Rs. 2,000 to defendant No. 3 under a registered bond executed by Rajbansi, and, after the sale deed dated the 2nd January, 1939, defendants 1 and 2 redeemed this mortgage and came into possession of the property in suit.

2. The plaintiffs claimed that it was a joint family property though acquired in the name of Rajbansi Singh and therefore, they had two-thirds share therein; but, without their knowledge, Rajbansi conveyed the same to defendants 1 and 2. They further said that the sale deed was illegal on account of the fact that a fraud on registration had been committed by including a small piece of land said to be situated within the jurisdiction of the Sub-Registry office where it was registered. Hence, they prayed to be put in joint possession of the property along with defendants 1 and 2, or, in the alternative, for a decree for a sum of Rs. 1333/5/4, being their two-thirds share of the price. Defendants 1 and 2 only appeared and contested the suit. They asserted that the disputed property was the self-acquired property of defendant No. 4; and the sale deed in their favour was a valid document for consideration which was paid to defendant NO. 4.

3. The learned Additional Subordinate Judge rejected the plaintiffs' case of fraud on registration; but he found that the disputed property was the self-acquired property of defendant No. 4 and dismissed the suit. On appeal the learned Additional District Judge agreed with the Additional Subordinate Judge in respect of the plea of fraud on registration; but he rejected the plea of self-acquisition and found that the disputed property belonged to the joint family consisting of Tapeshwar Singh and his three sons. He, however, dismissed the appeal on the ground that the interest of the contesting defendants in the suit property was protected by the provisions of Section 41 of the Transfer of Property Act.

4. The only ground urged on behalf of the appellants is that the lower appellate court was absolutely unjustified in applying the provisions of Section 41 of the Transfer of Property Act; and this ground must be upheld. It is well settled that the success or failure of a plea under S. 41 depends on findings of facts which must be alleged in the pleadings. The reason is obvious. Unless a party pleads facts to make out a case under this section, the other party is taken by surprise, inasmuch as he is unable to adduce any evidence to demolish such a plea. It is enough to refer to the decisions in Lal Mohan Prasad v. Goyind Saliu, AIR 1940 Pat 620 and Sm. Parbati Devi v. Kashmirilal Sarma, AIR 1959 Cal 69 in support of this principle.

5. In the present case, the respondents in whose favour the lower appellate court has applied section 41 did not even mention Section 41 of the Transfer of Property Act in the written statement. Nor did they plead waiver, estoppel or acquiescence. Consequently no issue was raised on this point. Even during the hearing of the suit the parties adduced evidence only on the question whether the suit property was the self-acquisition of defendant Rajbansi, the step brother of the plaintiffs, or it belonged to the joint family consisting of the three brothers, because admittedly there was a partition in the family a few years after the acquisition of this property and the property had been acquired in the life-time of the father. Hence the finding of the first appellate court applying Sec. 41 against the plaintiffs appellants must be set aside.

6. Sri B.C De, who appeared for the respondents, then challenged the finding that the suit property was acquired by the joint family and it was not the self-acquisition of Rajbansi. But there are sufficient materials on the record, which have been referred to in the judgment, to support the finding of the lower appellate Court; and the finding cannot be said to be unreasonable. Hence, this contention of Sri De must fail.

7. The only other contention of Sri De was that the appeal has abated as a whole. This second appeal was filed on the 18th July 1956; and admittedly in the same month Rajbansi, respondent No. 4, died leaving one son (respondent No. 5), three son's sons (respondents 6 to 8), a widow and two daughters. Thereafter, on the 21st August 1956, on the oral submission made by the advocate for the appellants it was stated in the order sheet thus: “Make a note that R. 5 is the heir of R. 4 who is reported to be dead”. On the 9th March, 1959, an affidavit was filed on behalf of respondent No. 1 stating that Rajbansi left a widow and two daughters as well and, as they had not been substituted till then the appeal abated as a whole. Thereafter on the 9th April, 1959 a petition was filed on behalf of the widow and the two daughters of Rajbansi with a prayer that they might be substituted in place of respondent No. 3. Another petition was filed on the 13th April 1959 on behalf of the appellants in which they prayed for setting aside the abatement and for substitution of the widow and the two daughters as well in place of respondent No. 4.

8. So far as the heirs of respondent No. 4, who were already on the record, are concerned, there is no difficulty, because in a Full Bench decision of this Court in Mt. Hifsa Khatoon v. Mohammad Salimar Rahman, 1959 BLJR 7 : (AIR 1959 Pat 254), it was decided that no application is necessary for substitution of those heirs of a deceased party who are already on the record. In a recent Full Bench decision in Baijnath Ram v. Mt. Tunkowati Kuer, F.A No. 404 of 1952, D/- 15-2-1962: (AIR 1962 Pat 285), it was held that Rule 2 of Order 22 of the CPC applies to a case where one of several plaintiffs or defendants dies and the right to sue survives to the remaining plaintiffs or defendants; and Rules 3 and 4 thereof apply, respectively, to a case where one of two or more plaintiffs or defendants dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone. These provisions apply to appeals by virtue of Rule 11 of that Order, it was further held that Rule 10 of the Order does not govern a case to which Rule 2, 3 or 4 applies. It was observed in this decision that

“If the matter falls under Rules 3 and 4, application of Rule 10 is outsted and report cannot be had to circumvent the mandatory provisions of rules 3 and 4”.

9. It was further held that Rule 10 applies only in those cases of death of a party to which Rules 2, 3 and 4 do not apply and, unlike Rules 3 and 4, no limitation is prescribed for presentation of an application for substitution of the legal representatives of a deceased party under Rule 10 and no penalty is laid down for failure to substitute the legal representatives in cases governed by rule 10.

10. Sri Sinha, however, contended that, in the present case, some of the legal representatives) of respondent no. 4 were already on the record and, inasmuch as, in view of the decision in the earlier Full Bench case, they was automatically substituted in place of respondent No. 4, there is no limitation for an application for the substitution of the remaining legal representatives, namely, the widow and the two daughters of respondent No. 4. In support of this contention, he relied on a Division Bench decision of this Court in Sadhu Saran Pandey v. Nand Kumar Singh, AIR 1926 Pat 276. In that case, one of the respondents, namely, Nand Kumar Singh, died and in his place the appellant substituted the name of his widow, Mosammat Ramkali Kuer. At a subsequent stage, it turned out “that Nand Kumar had another widow named Sheoratan Kuer. Their Lordships said that in accordance with the authority of this Court in the case of Lilo Sonar v. Jhagru Sahu*, AIR 1925 pat 123 and in consonance with rule 4 of Order 22, the appeal against Nand Kumar Singh could not abate, as one of his heirs, that is, Mt. Ramkali Kuer, was already on the record and the bringing in of Sheoratan on the record was “only for the purpose of the final disposal of the appeal”.

11. The decision in Sadhu Saran Pandey's case, AIR 1926 Pat 270, was not referred to in either of the two Full Bench decisions. But in Mt. Hitsa Khatoon's case, AIR 1959 Pat 254 (FB) the Full Bench discussed the decision in Lilo Sonar's case, AIR 1925 Pat 123. In that case Doman, one of the legal representatives of the deceased respondent, Jhagru Sahu, was already on the record as respondent No. 2 and no application for substitution of his other legal representatives was made within the statutory period. It was, therefore, contended that the appeal had abated. But this contention was accepted by their Lordships who held that the fact that one of the legal representatives of deceased Jhagru Sahu was already on the record did not relieve the appellant or the other heirs of the deceased from making an application for substitution as legal representatives of the deceased in terms of Rule; 2 of Order 22. The Full Bench decided that, in view of this fact, Rule 2 had no application and it was rightly held, that an application, for substitution in terms of Rule 4 had to be made.

12. Their Lordships, who decided Lilo Sonar's case, AIR 1925 Pat 123, held that the appeal did abate before the application for substitution was filed. But while discussing three decisions cited by the appellant in support of his contention that the presence of Doman on the record as the legal representative would prevent the appeal from abating, their Lordships Observed:—

“These cases do not go so far. They only lay down that, where there are several representatives, if an application is made within time for bringing any one of them on the record, the appeal does not abate, and that the other legal representatives may be made parties to the case even after the expiry of the time fixed for Substitution it is notable that in all those cases an application was made as required by rule 4 of Order 22 as regards one of the legal representatives within time. The rule does not require that all the legal representatives should be on the record, and if one of them is properly brought on the record as legal representative there will be no abatement. The aforesaid cases are not on all fours with the present one”.

13. There is nothing in this passage to indicate that the view contained in the last but one sentence thereof applies to all cases. The facts of the three decisions with reference to which the observation was made point to the same effect. In A. Venkata row v. M. Ammal, 22 Mad LJ 169, it was held that no application for execution against one of the representatives of a sole judgment-debtor saves limitation against other representatives as well. But the penalty of abatement does not apply to execution proceedings.

14. In Sughar Kunwar v. Sitapat Ram, 39 Ind Cas 135 : (AIR 1917 Oudh 34), it was held that, where the three sons of the deceased were substituted in time and these three sons were the managing members of the joint family, the omission to implead in time the other members of the family, who were sons of the said three managing members, does not result in abatement. The decision in ILR 10 Bom 220, Bhikaji Ramchandra v. Purshotam, was based on section 366 of the Old Code which required an application to be made by a person claiming to be the legal representative. At the best the aforesaid view may apply to a case where the appellant is aware of only one legal representative of the deceased and accordingly makes an application for substitution of that representative within three months of the death, but it transpires subsequently that the deceased had left other legal representatives as well and they are then brought on the record. Sadhu Saran Pandey's case. AIR 1926 Pat 276 was probably a case of this kind, because it is stated in the report that Mosammat Ramkali Kuer was substituted in time and “at a subsequent stage it turned Out” that the deceased husband of Ramkali had left another widow named Sheoratan Kuer.

15. I do not find anything in the language of, rule 4 of Order 22 to indicate that it will be sufficient to substitute in time only some of the several known legal representatives of the deceased. There can be no doubt that, in accordance with the Ordinary rule of interpretation, the expression “legal representative” of the deceased Occurring in rules 3 and 4 must be read in the plural when there are two or more representatives of the deceased; and no decision to the contrary has been brought to our notice. The argument in support of the contention that substitution of only Some of the legal representatives of the deceased within the period of limitation is sufficient, even when the other legal representatives are known at the times would amount to circumvention of the mandatory provisions of Rules 3 and 4 and such a circumvention is not warranted by the observation in the Full Bench decision of this Court in the case of Baijnath Ram decided on 15-2-1962: (AIR 1962 Pat 285).

16. In the present case, it is not the case of the appellants that they had no knowledge of the widow and the two daughters of respondent Rajbansi singh when a note was made on 21-8-1956 on the oral submission made by the advocate for the appellants to the effect that respondent No. 5 “is the heir of Respondent 4 who is reported to be dead”. The only reason given in support of the prayer for setting aside the abatement was that the said submission was made due to the ignorance of law on the part of the karpardaz, who was in charge of the case. In view of the foregoing discussions, the appellant's petition for substitution of the names of the widow and the two daughters of deceased Rajbansi Singh after the period of limitation laid down in Article 177 of the Indian Limitation Act must be rejected.

17. It will be recalled, however, that an application was also filed by the widow and the two daughters of Rajbansi on the 9th April 1959 for being made parties to the appeal in place of that respondent. The question now is whether such an application filed after the period of limitation prescribed in Article 177 can be allowed. sub-rule (1) of rule 4 of Order 22 lays down, inter alia, that the Court “on an application made in that behalf” shall cause the legal representative to be made a party, and sub-rule (3) of that rule lays down that, where no such application is made “within the time limited by law”, the appeal shall abate as against the deceased respondent. It will be noticed that sub-rule (1) does not say who will make that application; and Article 177 of the Limitation Act provides a period of ninety days for substitution of the legal representative of a deceased respondent from the date of his death. It cannot be argued, therefore that either Rule 4 or Article 177 refers to an application by the appellant only.

18. There is, however, a short decision of a Division Bench of the Madras High Court in M. Ramakrishna Reddi v. Reddivari Narasimha Reddi, AIR 1932 Mad 527 on which reliance was placed for the contention that the application by the legal representative of the deceased respondent for Substitution of his name in place of the deceased can be made at any time. The decision reads thus:

“In matters where a respondent's legal representative wishes to bring himself on the record, he ought to apply by petition under Order 22, Rule 4 of the CPC. But he need not apply for setting aside the abatement, for it is the appellant's appeal that abates against him. When he is willing to come in after lime, he is obliging the appellant and is not seeking a favour at the hands of the Court. The petition is Ordered.”

19. Of course, this decision lends support to the above contention; but I do not find anything in the language of Rule 4 to justify any distinction between an application by the appellant and an-application by the legal representative himself. There may be a case where the legal representative of a deceased respondent may be in collusion with the appellant and, on the failure of the appellant to make an application for substitution in time, that legal representative may, at the instance of the appellant, come in after the period of limitation in order to put the other respondents whose interest is adverse to that of the deceased respondent to a disadvantage. It is not only a question of obliging the-appellant, but also a question of putting some of the surviving respondents to a disadvantage, for instance, in the present case, respondent Rajbansi, who had sold the disputed property to the contesting respondents, and his son and grandsons did not even appear in the trial Court or in this Court to support the case of the contesting respondents apparently because, after having received the consideration, money from these respondents, Rajbansi and his descendants were in collusion with the plaintiffs-appellants in order to put the contesting respondents to a disadvantage. I am, therefore, unable to subscribe to the view in the Madras case.

20. Reliance was also placed on the decision of the Privy Council in Mahomedally Tyebally v. Safiabai, AIR 1940 PC 215. That appeal arose out of a suit for administration. One Sakinaboo, a defendant in the suit, died in March, 1932, leaving her daughter, Rakhinaboo, as her heir. No application to make the daughter a party to the suit was made within ninety days of the death of her mother and no application was made within sixty days thereafter to set aside the abatement. But on the 10th May, 1936, Rukhinaboo herself applied to be brought on tbs record in her mother's place and claimed a share in the relief asked by the plaintiff. A judgment of the Bombay High Court, where the suit lay on the original side, acting under Rule 10 of Order 1 of the CPC, added her as a defendant to the suit in place of her mother. It was argued before the Privy Council that this action of the learned Judge was illegal. Their Lordships of the Judicial Committee rejected this argument with this observation:

“The presence of summons to represent Sakinaboo's interest was very proper and highly desirable in the interest of every other party but it is putting it too high to say that the suit could not possibly go on without her. It not uncommonly happens, in a suit for administration, that for one reason or another a particular interest is not represented before decree, but is either provided for by the decree, or is asserted at a later stage under the decree, or is given effect by a party being permitted to attend certain accounts and inquiries so as to be bound by the result.

21. Still, it would have been very bad practice if in the present case Rukhinaboo had not been joined as a party and this was properly done by Barlee, J., on her own application under O. 1, R. 10. Their Lordships are of opinion that it is open to the Judge in his discretion under O. 1, R. 10, to add as a party to the suit the representative of a person against whom the suit has abated for the purpose of giving effect to the rights of the parties. The contention that the plaintiff's suit had abated as a whole is fundamentally mistaken it involves that the plaintiff was claiming relief against Sakinaboo, that because Sakinaboo's heirs were entitled to resist the grant of this relief in the present suit by reason of the plaintiff's laches, the plaintiff could not be given relief against the present appellants. No step in this reasoning can be justified.”

22. From this observation itself, it appears that different considerations arise in a suit for administration, and, therefore, this decision is of no help to the appellants.

23. There is no doubt, so far as the interest of Rajbansi's widow and daughters who are his heirs under tile Hindu Succession Act of 1956, is concerned that the failure to bring them on the record has resulted in the abatement of the claim of the appellants and contesting respondents acquired a vested right in consequence thereof. The view that these heirs of Rajbansi can be brought on the record even after the period of limitation prescribed in Article 177 of the Limitation Act would amount to the taking away of this vested right of the contesting respondents, and the court would not be justified in acting against the clear provisions of rule 4 of Order 22 of the CPC, and Article 177 of the Limitation Act by bringing these heirs on the record to the detriment of the Substantive right acquired by the contesting respondents. The appeal, therefore, abated in respect of the interest of the widow and the daughters of Rajbansi.

24. The next question is whether the appeal abated to the above extent only or it abated as a whole. The test usually applied to determine whether the appeal abates entirely or qua the respondent whose legal representative has not been substituted is whether or not the appeal can be decided without bringing into existence two contradictory decrees in the some litigation, and if the result is to have two decrees contradictory to each other in respect of the same subject-matter, the appeal abates as a whole Another alternative test is whether the suit could have been tried if the deceased person had not been joined either a plaintiff or defendant. If a decree can be passed in so far as the rights of the parties actually before the Court are concerned without interfering with the rights of others, the appeal can continue but otherwise it abates as a whole. Applying either of the two tests, the present appeal abates as a whole.

25. The suit land was sold to defendants 1 and 2 by Rajbansi, treating it as his separate property. The plaintiffs-appellants) who are his step brothers, instituted the present suit; for a declaration of their title to the two-thirds share of the suit land and for joint possession on the allegation that the suit land was acquired on behalf of the joint family before their separation from Rajbansi, and, in the alternative, they prayed for recovery of two thirds share of the price for which it was sold.

26. It is, therefore, clear that before any decree can be passed against defendants 1 and 2, it has to be decided whether the Suit land was the separate property of Rajbansi or it belonged to the said joint family, and, in the absence of Rajbansi or after his death in the absence of his legal heirs, this question can be decided. As the widow and the daughters of Rajbansi have acquired interest under the Hindu Succession Act after his death, the question cannot be decided in their absence. And it is obvious that, unless this question is decided, no decree can be passed against respondents 1 and 2. If the appeal is deemed to have abated in part only, and the appeal is allowed against only the respondents who are on the record, the result will be that there will be two inconsistent decrees — one decree in favour of the plaintiffs-appellants against these respondents in respect of the interests of respondents 5 to 8 and the decree of the lower appellate court against the plaintiffs-appellants in respect of the interest of Rajbansi's widow and daughters. Hence, the appeal has abated as a whole; and there is no reasonable ground to set aside the abatement. In the result, the appeal must be dismissed, as it has abated as a whole. Parties will bear their own costs of this appeal.

Kanhaiya Singh, J.:— I agree.

GF/V.B.B

27. Appeal dismissed.