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40. Sankru Mahto v. Bhoju Mahto, AIR 1930 Pat 548: ILR 15 Pat 326. In the above case, it was laid down by Macpherson and Mohammad Noor, JJ., that the test whether a right to sue survives in the surviving plaintiffs or against the surviving defendants is whether the surviving plaintiffs can alone sue or the surviving defendants could alone be sued in the absence of the deceased plaintiff or defendant respectively,

41. Bhudeb Chandra Roy v. Bhikshakar Pattanaik, AIR 1942 Pat 120. In that case, the just mentioned case of Sankru Mahto, AIR 1936 Pat 548, was relied upon. That was an appeal arising out of a suit for recovery of rent and cess. During the pendency of the appeal, one of the appellants died leaving a will by which appellant No. 2 was appointed as the sole executor. In considering the argument as to whether an application for substitution was necessary under Rule 35. Order 22, when appellant No. 2, the sole executor, was on the record, in his individual capacity and not as a legal representative of the deceased appellant, Chatterji, J., with whom Harries, C. J., agreed, observed, that upon the plain language of Rule 3, Order 22, it obviously applies to a case where the right to sue does not survive to the surviving plaintiff or plaintiffs alone; in other words, where the legal representative to whom the right to sue survives is not on the record.