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CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 760 to 762 of 1967.

Appeal from the judgment and decree dated the 27th July, 1959 of the Patna High Court in Appeal from Original Decree Nos. 326, 332 and 333 of 1948.

S. C. Misra, Indubhanu Singh, Inderdeo Narain Singh, Gyan Sudha Misra and D. Goburdhan, for the appellants. A. K. Sen (In C.A.No. 760/67), Sarjoo Prasad (In C.A. No. 761762/67), Gunteswhar Prasad and R. D. Datar for the respondents.

The Judgment of the Court was delivered by ALAGIRISWAMI, J.-In the year 1872 one Ramdhan Singh, a Bhumihar Brahmin, of village Barhiya in Bihar died leaving behind two widows, Mosst. Manrup Kumari and Pan' Kumari, and about 1700 bighas of land. Manrup Kumari died in 1923 and Pari Kumari in 1933 Even while Pari Kumari was alive her brother Sunder Singh ,seems to have been managing the estate on her behalf. Shortly before her death he managed to get from her a deed of release in favour of two persons, Gaya Singh and Falgu Singh, alleged to be the sons of Ramdhan Singh's daughter, Jayanti Kumari. In spite of the objections by persons who claimed to be the nearest reversioners of Ramdhan Singh's estate, the lands were recorded in their names in the land revenue proceedings. This led to a number of proceedings both civil and criminal. Ultimately the reversioners, who are now the respondents in these appeals, filed five suits, T.S. Nos. 53 and 61 of 1934 and 20, 29 and 41 of 1935 for possession of the estate. In 1936 another suit, T. S. No. 37 of 1936 was filed by the present plaintiffs 8 to 12, 15, 16 and 18 to 21 and Kunu Babu Singh, uncle of the 11th plaintiff. In that suit also Gaya Singh and Falgu Singh were defendants. In addition, the plaintiffs in T.S. No. 53 of 1934 and certain others were added as defendants. The plaintiffs in that suit claimed to be the nearest reversioners to the estate of Ramdban Singh and also that there was a custom prevalent in the family for a long time that more distant heirs than the Shastric heirs of a person also joined the latter in succeeding to the properties left behind by him. They wanted to be held as the nearest reversioners to Ramdhan Singh's estate and thus entitled to the properties left by Pari Kumari. That suit failed. There-, after, the suit out of which the present appeals arise was filed. In this the plaintiffs, in T.S. Nos. 53 and 61 of 1934, and 20, 29 and 41 of 1935 are defendants; so also certain alieness from them. Certain parties who are related to Ramdhan Singh in the same degree as the plaintiffs, are also defendants. The plaintiffs in the title suits of 1934 and 1935 are the nearer heirs of Ramdhan Singh and are entitled to succeed to his estate on the ground of propinquity-if the ordinary rule of Hindu Law applied. The plaintiffs in the present suit as well as the defendants who are sailing with them are related to Ramdhan Singh in a distant degree and would not be entitled to succeed to his estate under the ordinary rule of Hindu Law. Their claim is based on the plea of a special custom applying to the family to which the parties belong. According to the plaint the parties are descendants of one Choudhry Mohkam Singh. The plaint was accompanied by a genealogical table which runs into 26 printed pages in the paper book. But during the course of the trial evidence has been let in to prove the genealogy from the days of one Pran Thakur who is said to have migrated to the village Barhiya about five to six hundred years ago from a place called Sajidehpur. Though on behalf of the defendants the fact that the original family had migrated from Sandehpur was not admitted, a point which is of little importance, it seems to have been generally agreed among the parties that the common ancestor was Pran Thakur and he lived five to six hundred years ago. Instances to prove the custom put forward on behalf of the plaintiffs were given not merely from the family of Mohkam Singh but also from various other branches said to be descended from Pran Thakur. The village Barhiya is divided into twelve Tarafs named after twelve of Pran Thakur's descendants. The twelve descendants whose names these Tarafs bear were not necessarily at the same degree of descent from Pran Thakur but that again is not of much importance. The parties to this suit belong to Taraf Ram Charan but in the plaint it was not the custom of Taraf Ram Charan that was pleaded but only the custom in the family of Ch. Mohkam Singh, Taraf Ram Charan being a larger group. Fifty two instances were sought to be proved on behalf of the plaintiffs. The learned Sub-ordinate Judge who tried the suit held fortythree of them proved. The learned Judges of the High Court felt that from a reading of the plaint, evidence in connection with the, instances in Ch. Mohkam Singh's family only were admissible and ought to have been gone into. But as it did not appear that the defendants had objected to the adducing of evidence from the other families and Tarafs and the parties perhaps understood the plaint to mean that their common ancestor was Pran Thakur, they did not rest content with examining the instances from Mohkam Singh's family only. Out of the 52 instances only three were from among the descendants of Mohkam Singh. Out of the other 49 instances, nine were from the Taraf Ram Charan, two of which were held by the learned Subordinate Judge as not proved. He, however, held all the three instances from Mohkam Singh's family, as proved. The learned Judges of the High Court, however, on an exhaustive review of the evidence, held that none of the fiftytwo instances had been established satisfactorily the custom alleged in the family of Mohkam Singh or amongst the by clear and unambiguous evidence so as to be sure of the existence of descendants of Pran Thakur.

The earliest of these documents is Ext. EE dated 25-8-1927, a application filed by Dhunmun Singh, father of Hari Singh, plaintiff No. 29 praying that the estate of Ram Dhan Singh may be taken over by the Court of Wards. This was accompanied by genealogy which is found at page 2780 of the paper book. It is admittedly a false genealogy and was apparantly prepared in order to show that he was the nearest reversioner to Ram Dhan Singh's estate. If the present case regarding the special custom obtaining in the family were correct this document would certainly have mentioned the custom and dhunmun would have claimed to be reversioner on the basis of the custom. That he had to go to the extent of preparing a false genealogy in order to show that he was the nearest reversioner falsifies the present case about the custom. It should also be remembered that according to the case of the plaintiffs Dr. Rameshwar Singh's property Had been divided a few years earlier according to custom and Dhunmun was one of the parties involved.

We should, perhaps, at this stage refer to Ext.16, deed of sale by Zalim Singh, 4th defendant, in favour of Ram Khilavan, 13th defendent; Ext.16-A, deed of sale by Barho Singh, 5th defendant, to Ram Saran Singh, 12th defendant; Ext.16-F, deed of sale by Zalim Singh, the 4th defendant, in favour of Bindo Singh, and Ext.16-E, a deed of sale by Zalim Singh to Ram Saran, 12th defendant. These documents were like Ext-18 relied upon very much by the appellants as showing that as the nearest reversioners they had recognised the right of the more distant reversioners. it should be remembered that these documentsare allof the year 1937 when the earlier litigation hadnotended. The documents themselves show that the executants were poor men and they were being financed by the more distant relatives. The documents themselves purport to be out and out sale deeds and in the absence of any evidence by the parties to those documents who are parties in this suit but have not given any evidence as to why and how those documents were executed or the recitals in those documents were put in we cannot place any reliance upon them as establishing that the documents show a recognition by the near agnates of the rights of distant agnates. They seem to be documents executed because of the financial help received by the executants and partly perhaps to buy up the rich and powerful relatives who might otherwise give trouble. We are not inclined to attach much importance to them as esta- blishing the custom pleaded. Ext.17-A does not carry the case of the plaintiffs any further.

viving appellants could have filed the appeal against the entire decree in view of the provisions of O.41, r. 4 of the Code of Civil Procedure and that they were, therefore, competent to continue the appeal even after the death of K and the abatement of the appeal so far as he was concerned. It was held that the provisions of O.41, r. 4 of the Code of Civil Procedure were not applicable, since the second appeal was filed by all the plaintiffs and the surviving appellants could not be said to have filed the appeal as representing K. It was further held that an appellate court had no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O.41, r. 4 when the decree proceeded on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appealed from the decree and any of them died and the appeal abated so far as he was concerned under O.22, r. 3. It was also held that the provisions of O.41, r. 33 were not applicable. The content-,,on that all the appellants belonged to a joint Hindu family was rejected in that case. It was also held that O.41, r. 4 applies to the stage when an appeal is filed but that once an appeal has- been filed by all the plaintiffs the provisions of O.41, r. 4 became unavailable. It was also held that if some party dies during the pendency of the appeal his legal repre- sentatives have to be brought on the record within the period of limitation, and if that is not done, the appeal by the deceased appellant abates and does not proceed any further. In so holding this Court over ruled the view taken by the Bombay, Calcutta and Madras High Courts in Shripad Balwant v. Nagu Kusheba (ILR 1943 Bom. 143), Satulal Bhattachariya v. Asiruddin Shaikh [ILR (61) Cal. 8791] and Somasundaram Chettiar v. Vaithilinga Mudaliar [ILR (40) Mad. 846] respectively which had held that if all the plaintiffs or the defendants appeal from the decree and any of them dies the appellate court can proceed with the appeal and reverse or vary the decree in favour of all the plaintiffs or defendants under O.41, r. 4 when the decree proceeds on a ground common to all the plaintiffs or defendants. The important point to note about this litigation is that each of the reversioners is entitled to his own specific share. He could have sued for his own share and got a decree for his share. That is why five title suits Nos. 53 and 61 of 1934 and 20, 29 and 41 of 1935 were filed in respect of the same estate. In the present case also the suit in the first instance was filed by the 1st and 2nd plaintiffs for their 1/12th share. Thereafter many of the other reversioners who were originally added as defendants were transposed as plaintiffs. Though the decree of the Trial Court was one, three appeals Nos. 326, 332 and 333 of 1948 were filed by three sets of parties. Therefore, if one of the Plaintiffs dies and his legal representatives are not brought on record the suit or the appeal might abate as far as he is concerned but not as regards the other plaintiffs or the appellants. Furthermore, the principle that applies to this case is whether the estate of the deceased appellant or respondent is represented. This is not a case where no legal representative of Manmohini was on record. Order 22, r. 4 of the Civil Procedure Code reads "4. (1) Where ... a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representive of the deceased defendant to be made a party and shall proceed the suit.