The legal representative of a deceased coparcener must be substituted, and in the case of an abatement of an appeal, the cross-objection cannot be heard.

Jamuar, J.

1. This appeal arises out of a suit for partition which was partly decreed by the Additional Subordinate Judge of Gaya by his judgment and decree dated 31-7-1947. The appellants are defendants 13, 14, 15 and 16.

2. There were three brothers named Deonarayan Singh, Gopi Singh and Ram Kishun Singh, Matukdhari Singh, the son of Gopi Singh, was the plaintiff, and the descendants of Deonarayan Singh and Ramkisun Singh were defendants. The appellants are the descendants of Ram Kishun Singh.

3. The plaintiffs case was that the family was joint till the month of Aghan 1350 Fasli but then the members of the joint family had separated in status but not in their properties. The plaintiff, accordingly, claimed a partition of the joint family properties.

4. The appellants did not contest the right of the plaintiff to a partition but alleged that a portion of the properties sought to be partitioned and described in Schedule A attached to their written statement was not liable to partition, as it was their self-acquired property.

5. The learned Subordinate Judge found that a part of Schedule A properties was not liable to partition, as the part was the self-acquired property of the appellants.

6. The appellants, who, as I have stated, are defendants 13 to 18, filed their appeal in this Court on 1-12-1947, and the plaintiff filed a cross-objection against that part of the judgment of the Court below in which it was held that a part of Schedule A properties was not subject to partition.

7. Now, it appears that, after the filing of the appeal by the appellants, Ambika Singh, the first defendant in the suit, died on 20-1-1953, leaving a widow and a son. No petition for substitution of the legal representatives of Ambika Singh was filed. Ambika Singhs son, however, was already on the record as the second defendant. His widow was not made a party to the appeal. The question then arises whether, by reason of the non-substitution of Ambika Singhs widow, the entire appeal abates. The suit was brought against the individual members of the joint family, and not in any representative capacity, and as such, the interest of the widow of a deceased member is not represented by the other members of the joint family who may be on the record of the case. A Hindu widow is a legal representative of the deceased coparcener, and her interest must be represented -- see the case of -- Awadh Bihari Prasad V/s. Jhaman Mahton, AIR 1953 Pat 324 (A). In this view of the matter, there can be no doubt that the entire appeal abates. The appeal, therefore, must be dismissed as having abated but without costs.

8. The next question then is whether the cross objection filed by the plaintiff should be heard, or this also is liable to be dismissed by reason of the main appeal having abated. Mr. Sharma on behalf of the appellants, has contended, that, in the circumstances, the cross-objection cannot be heard. Under Sub-rule (1) of Rule 22 of Order 41, Civil P. C., a respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below but take any cross-objection to the decree which he could have taken by way of appeal, provided he files bis cross-objection within the time allowed. And Sub-rule (4) of that rule provides as follows : "Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit." It will appear from this sub-rule that the cross-objection may be heard and determined where the original appeal is withdrawn or is dismissed for default. The sub-rule does not include a case of an abatement of an appeal. As was observed in the case of -- "Murugappa Chettiar V/s. Poonnuswami Pillai, AIR 1921 Mad 405 (B), "if the legislature had intended th