The death of one of the appellants during the pendency of an appeal does not necessarily lead to the abatement of the appeal as a whole, if the estate of the deceased appellant is fully represented by the remaining appellants.

1. This second appeal by the defendants arises out of a suit instituted by the plaintiff-respondent, for their eviction from a room of a house situated in Gandhi Market in the Town of Sitamarhi.

The plaintiff instituted the suit against the three appellants along with their father Ram Swarup Sah who was impleaded as defendant No. 4. The case of the plaintiff, as appears from the statements made in the plaint, was that the defendant-appellant No. 1 took a room of the house in question for the purpose of carrying out a ready-made cloth business in the capacity of Manager of the joint family. Eviction was sought on the ground of default in paying the monthly rentals, I am, however, not concerned with the details of the grounds of eviction as the question that falls for my determination is entirely different.

2. Written statement was filed only by defendant No. 1 and no other defendant appeared to contest the suit Defendant No. 1 also did not controvert the above statement of the plaintiff regarding his representative capacity.

3. The trial Court decreed the suit against all the defendants and passed a decree for eviction from the suit premises and also for arrears of rent; the decree against the non-contesting defendants being ex parte.

4. As appeal was preferred by all the four defendants in the Court of appeal below. During the pendency of the appeal, defendant No. 4 namely, the father of the present appellants, who was also appellant No. 4 in this Court, died on 23-9-1974 leaving behind three sons, namely, the present appellants, as well as four daughters. The appellants took no steps for substitution of their sisters but filed an application on 8-7-1975 stating therein "that the heirs of the deceased who us in possession of the estate and are representing the same are already on the record - his three sons who are appellants here. Hence it is necessary that the name of appellant No. 4 be expunged." On these statements they prayed for expunging the name of appellant No. 4 from the memorandum of appeal. A rejoinder was filed by the plaintiff-respondent to this petition stating therein that the said petition having been filed after the expiry of the period of limitation without taking any step for substituting all the heirs of the deceased appellant, the appeal had abated as a whole inasmuch as the estate of the deceased also devolved on his daughter.

The Court of appeal below by its order dated 10-12-1975 took the view that the appeal abated as a whole inasmush as the daughters of appellant No. 4 had also interest and were necessary to be impleaded in the appeal. Accordingly, the defendants have filed this appeal.

5. Learned counsel appearing in support of this appeal has raised two questions. His first contention was that after the determination of the tenancy by the plaintiff the defendants became statutory tenants and defendant No. 4 after his death did not leave any interest which could devolve or be inherited by his heirs. His second contention was that in any view of the matter, the estate of appellant No. 4 was being sufficiently represented by his three sons, and, therefore, the question of abatement did not arise and accordingly the Court of appeal below had committed an apparent error of law in holding that the appeal abated as a whole, as the interest of appellant No. 4 was not fully represented by the remaining appellants on the record.

6. The first contention is based upon a decision of the Supreme Court in the case of J.C. Chatterjee V/s. Sri Rishan Tandon, AIR 1972 SC 2526. That was case arising out of the provisions of the Rajasthan Premises (Control. of Rent and Eviction) Act. In that case also, during the pendency of the second appeal in the High Court by the landlord, the tenant had died and on his death his widow and other heirs were substituted. When the appeal was taken up for hearing a contention was advanced on behalf of the landlord "that the deceased after the determination of the tenancy was