On the death of one of the plaintiff-respondents in a joint decree, the appeal before the lower appellate court abates, and the proper procedure is to set aside the ineffective decree passed by the lower appellate court and remand the appeal for rehearing after giving the appellants an opportunity to have the abatement set aside.

( 1 ) THIS appeal from appellate decree is at the instance of defendant Nos. 4, 5 and 6 who are the transferees from defendant Nos. 2 and 3. Then appeal arises out of a suit for declaration of title and possession of the properties described in the two schedules to the plaint brought by the three plaintiffs Bhabataran, Nrityataran and Gobardhan.

( 2 ) ON May 19, 1913 one Kiranbala Dassi, a child widow sold away all her husband's brother Srinibas the father of defendants 2 and 3 and came to live with her father and her brothers, the plaintiffs as aforesaid; the three plots of land which constitute the suit property were purchased by her by three documents respectively dated May 18, 1924, November 19, 1928 and December 20, 1934; she died while possessing and enjoying these properties in 1360 B. S. and it appears that later in her life she had separated even from her brothers, the plaintiffs, and was living in a homestead situate on a part of the suit property.

( 3 ) PLAINTIFFS claimed that of the two schedules, the first one was purchased by them in the benami of their sister late Kiranbala and that the second schedule was purchased by her out of her "stridhan" money and that on the death of Kiranbala they inherited the second schedule - the first schedule remaining their own property; in respect of the first schedule they had made an alternative claim namely that even if it was purchased out of her "stridhan" money and as such they had inherited the same too; they instituted the suit because defendant No. 1, who was a bargadar, had set up a claim that on the death of Kiranbala it was defendants 2 and 3, her husband's brother's sons, who became the owners of the properties and because the plaintiffs also came to know that the defendants 2 and 3 treating the properties to be a part of their inheritance on the death of Kiranbala sold the same to defendants 4, 5 and 6, appellants.

( 4 ) THE suit was contested by three sets of defendants, namely, defendant No. 1, defendant Nos. 2 and 3 and defendant Nos. 4 to 6.

( 5 ) DEFENDANT No. 1 only pleaded that he was a bargadar in respect of all the three plots previously under Kiranbala and since her death he had been paying the bhag produce to defendant No. 2 and 3.

( 6 ) THE defence of the other two sets of defendants were more or less the same; their claim was that all these properties were purchased by Kiranbala out of the purchase money which she had received from the father of the defendants 2 and 3 by selling her husband's properties in the year 1913 and as such must be treated to be accretions to the husband's estate which devolved on the death of Kiranbala on defendants 2 and 3 who, in their turn, lawfully transferred the same on December 8m, 1953 in favour of defendants 4, 6.

( 7 ) IN substance there was a rival claim to the suit properties left behind by Kiranbala plaintiffs claiming as preferential heirs as her brothers treating the property to be a part of her "stridhan" while defendants 2 and 3 and through them the defendants 4-6 lay their claim by inheritance treating it to be a part of her husband's estate. It is, however, clear and undisputed that as amongst the plaintiffs the claim was one of joint title by inheritance.

( 8 ) THE learned Judge in the trial Court decreed the suit on a finding that the properties of both the schedule were "stridhan" properties of Kiranbala and that the plaintiffs are the preferential heirs; claim for possession however was decreed through defendant No. 1, the bargadar.

( 9 ) AGAINST the said decree the defendants 4 to 6 preferred an appeal before the lower appellate court which was registered as Title Appeal No. 60 of 1957. The appeal was heard on January 7, 1959 and was dismissed on merits on January 17, 1959. The learned Judge in the court of appeal below came to the same conclusion as the trial Court but on somewhat different reasonings.

( 10 ) IT is not disputed before us that if the suit properties be a part of t