The main legal point established in the judgment is the importance of properly constituting appeals by impleading all necessary parties and the court's power to avoid conflicting decrees in the interests of justice.

1. This second appeal was heard by me on 1121965 and it was posted for delivery of judgment on 612 1965. On going through the records I found that defendants 3 to 6 who were also benefitted by the decree of the lower appellate court dismissing the suit were not made parties to the second appeal and therefore I felt that the appeal was not properly constituted. I mentioned this to the advocates on both sides who requested for a further hearing on this matter. The second appeal was therefore posted again in Chambers on 7121965 when the advocates on both sides were heard.

2. I am of the view that the second appeal has to fail on account of the non-impleading of defendants 3 to 6 as respondents to the appeal.

3. The plaintiff and the first defendant are the daughters of Pappi Amma who died in November 1954. Defendants 2 to 6 are the children of the first defendant. The parties are Nairs governed by the provisions of the Travancore Nair Act. The plaint items were purchased under the sale deed Ext. P-1 dated 1011 1121. Ext. P-1 is in favour of Pappi Amma and defendants 1 to 6. The consideration for Ext. P-1 is Rs. 2000/-. Ext. P-1 contains a recital that Rs. 1000/- was paid by Pappi Amma and the balance of Rs. 1000/-was paid by defendants 1 to 6. According to the plaintiff, Pappi Amma is the owner of one-half of the property comprised in Ext. P-1 and after her death the property devolved on the plaintiff and the first defendant in equal shares, under the provisions of the Travancore Nair Act.

4. The second defendant contended that under Ext. D-1 partition deed of 1104 in the main tarwad of Pappi Amma, the plaintiff got separated from the tavazhi of Pappi Amma and to the tavazhi consisting of Pappi Amma and the first defendant C Schedule property in Ext. D-1 was allotted. The sum of Rs. 2000/-paid for taking Ext. P-1 was by the sale of a properly included in the C schedule in Ext. D-1 and the property comprised in Ext. P-1 is not the separate property of Pappi Amma, but is the sub-tarwad property and the plaintiff cannot claim any right in the plaint items.

5. The trial court took the view that under Ext. D-1 every member of

Pappi Amma's tarwad got divided and Pappi Amma and the first defendant did not remain as members of a tavazhi but were tenants in common in respect of the properties in C schedule in Ext. D-1. The Munsiff therefore, held that one-half of the property under Ext. P-1 is the separate property of -Pappi Amma which after her death devolved on the plaintiff and the first Defendant in equal shares.

6. The lower appellate court took the view, that the C schedule in Ext. D-1 was allotted to the sakha consisting of Pappi Amma and the first defendant and since Ext. P-1 property was purchased with consideration raised by the sale of a property included in the C schedule in Ext. D-1, the plaintiff could not get a share in the plaint item.

7. The effect of the decree of the lower appellate court is that the sakha of Pappi Amma and defendants 1 to 6 after the separation of the plaintiff continued undivided and that the C schedule property in Ext. D-1 was allotted to that sakha and consequently the plaint property purchased under Ext. P-1 with the sale proceeds of an item of property in C schedule in Ext. D-1 belonged to the sakha of defendants 1 to 6 and that therefore the plaintiff is not entitled to any share in that item. The decree of the lower appellate court is therefore a decree in favour of defendants 3 to 6 as well though they were not parties before the lower appellate court. But in the second appeal defendants 3 to 6 were not impleaded. Any variation of the decree of the lower appellate court by this Court will therefore be to the detriment of defendants 3 to 6 in an appeal to which they are not parties.

8. O.41, R.4 C. P. C. provides that "where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendant