Wanchoo, C.J.—The question in this case is whether the appeal has abated.

2. We might narrate the facts briefly to understand the point involved. The appeal was pending in this Court, and Motilal was one of the respondents, He died on the 26th of September, 1953 for bringing his legal respresentatives on record. In this application, the names of Mohanlal and Purshottam Das, his minor sons, alone were mentioned, and it was prayed that they be brought on record under the gurdianship of their mother. While processes were being issued in this connedtion, an application was made on the 7th of March, 1954, by the appellant praying that some lawyer be appointed guardian of the minors as the mother was apparently not agreeable to act as guardian. In this application, a third son, namely Mohan Lal and Purshottam Das were mentioned. This fact was noticed, and the counsel was asked to explain how the name of another son was being mentioned in this application. Thereupon, the counsel explained that Motilal had left one more son Ratanlal who was younger than Purshottam Das and Mohanlal, and that be should also be made a legal representative of Motilal. It was then pointed out by the office that as Motilal had died on or before the 27th of September, 1953, the prayer for bringing Ratanlal as legal representative was barred by time. Thereupon, the case was put up before learned counsel for the parties, and it was contended on behalf of Daudas respondent that the whole appeal abated.

3. An application has, however, been made on behalf of the appellant for setting aside the abatement and giving him the benefit of sec. 5 of the Limitation Act. An affidavit has been filed in support of the application, and it has been said that he came to know of the death of Motilal by a letter which he received, and in that letter the names of only two sons were mentioned. He made enquiries, and came to know that there were only two sons of Motilal. Later however, in February, 1954, he came to know from a relation that Motilal had left a third son named Ratanlal. The appellant did not know about it because Motilal and his sons lived in a village in Berar, while the appellant lived in Aligarh.

4. The appellant contends that the appeal has not abated, and in the alternative pressed that the benefit of sec. 5 may be given to him. It is first urged that Motilal is a pro forma defendant, and therefore there is no question of the appeal abating simply because the legal representative of a pro forma respondent had not been brought on the record.

5. It appears that the plaintiff and Motilal deceased respondent are descendants of a common ancestor. The plaintiffs case was that there had been a partition in the family, and the property in dispute came to the share of the plaintiffs branch, and therefore Motilal had no authority to sell this property to Gulabdas respondents father and grand-father. It appears that there was a decree outstanding against Gulabdas, and in that decree the property was put to sale and purchased by Daudas respondent and another. In these circumstances, it is true that Motilal was not very interested in this litigation, and that is why he did not mean that he was not a necessary party to the suit. The foundation of Gulabdass ownership to the property was the sale deed by Motilal and his sister-in-law in favour of Gulabdass father and grand-father It is that foundation which is being attacked by the plaintiff, and, in the circumstances, we are of opinion that Motilal was a necessary party to the suit. The array of parties would not have been complete without him, and it is really his right to the property which is under dispute. Motilal, therefore, cannot be called a pro forma defendant. He appears to us to be a necessary party, and therefore his representatives also are necessary parties to the suit and must be brought on the record.

6. The next point, that has been urged, is that two sons, namely Mohanlal and Pur-shottamdas, of Motilal were brought

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