The court established the validity of the cowle and grant of umbalam lands under the Impartible Estates Act and the existence of the cowle before 1913.

Burn, J.

1. This was a suit for rent Under Section 77, Madras Estates Land Act. The fact have been clearly and fully sat out in the judgments of the learned Deputy Collector and the learned District Judge and need not be repeated in detail now. The lauds on which rent was claimed are situated in the village of Sinnayaviduthi and its hamlet Krishnapuram in the Neduvasal Zamin. The principal points in dispute between the plaintiff who was the landholder, and the defendants, related to 1 1/4 veils of land which the defendants claimed to be holding rent free as umbalam lands and 5 velis of land which they claimed to be holding under a permanent cowle at the rate of Rs. 5 per veli. The learned Deputy Collector found against the land-holder on both these points. On his appeal the learned District Judge found in favour of the tenants with regard to the umbalam lands and in favour of the landholder with regard to the cowle. The tenants preferred this appeal.

2. A preliminary objection was raised with regard to the maintainability of this appeal. The appeal was preferred by defendants 2, 3 and 4 who were the only defendant interested and after the appeal was filed defendant 4 died. No application was made to bring his legal representatives on record within the time allowed and a belated application for that purpose was dismissed. The appeal of defendant 4 therefore abates, and it was contended on behalf of the respondent that since defendants 2, 3 and 4 claimed to be jointly interested in the lands, being undivided brothers, the appeal as a whole must be held to have abated. Order 22, Rule 3, Civil P.C. was quoted in support of this contention and she ruling in Aminchand v. Baldeo Sahai Ganga Sahai A.I.R. (1934) Lah 206 was relied upon as well as the cases in Balaram Pal v. Kanysha Maahi AIR1919Cal410 and Saru Khan v. Jan Muhammad A.I.R. (1928) Lah 43. Whatever may be the views of other High Courts upon this question, the view of this High Court is against the contention of the respondent. In Somasundaram Chettiar v. Vaithilinga Mudaliar A.I.R. (1918) Mad 794 a Bench of this Court held that the provisions of Order 41, Rule 4 enabled the Court to vary the decree as a whole even though the appeal of one of the appellants might have abated by reason of death. This case was followed by Spencer J. in Chengamma Naidu v. Gangulu Naidu AIR1925Mad235 and the judgment of Spencer J. was confirmed by a Bench of this Court in L.P.A. 96 of 1924. These cases were followed by Curgenven and Sundaram Chetty JJ. in Chenchuramayya v. Venkatasubbayya Chetti AIR1933Mad655 This matter is therefore settled against the contention of the respondent so far as this High Court is concerned.

3. Mr. A.V. Viswanatha Sastri for respondent then points out that, in any case it is a question for the discretion of the Court to exercise its power to refuse to exercise its power Under Civil P.C.O. 41, Rule 4. That is so and the present case is, I think, "a fit one for the exercise of this discretion in favour of the appellants. I therefore overrule the preliminary objection.

4. Naduvasal Zmmin is one of the estates scheduled under the Madras Impartible Estates Act and it was contended on behalf of the landholder that the cowle as well as the grant of the umbalam lands rent free would be prohibited by Section 4 of that Act, The learned District Judge agreed with the learned Deputy Collector that Section 4, Impartible Estates Act, would not prohibit either of these alienations though the learned District Judges reasons were not quite the same as the reasons of the learned Deputy Collector. It is quite clear as Mr. K.V. Krishna, swami Ayyar contends for the appellants that Section 4, Impartible Estates Act, cannot be held to prohibit either the cowle at a favourable rate of rent or the grant of umbalam lands rent free. It is clear beyond the possibility of any doubt that the defendants held two usufructuary mortgages (Exs. C and D) of the village of Sinnayaviduthi and Kris