Where the sale deed is in favour of persons in undefined shares, the death of one and the abatement against him abates the entire appeal.

JUDGMENT: The plaintiff is the appellant. He filed the suit for a declaration of his title to, and recovery of possession of, the suit properties. These properties were conveyed by his deceased brother to defendants 1 to 4 who are members of a joint Hindu family, defendants 1 to 3 being brothers and defendant 4 being their nephew. The sale deed was dated 22-1-49. The trial Court decreed the suit, but on appeal the suit was dismissed. Against that the plaintiff filed this Second Appeal.

During the pendency of this appeal, respondent No. 3, one of the joint brothers, died and his legal representatives were not brought on record in time. An application was filed after the time to substitute the legal representatives of the deceased respondent No. 3 along with a petition for condoning the delay in filing the application. By an order dated 17-9-57 the said petitions were rejected and an order was passed that the appeal abated as against the deceased respondent No.3.

2. Mr. Chatterji, the learned counsel for the respondents takes a preliminary objection that in view of the appeal having abated against respondent No. 3, the entire appeal abated in toto against all the respondents. He contends that the sale deed Ext. D is the subject matter of attack by the plaintiff challenging its validity and that the sale deed was executed in favour of four members of a joint Hindu family. As such, he submits that the vendees are joint tenants and are in joint possession and so on account of the death of respondent No. 3 and his legal representatives not having been added and the appeal having abated against him, there is a decree of the lower appellate Court which has become final as far as respondent No. 3 is concerned holding that the sale deed is valid and the plaintiff is not entitled to recover Possession of the properties and the legal representatives of the deceased respondent No. 3 continue to be in possession of the properties under the sale deed.

Therefore, in this appeal, if it is heard and if the plaintiff-appellant succeeds and obtains a decree, then as far as respondents 1, 2 and 4 are concerned, there will be a decree that the sale deed is invalid and they are not entitled to be in possession. In such a contingency, Mr. Chatterji submits, there will be two contradictory decrees which should not be allowed to come into existence. Therefore, the learned counsel contends that as the appeal has abated against respondent No. 3, the whole appeal is to be held to have abated.

3. For this position, Mr. Chatterji relies on a decision of a Division Bench of this Court in the case of Ananga Bhusan Samant Cinghar Mohapatra v. Uchhab Sahu, reported in 21 Cut LT 328: ((S) AIR 1955 Orissa 179) (A), in which it was held:

"The question whether the partial abatement leads to abatement of the entire appeal depends upon the general principles of law that if the absence of the legal representatives of the deceased respondent prevents the court from hearing the appeal, then the appeal abates in toto. Whether the appeal can or cannot proceed in such a case is dependent upon the principle whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same litigation with respect to the same subject matter, which the Court should avoid".

That was a case in which defendants 1 to 6 in that suit purchased the properties from defendant No. 8 under a sale deed dated 18-12-43 which was a joint purchase by all the six defendants who were in possession of these properties. The suit was a suit for a declaration that the mortgage bond executed by defendant No. 9 was invalid and that the auction sale also was invalid and for recovery of possession. In the judgment which I delivered in that case with which my learned brother Narasimham J. (as he then was) agreed, I observed,

"There is already the decree of the trial Court declaring the mortgage bond valid and binding upon the plaintiff. That