( 1 ) THIS is a defendants appeal arising out of a suit for accounting under Section 33 of the U. P. Agriculturists Relief Act.

( 2 ) IN 1894 two persons Badriman and Moharman usufructuarily mortgaged their plots in dispute, which were at that time their sir plots, to Deoki Nandan, Nageshwar and Ram Lagan. Possession over the plots was taken by the mortgagees. In the year 1909, the equity of redemption of the mortgagors was sold at an auction sale and purchased by one Chandrabali Dube. It does not appear that the mortgagors claimed any exproprietary rights on the sale of their proprietary rights in the equity of redemption in 1909. On the 13th September 1944, the suit which has given rise to this appeal was brought by the successors of the original mortgagors against Nageshwar, indrajit and Ganga Upadhya sons of Ram Lagan, and Mt. Kunta Upadhyan widow of Deoki nandan, mortgagees. The plaintiffs case was that on account of the sale of equity of redemption in 1909, the rights of exproprietary tenancy arose in their favour and as there was an outstanding mortgage upon the property, the exproprietary tenancy right remained in abeyance and that they were still ex-proprietary tenants of the plots and entitled to redeem the mortgage. They, therefore, alleged that they were entitled to sue for accounting under Section 33 of the U. P. Agriculturists Relief Act.

( 3 ) THE defence was that no right of ex-proprietary tenancy accrued in favour of the plaintiffs and they were not entitled to sue and further that the purchaser had already recognised the mortgagees as his tenants.

( 4 ) THE trial Court found that the plaintiffs were entitled to sue because exproprietary tenancy rights had accrued in their favour when the equity of redemption was sold in 1909. It also found that the whole mortgage amount has been satisfied by the usufruct of the mortgage and consequently it was declared that nothing was due under the mortgage deed. This decree was affirmed in appeal by the lower appellate Court. The defendants mortgagees have, therefore, come up in appeal to this Court.

( 5 ) DURING the pendency of the appeal in this Court, two of che appellants died, namely, nageshwar appellant No. 1 and Mt. Kunta Upadhyan appellant No. 3. Their heirs were not brought on the record and one of the points raised in the appeal on behalf of the respondents was that the appeal had abated on account of the heirs of these two appellants not shaving been brought on the record. We are satisfied that the appeal has not abated. The suit was for accounting and the appellant No. 2 who is alive, could appeal for setting aside the decree of the court below on behalf of the other appellants. The appeal can proceed in the absence of the deceased appellants. It is not disputed that the appellants were members of a joint Hindu family. The remaining appellant, represents the interest of the joint Hindu family.

( 6 ) THE main question in the appeal is whether the plaintiffs-respondents had a right of suit. When the usufructuary mortgage of 1894 was executed, the N. W. P. Rent Act, No. XII (12) of 1881, was in force. Section 7 of that Act dealt with the accrual of exproprietary lights. It has been held by this Court that exproprietary rights did not arise under that section upon the execution of a usufructuary mortgage, vide madho Bharthi v. Barti Singh 16 All 337 (F B ).

( 7 ) WHEN in 1909, the equity of redemption was sold, the N. W. P. Tenancy Act, No. II of 1901, had come into force. Under Section 10 of this Act, exproprietary rights arose in sir land when proprietary rights of a proprietor were transferred.

( 8 ) IT may be assumed that the mortgagors whose rights were sold at auction in 1909 were proprietors even though they had transferred possession over the sir plots to the mortgagees under the usufructuary mortgage of 1894. By the execution of the usufructuary mortgage they did not cease to be proprietors. It was contended that he ceases to be a proprietor be