Judgment. - The relationship between the parties will appear from the following pedigree:

2. This appeal has arisen out of a suit instituted by Dharam Deo Singh on 24-2-1947, against Sm. Shyam Rathi, and against his grandfather, Timal Singh, and his uncle Nandan, for the possession of the property conveyed by a deed of gift, executed by Timal Singh and Nandan in favour of Sm. Shyam Rathi. The plaintiff alleged that the property conveyed by the deed of gift was joint family property, which the donors had no right to transfer. He prayed that he might be put in joint possession of the property along with his grandfather, Timal Singh, and his uncle, Nandan. Timal Singh and Nandan were thus arrayed as pro forma defendants, the relief having been claimed only against Sm. Shyam Rathi, who alone contested the suit,

3. Timal Singh died on 11-7-1947. The plaintiff thereupon made an application on 11-8-1947, to the Court alleging that he and Nandan alone were the legal representatives of the deceased and that they were already parties to the suit, and praying that Timal Singhs name be struck off the array of defendants. 28-10-1947, was fixed for orders upon this application and no objections having been filed to it by Sm. Shyam Rathi, the Court should have ordered on that date that Timal Singhs name be struck off the array of defendants. The Court, however, omitted to pass necessary orders and the name of Timal Singh continued on the record until the date of the judgment of the lower appellate Court, now under appeal, and perhaps continues even now.

4. On 25-8-1947, after the death of Timal Singh, Nandan executed a deed of adoption, in which he stated that he had adopted as his son Sahab Singh, the grandson of Sm. Shyam Rathi, on 20-8-1947. Thereafter, Nandan also died on 8-10-1947. The plaintiff seems to have been unaware of this adoption and in ignorance of this adoption he applied on 28-10-1947, that the name of Nandan deceased be also struck off the array of defendants. Issues were framed in the case on that very day. It appears that after the counsel for the plaintiff had left the Court, an application was made on behalf of Sm. Shyam Rathi, stating that Nandan had left behind him an adopted son, Sahab Singh. The Court allowed time upto 15-11-1947, to the plaintiff to file objections to this application, but no notice of it appears to have been given to the plaintiff.

5. When the hearing of the case started on 9-1-1948, the counsel for Sm. Shyam Rathi did not refer to the application in which it was stated that Nandan had left behind him an adopted son and the case was allowed to proceed. After the evidence was over and when the case was taken up for arguments three days later, on 12-1-1948, the learned counsel for Sm. Shyam Rathi referred to that application and contended that inasmuch as no objection to that application had been filed and the adopted son of Nandan had not been brought on the record, though more than ninety days had elapsed since Nandans death, the suit had abated. The plaintiff protested that he had no notice of the application. The Court thereupon fixed a date for the hearing of the objection.

6. The plaintiff disputed the adoption. The Court proceeded to record evidence upon that point and having decided on 3-4-1948, that Sahab Singh was adopted by Nandan, made an order that the suit had abated, because Sahab Singh had not been brought on the record within the prescribed period of limitation.

7. It is obvious that not only is the order passed by the Court absolutely wrong, but also that it has acted illegally and with material irregularity in the exercise of its jurisdiction in ordering that the suit had abated. Order 22, R. 4, Civil P. C., provides:

"(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in tha