( 1 ) THE facts giving rise to this appeal are that Bhawarsingh, the defendant No. 1 who is now appellant No. 1 in this appeal, had two sons, namely. Audhram and basant, who are both dead. Audhram died in 1948 leaving behind his widow pilabai, who is the plaintiff-respondent. Basant died leaving behind his son bhuwan. Bhuwan also died leaving behind his son Ghiwchand, who was defendant no. 2 and is now appellant No. 2. The suit was filed by Pilabai, widow of Audhram, against Bhawarsingh and Ghiwchand for partition of joint family property. A preliminary decree was passed in the suit on October 31, 1964 by which the plaintiff was declared to have 1/3rd share in the property. The preliminary decree for partition was confirmed by the Second Additional District Judge, Durg, in first appeal. The defendants then came up in second appeal.

( 2 ) THE only point raised in the memo of appeal was that Bhawarsingh's wife dheliyabai was not impleaded in the suit and, therefore, the suit was defective. It is now pointed out the Dheliyabai died during the pendency of the appeal on december 2, 1966. This fact is not disputed by the learned counsel for the plaintiff-respondent. The a