V R Sen, J—The deft. Maruti seeks revn. of the order, dated 3 10-1946, rejecting his appln. for joining Tanabai (pltf. 3) & Gangabai (pltf. 4) as resps. in the appeal passed in civ. App. No. 22-A of 1946.

2. The relevant facts are : Narayanrao, father of Khushalrao & Nilkanthrao, pltfs. 1 & 2, & husband of Tanabai & Gangabai, pltfs. 3 & 4, was the original pltf. He instituted a suit on 3-8 1944 for possession of the property described in Schedule C, of the plaint & for payment of Rs. 2000 as mesne profits. His case was that Gangaram & Gopalrao (father of deft. Maruti) were his brothers. His father Daduji died in a state of jointness with him & his brothers. Gopalrao died in about 1904 in a state of jointness with the pltf. & Gangaram. At his death he left behind two sons, the deft. Maruti & Shamrao. A partition was effected between Narayanrao, Gangaram, Maruti & Shamrao on 28-1-1908. The property shown in Schedule A was allotted to Gangaram. After the date of partition, the parties enjoyed their shares of the property separately as their own property. Shamrao died shortly after the partition in a state of jointness with the deft. Maruti who became the sole owner of the property allotted to him & his brother. Gangaram died on 11.12-1936 without leaving any issue or widow. Narayanrao being the nearest heir of Gangaram was entitled to inherit all his property shown in Schedule B. The deft. had wrongfully taken possession of a part of Gangaram's property described in Schedule C. Narayanrao died on 6-8-1944. Pltfs. 1-4 were his heirs & were brought on the record as pltfs. on 9-12-1944.

3. The suit was resisted on several grounds by the deft. One of the pleas raised was that there was no real partition in 1908 & the property of the family continued to be joint.

4. A decree directing the deft. to put pltfs. 1-4 in possession of the properties described in the Schedule attached to the decree was passed on 2 2-1946 by Civil Judge, Class II, Arvi in civ. S. No. 182-A of 1944. The deft. appealed on 15-3-1946. The appeal was registered on 19-3-1946 & was fixed for hearing on 17-6-1946. Pltfs. 1 & 2 alone were made resps. in the appeal.

5. On 17-6-1946 an appln. was made by the deft. Maruti for the joinder of Tanabai & Gangabai on the ground that through inadvertence they were not joined as respondents in the appeal. The applt. filed an affidavit & a draft of the memorandum of appeal in support of his appln. Tanabai & Gangabai opposed the appln. The material allegations explaining the non-joinder may conveniently be reproduced here:

...The manuscript draft memo, of appeal is filed herewith. It would appear from it that while the title on the front page has been written by Mr. K.G. Chendke, the grounds are in the hand of Mr. M.S. Chendke. It would also appear that in the title of the appeal the names of the two resps. have been mentioned & that after the full name & description of resp. 2 Nilkanthrao, the word 'etc' has been written evidently with the intention that the typist who would type the memo. of appeal should enter the names of the other resps. from the copy of the lower Ct's. judgment in accordance with the usual practice in this connection. It seems, however, that the typist did not either notice the 'etc.' or did not properly understand its object & significance & typed the names of the two resps. only & omitted to type those of the above two ladies from the certified copy of the lower Ct's. judgment. Mr. K.G. Chendke examined the typed memo. of appeal but did not suspect in the least & did not, therefore, notice that the names of the above two ladies were so omitted in the memo. of appeal through oversight. He, therefore, filed the appeal under the bona fides impression that there was nothing wanting so far as the names of the resps. were concerned. The mistake was noticed for the first time by Mr. M.S. Chendke (senior) on the 15th instant when the applt. engaged him for the appeal & when he took it up for studying it.

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