In a suit for partition, all persons interested in the property are necessary parties. Failure to bring the legal representatives of a deceased party results in a partial abatement of the suit or appeal. The effect of the partial abatement on the appeal depends on the nature of the claim and the relief sought. If the appeal can be decided without interfering with the interests of others, it may proceed. However, if the appeal cannot be decided without affecting the interests of the deceased party or other parties, the entire appeal abates.

1. This is a Letters Patent appeal against the judgment and decree, dated 5th November 1942, passed by Digby J., in Second Appeal No. 557 of 1939.

2. The case out of which this appeal arises had a long and chequered history. The case involved complicated question of title which turned on the decision of difficult questions of fact and law arising out of the Muhammadan law. These questions have not been decided in second appeal which has been disposed of on the ground that Civil Appeal No. 31A of 1937 had abated as a whole.

3. The appeal arises out of a suit for partition and separate possession. The value of the property to be partitioned is not large. The area sought to be partitioned is small. The question involved in this appeal is, however, important.

4. For a proper understanding of the point involved in this appeal it is necessary to set out the following genealogical tree:

KARIMBI = RUSTAM = ASMATBI |_______________________________________________ | | | | Kalloo (deft. 2) | | | Rahim = Malobi (plff. 1) Gulam Nabi Nyajbi (plff. 5) Bunobi Aminuddin | | Halimabi (plff. 2) Sirajuddin (plff. 4) | ___________________________________________________________ | | | | Hanifabi (plff. 6) Ayeshabi (plff. 7) Julekhabi (plff. 8) Gulam Mustafa (plff. 9)

5. The plaintiffs filed Civil Suit No. 269A of 1934 on 23rd April 1934 in the Court of Sub-Judge 2nd Class, Daryapur, for partition and separate possession of their share in the shop, marked ABCDEF in the map filed with the plaint, at mauza Yeoda, tahsil Daryapur. The plaintiffs claimed that they were entitled to 2215/2880th share in the shop and that Kalloo, defendant 2, was not entitled to more than 665/2880th share therein.

6. Saikh Kalloo is the son of Rustam by his second wife, Asmatbi. Rahim, Gulam Nabi and Bunabi were the sons and daughter of Rustam by his first wife Karimbi. Saikh Kalloo is, thus, their half brother. Gous Mohmad was defendant 1 who had purchased the western half of the southern portion of the shop from Saikh Kalloo under the sale-deed dated 13th June 1932. Saikh Kalloo admitted the claim of the plaintiff's. Gous Mohmad, defendant 1, however, resisted the claim of the plaintiffs on various grounds which need not be stated as they are not material for the purpose of this appeal.

7. The trial Court by the judgment dated 8th October 1935 held that the plaintiffs were entitled to 6 annas 4 pies share in the shop, that Gous Mohmad was a transferee in good faith and for consideration, that he was in possession of the red portion marked A B M F, an area less than even 1/6th of the entire site and less than the share of Kalloo, and that the plaintiffs were not entitled to claim any portion in possession of defendant 1. Accordingly, the Court passed a decree on 8th October 1935 declaring that the partition of the shop ABCDEF shall be so effected as to allot the red portion ABM F in the plaintiffs' map to defendant 1 through defendant 2 and directed the plaintiffs to pay Rs. 53 as coats to defendant 1.

8. Before the decree was passed on 8th October.1935, Hanifabi, plaintiff 6, had died on 7th April 1935. No application had been made under Sub-rule (1) to Rule 3 of Order 22, Civil P.C. 1908, to bring on the record her legal representatives. As no such application was made the suit abated under Sub-rule (2) so far as the deceased Hanifabi, plaintiff 6, was concerned. Apparently the trial Court was not informed of the death of Hani-fabi and the decree was passed in ignorance of her. death and of the partial abatement of the suit, so far as Hanifabi was concerned.

9. Civil Appeal No. 21A of 1935 was filed on 4th November 1935 against the decree, dated 8th October 1935 purporting to be by the plaintiffs including Hanifabi, who had already died. The Court of the Additional District Judge, Daryapur, by the order dated 31st' September 1936 remanded the case for a fresh decision on merits. After remand, the trial Court passed a preliminary decree for partition on 2nd August 1937.