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PETITIONER: HARIHAR PRASAD SINGH AND ORS.

       Vs.

RESPONDENT: BALMIKI PRASAD SINGH AND ORS.

DATE OF JUDGMENT10/12/1974

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. BEG, M. HAMEEDULLAH KRISHNAIYER, V.R.

CITATION:  1975 AIR  733            1975 SCR  (2) 932  1975 SCC  (1) 212  CITATOR INFO :  RF         1979 SC1393  (3,39)

ACT: Hindu Law-Succession-Special family custom, Proof of. Code of Civil Procedure (Act 5 of 1908) O.22 and O.41, rr. 4 and    33-   Failure   to   implead   parties   and    legal representatives-Effect of.

HEADNOTE: A  suit was filed by the plaintiffs claiming to  succeed  to the estate of R, a Bhumihar Brahmin.  The basis of the claim was  a  special custom of the family to  which  the  parties belonged, though under ordinary Hindu Law they would not  be entitled  to Succeed to the estate being related to R  in  a distant  degree For establishing the custom  the  plaintiffs sought to prove 52 instances.  The trial court held that  49 instances were proved and decreed the suit.  The High Court, in appeal, field that none of the instances were proved  and allowed the appeal. In appeal to this Court, apart from the contention that  the High  Court  was  wrong, the  appellants  (plaintiffs)  also contended  that the respondents’ (defendants) appeal to  the High  Court should have been dismissed as parties  were  not properly brought on record; while the respondents raised the preliminary  objection that the appeal to this Court  should be dismissed, because the legal representative of one of the deceased plaintiffs was not brought on record. Dismissing the appeal, HELD  :  1(a)  According  to  the  plaint  the  parties  are descendants of M and the plaint proceeds on the basis of the custom  prevailing  in  the  family of  M.  Out  of  the  52 instances only 3 belonged to the family of M. Merely because the evidence with regard to various branches, which are said to  be descended from P-a remote ancestor who lived five  or six hundred years ago-was let in without any objection  from the  defendants. it could not be assumed or held that  such evidence was admissible.  Besides, the evidence put forward, though  accepted  on  both  sides  with  regard  to  persons descended from P. is more a matter of tradition without much historical  value.  It is of very little  evidentiary  value and of little assistance in deciding the issues in the case.

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The  evidence  to  be  admitted  cannot  travel  beyond  the pleadings,  and  therefore, the only evidence which  can  be taken into account is of the three instances in M’s  family. [935 C-D, H; 936 B; 938 B; 939 C-G] (b)  What  must be proved is that the usage has  been  acted upon  in  practice  for such a long  period  and  with  such invariability As to show that it has, by common consent been submitted  to  as  the established  governing  rule  of  the family.   The  evidence  should be  clear  and  unambiguous, though  instances’ in support of a family custom may not  be many and frequent. [938 G-H; 942 D-E] (c)  The  initial onus of proving the special family  custom lies on the plain-tiffs. [942 E] Ramalakshmi Ammal v. Sivanatha Perumal Sethurava, 14  M.I.A. 570, 585 applied. Puspavathi v. Vishweswar A.I.R. 1964 S.C. 118, followed. (d)  In a case like this it is the documentary evidence that would  show  the actual attitude of the  parties  and  their consciousness  regarding the custom is more  important  than any  oral  evidence that was given in the case.   Till  this case,  the appellants, who are not ignorant persons but  who are  confirmed litigants nowhere made a claim solely on  the basis of the custom which they are now putting forward.   On the  contrary,  they have been siding  with  the  contesting defendants.   Their attitude throughout is  consistent  only with their consciousness that they had no right to any share in R’s estate.  They had not appeared as witnesses and given evidence  where  they would have been the  best  persons  to explain  the  circumstances  relating to  the  instances  or explain  the contents of documents which are not  consistent with the custom pleaded.  Some 933 documents  in  which  nearer  reversioners  seemed  to  have recognised the right of more distant reversioners could  not be relied upon in the absence of any evidence by the parties to those documents. who are parties to the present suit,  as to  why  and how those documents were executed  or  why  the recital,  were  put  in, in  those  documents.   On  earlier occasions,  whenever they put forward a claim it was on  the basis of being near ‘reversioners and sometimes on the basis of  false genealogy than on the basis of custom.  [945  E-G; 948 D-F, H 949 C] The  High Court was. therefore, right in holding that  three instances in the    family of M were not proved and that the custom pleaded was not established. [949 E] 2(a) In the present case one of the appellants  (plaintiffs) died  Ind his widow and son were substituted in  his  place. Thereafter,’ the widow died, after the Hindu Succession Act. 1956  had  come  into force, leaving  a  daughter.  but  the daughter  was  not  added  as a  party.   But  there  is  no substance  in  the  preliminary  objection  raised  by   the respondents  that  because the daughter was not added  as  a legal  representative the appeal to this Court  had  abated. [949 F-950 D] In this case each of the reversioners is entitled to his own specific  share.  He could have sued for his own  share  and got  a decree for it.  Therefore, if one of the  plaintiff’s dies   and  his  legal  representatives  are   not   brought on record the suit or the appeal might abate as far as he is concerned  but  not  as  regards  the  other  plaintiffs  or appellants,  Further  mot,-. the principle that  applies  in this  case is, whether the estate of the deceased  appellant or   respondent  is  represented.   The  principle   is   of representation of the estate of the deceased which need  not be  by ill the legal representatives of the’deceased.   This

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is not a case where no legal representative of the  deceased was on record.  In a case where the person brought on record is  a  legal  representative, it  would  be  consonant  with justice  and  principle  that, in the absence  of  fraud  or collusion.   the  bringing  on  record  of  such   a   legal representative  is sufficient to prevent the suit or  appear from  abating.   The fraud or collusion must be a  fraud  or collusion  between  the appellant on the one  hand  and  the representative of the deceased respondent, who is brought on record.  on  the  other  and  vice  versva,  and  the  fraud contemplated is a fraud or collusion between the parties  on record to the detriment of the legal representatives who has not  been  brought  on record.  It could not  be  said  that failure to bring the daughter on record is fraud on the part of  her  brother  (’who was on record) or  that  he  was  in collusion with respondents, nor can he deprive of her rights by  not  impleading  her as legal  representative  of  their deceased mother.        [951 F-H; 952 G, 954 A-B; 955 B-C] The  State  of  Punjab v. Nathu Ram  [1962]  2  S.C.R.  636; Rameshwar Prasad v. M/s.  Shyam Beharilal Jagannath [1964] 3 SCR  549;  Daya Ram v. Shyam Sundari [1965]  1  S.C.R.  231; Dolai  Molliko v. K. C. Patnai [1966] Supp S.C.R. 22;  Ratan Lal  v. Lal Man Das [1970] 1 S.C.R. 296; Mahabir  Prasad  v, Jage  Ram [1971] 3 S.C.R. 301; Ram Sarup v. Munshi [1963]  3 S.C.R.  858:  N.  K. Mohd.  Sulaiman Sahib v.  N.  C.  Mohd. Ismail  Saheb  [1966] 1 S.C.R, 937 and Karam Singh  Sobir  & Anr. v. Shri Pratap Chand & Anr. [1964] 4 S.C.R., refer- in. (b)  Against the decree passed by the trial court in  favour of the appellants, (plaintiffs) 3 appeals were filed ’in the High  Court  by the respondents (defendants) In two  of  the appeals one of the plaintiffs was not impleaded as I  party. The High Court was correct in holding that the third  appeal atleast,  had not abated because of the failure  to  implead one of the plaintiffs Is respondent in the other two appeals anti  that it was open to the High Court to give  relief  to all  the appellant,, in the High Court (respondents in  this Court  in exercise of its powers under O. 41, r. 33,  C.P.C. [956 B-D; 959 B-C] In  this case, each one of the plaintiff could have filed  a suit for his share or the estate of the deceased.  The  fact that all the reversioners joined together as plaintiffs  and filed  on  suit  does not mean that, if for  one  reason  or another. the suit of one of them fails or abates the suit of the  others  also  fails  or  aibates.   The  decree  is  in substanc  the  combination of several decrees in  favour  of several plaintiffs.  If in an appeal against the decree  one of the plaintiffs is not added is not added as a  respondent it only means that the decree in his 934 favour  cannot be set’ abide or modified even if the  appeal succeeds  against the other plaintiffs in respect  of  their interest.   There would in that case be no conflict  between the decrees as the decree is a combination of many  decrees. In  other words the result of the failure to add one of  the plaintiffs  as a respondent in two of the appeals  would  be that  the  decree granted in his favour by the  trial  court would  stand  but not the decrees granted in favour  of  the other  plaintiffs.  They can be reversed in  those  appeals. There would be no such difficulty in the third appeal and in that  appeal the decree granted in favour of the  particular plaintiff as well as in favour of the other plaintiffs could have  been  reversed.  It was, therefore,  possible  by  the application of the provisions of O.41 rr. 4 and 33, to  have allowed  the appeal in full and given relief not  merely  to

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the  appellants  in  the  third  appeal  but  also  to   the appellants  in the other two appeals assuming that they  had filed those appeals.  It is not a case where the  appellants in those two appeals had not taken the trouble of filing  an appeal and therefore they should not be given the benefit of the  appeal  filed by the appellants in  the  third  appeal. They had filed appeals to establish their rights. it was  by an  oversight in filing those appeals that they hail  failed to  implead  one of the plaintiffs as a party.   To  such  a case, O.41, r.33 clearly applies. [956 C-D; 957 E-H]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 760 to 762 of 1967. Appeal  from  the judgment and decree dated the  27th  July, 1959 of the Patna High Court in Appeal from Original  Decree Nos. 326, 332 and 333 of 1948. S.   C. Misra, Indubhanu Singh, Inderdeo Narain Singh,  Gyan Sudha     Misra and D. Goburdhan, for the appellants. A.   K. Sen (In C.A.No. 760/67), Sarjoo Prasad (In C.A.  No. 761762/67),  Gunteswhar  Prasad  and R.  D.  Datar  for  the respondents. The Judgment of the Court was delivered by ALAGIRISWAMI,  J.-In  the  year 1872 one  Ramdhan  Singh,  a Bhumihar  Brahmin, of village Barhiya in Bihar died  leaving behind  two widows, Mosst.  Manrup Kumari and  Pan’  Kumari, and  about 1700 bighas of land.  Manrup Kumari died in  1923 and Pari Kumari in 1933 Even while Pari Kumari was alive her brother Sunder Singh ,seems to have been managing the estate on  her behalf.  Shortly before her death he managed to  get from  her a deed of release in favour of two  persons,  Gaya Singh  and  Falgu Singh, alleged to be the sons  of  Ramdhan Singh’s   daughter,  Jayanti  Kumari.   In  spite   of   the objections  by  persons  who  claimed  to  be  the   nearest reversioners  of  Ramdhan  Singh’s estate,  the  lands  were recorded  in  their names in the land  revenue  proceedings. This led to a number of proceedings both civil and criminal. Ultimately the reversioners, who are now the respondents  in these appeals, filed five suits, T.S. Nos. 53 and 61 of 1934 and 20, 29 and 41 of 1935 for possession of the estate.   In 1936  another  suit, T. S. No. 37 of 1936 was filed  by  the present  plaintiffs  8 to 12, 15, 16 and 18 to 21  and  Kunu Babu Singh, uncle of the 11th plaintiff.  In that suit  also Gaya  Singh and Falgu Singh were defendants.   In  addition, the  plaintiffs  in T.S. No. 53 of 1934 and  certain  others were  added  as  defendants.  The plaintiffs  in  that  suit claimed  to  be the nearest reversioners to  the  estate  of Ramdban Singh and also that there was a custom prevalent  in the family for a long time that more distant heirs than the Shastric  heirs  of  a person also  joined  the  latter in succeeding  to  the  properties left behind  by  him.   They wanted to be 935 held  as the nearest reversioners to Ramdhan Singh’s  estate and  thus  entitled to the properties left by  Pari  Kumari. That suit failed.  There-, after, the suit out of which  the present appeals arise was filed.  In this the plaintiffs, in T.S.  Nos. 53 and 61 of 1934, and 20, 29 and 41 of 1935  are defendants;  so  also certain alieness from  them.   Certain parties who are related to Ramdhan Singh in the same  degree as  the plaintiffs, are also defendants.  The plaintiffs  in the  title  suits of 1934 and 1935 are the nearer  heirs  of Ramdhan  Singh and are entitled to succeed to his estate  on

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the ground of propinquity-if the ordinary rule of Hindu  Law applied.  The plaintiffs in the present suit as well as  the defendants who are sailing with them are related to  Ramdhan Singh  in  a  distant degree and would not  be  entitled  to succeed to his estate under the ordinary rule of Hindu  Law. Their  claim  is  based  on the plea  of  a  special  custom applying to the family to which the parties belong. According  to the plaint the parties are descendants of  one Choudhry  Mohkam  Singh.  The plaint was  accompanied  by  a genealogical  table which runs into 26 printed pages in  the paper book.  But during the course of the trial evidence has been let in to prove the genealogy from the days of one Pran Thakur  who is said to have migrated to the village  Barhiya about  five  to six hundred years ago from  a  place  called Sajidehpur.   Though  on behalf of the defendants  the  fact that the original family had migrated from Sandehpur was not admitted, a point which is of little importance, it seems to have been generally agreed among the parties that the common ancestor  was Pran Thakur and he lived five to  six  hundred years  ago.   Instances to prove the custom put  forward  on behalf  of  the plaintiffs were given not  merely  from  the family of Mohkam Singh but also from various other  branches said to be descended from Pran Thakur.  The village  Barhiya is  divided  into twelve Tarafs named after twelve  of  Pran Thakur’s  descendants.  The twelve descendants  whose  names these Tarafs bear were not necessarily at the same degree of descent  from  Pran  Thakur but that again is  not  of  much importance.   The parties to this suit belong to  Taraf  Ram Charan but in the plaint it was not the custom of Taraf  Ram Charan that was pleaded but only the custom in the family of Ch.  Mohkam Singh, Taraf Ram Charan being a larger group. Fifty  two instances were sought to be proved on  behalf  of the  plaintiffs.  The learned Sub-ordinate Judge  who  tried the suit held fortythree of them proved.  The learned Judges of  the High Court felt that from a reading of  the  plaint, evidence  in connection with the, instances in  Ch.   Mohkam Singh’s  family only were admissible and ought to have  been gone into.  But as it did not appear that the defendants had objected to the adducing of evidence from the other families and Tarafs and the parties perhaps understood the plaint  to mean  that their common ancestor was Pran Thakur,  they  did not  rest content with examining the instances  from  Mohkam Singh’s  family  only.  Out of the 52 instances  only  three were from among the descendants of Mohkam Singh.  Out of the other 49 instances, nine were from the Taraf Ram Charan, two of  which were held by the learned Subordinate Judge as  not proved.  He, however, held all the three instances 936 from  Mohkam Singh’s family, as proved.  The learned  Judges of  the High Court, however, on an exhaustive review of  the evidence, held that none of the fiftytwo instances had  been established satisfactorily the custom alleged in the  family of  Mohkam  Singh or amongst the by  clear  and  unambiguous evidence so as to be sure of the existence of descendants of Pran Thakur. After  hearing  both  the parties on  the  question  of  the admissibility  of  the  evidence  we  have  arrived  at  the conclusion  that the only evidence which can be taken  ’into account  are the three instances in Mohkam  Singh’s  family. Mohkam Singh himself seems to have been alive over 150 years ago.   When oral evidence is sought to be given  about  what happened some generations ago, it has to be assessed with  a great  deal  of  care, which we shall  now  proceed  to  do. Before  doing so, however, it is necessary to have  a  clear idea as to what was pleaded.  The custom pleaded was put  in

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the following words in paragraph 5 of the plaint               "The  Kulachar  or ancient  family  custom  or               usage with regard to succession which prevails               from  time  immemorial in the  family  of  the               plaintiffs  and defendants First,  Second  and               Third  parties and which has been  invariably               and strictly followed observed and adhered  to               by  the ancestors of the parties and of  which               there  is a clear consciousness in the  family               is  that when a separated male member  of  the               family  dies  without any  issue,  his  estate               devolves in the first instance on his widow or               widows,  if there be any, and on the death  of               the  widow or widows as the case may be or  on               the  death of the said separated male  members               dying  without issue and without  leaving  any               widow the estate reverts to the descendants of               the  father of the said male owner  ’and  they               take  the estate in equal shares  per  stripes               and  not per capital and brothers of the  last               male  owner share the estate equally with  the               sons  and  grand-sons  of  deceased  brothers.               Similarly,  if  the  last male  owner  had  no               brothers  and his reversioners are his  uncles               or cousins the same rule viz. that the  uncles               or  cousins inherit the estate  alongwith  the               descendants  of  the  predeceased  uncles   or               cousins  on the death of the widow  or  widows               and  if there be no widow immediately  on  the               death  of such male owner dying issueless.  in               other  words the rule of Hindu Law  viz.  that               the nearer in degree excludes the more  remote               is  modified  by the Kulachar  to  the  extent               enumerated above." It would be noticed that even the question of the father  or mother of the deceased succeeding is not mentioned. Now let us see if there is anything in the plaint which  had any  reference  to the descendants of Pran  Thakur  or  ’his descendants  in  branches  other than that  of  Ch.   Mohkam Singh.  Paragraphs 1. 2 and, 4 of the plaint are as  follows :               "1. The Plaintiffs and the defendants who  are               Bhumihar Brahmins by caste belong to the  same               family and are               937               descended  from  same common  ancestor.  Thier               relationship will appear from the genealogical               table given at the foot of the plaint.               2.    The  parties  to  this  suit  and  other               Bhumihar  Brahmin residents of village  Burhee               (excepting  those who are descendants  in  the               female line or are recent settlers) belong  to               the  same class of Babhans known as  Dighwaits               and are descended from the same stock.               3. The Dighwait Babhans who migrated to Burhee               were ordinarily governed by the Benares School               of  Hindu  Law but the matters  of  succession               they  followed their respective  Kulachars  or               ancient family customs which have been   prevailing               in  their  families from time  immemorial  and               which   having  acquired  the  force  of   law               modified   the  general  Hindu  Law  to   that               extent." It  would be noticed that in paragraph I the plaintiffs  and defendants  are  said  to  belong to  the  same  family  and

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descended  from the same common ancestor.  As  reference  is made to the genealogical tree and       that   starts   only from  Mohkam Singh, it is obvious that the reference to  the common  ancestor is reference to Mohkam Singh.   From  para- graph 4 it is clear that in matters of. succession  Dighwait Babhans  followed  their respective ancient  family  customs showing  that  each family had its own  custom,  Immediately follows the statement in paragraph 5 earlier extracted which shows  that  what  the plaintiffs are referring  to  is  the ancient  family custom in the family of the  plaintiffs  and defendants  which is the family of Mohkam Singh  as  already explained.  Reference to the male member of the family dying separate  and  issuless in paragraph 6 can  therefore  refer only  to  the  family  of  the  plaintiffs  and   defendants mentioned  in  paragraph 5. Then follows  the  statement  in paragraph  7  which by reference to the  genealogical  table appended to the plaint says that the common ancestor   of the  plaintiffs  and defendants was Chowdhry  Mohkam  Singh. Paragraph  17 again refers to the family custom or usage  of all the male descendants of Ch.  Mohkam Singh being entitled to  inherit the estate.  Paragraph 18 refers to one  of  the five  sons  of  Ch.  Mohkam Singh dying  issueless  and  his property  being  divided  equally per  stripes  amongst  the descendants of the remaining three sons.  Paragraph 20 again refers to defendants’ second party being descendants of  Ch. Mohkam  Singh  and as such entitled ’under the  Kulachar  to inherit   some  share in the estate of Ramdhan Singh.   Even the  prayer is for a declaration about the  ancient  custom, usage  or  Kulachar  in the family  of  the  plaintiffs  and defendants.   Nowhere is there any reference to Pran  Thakur or  his descendants or the twelve Tarafs or even  Taraf  Ram Charan as the one to which the parties belonged.  Issue  (6) in the suit regarding this question is also as follows :               "(6)  Is there any Kulachar or ancient  family               custom  in  the  families of  the  parties  in               contravention of the established principle  of               law  of  succession as alleged  by  the  plain               descended  from-  the, same  common  ancestor.               Their relation-               13-L346 Sup CI/75               938               tiffs  in para 5 of the plaint?  If so, is  it               valid and binding on the parties affecting the               succession  of  the heritage left  by  Ramdhan               Singh deceased ? There  is, therefore, no room at all for any  argument  that the  plaint proceeded on the basis of the custom  prevailing among  all  the  descendants of Pran  Thakur.   It  squarely proceeded  on  the  basis of the custom  prevailing  in  the family of Ch.  Mohkam Singh.  Indeed    the learned Advocate for the appellants stressed again and again that  the plaint was  drafted by a very able advocate and was a very  correct one.  It  is  no  doubt true  that  the  witnesses  for  the plaintiffs as well as    defendants admit that they are  all descended from Pran Thakur. That   seems to be the tradition in the village. It is said that there arc about two thousand families in that village who claim to be descended from Pran Thakur.  Though there is evidence that youngsters  in  these families  are made to learn by heart their genealogy  it  is probably  only   to  the  extent  of  the  names  of   seven generations  which  is necessary in the  case  of  religious ceremonies. Nobody could be remembering the genereallogy  of over twenty generations from the days of Pran     Thakur. At the  most  it is a matter of tradition and hearsay.  We  are saying  nothing  about  the admissibility  or  otherwise  of

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hearsay evidence. Suffice it to say that for the purposes of this  case the evidence  admitted cannot travel  beyond  the pleadings and therefore has to be  confined to the instances in Mohkam Singh’s family. Now  on whom does the burden rest and what is the  scope  of the  evidence that is admissible ? The earliest decision ’on the question   regarding proof of custom in variance of  the general law is found in  Ramalakshmi   Ammal  v.   Sivanatha Perumal Sethuraya (14 Moo.             Ind.  App. 570 @ 585) to the effect:               "It  is  of  the  essence  of  special  usages               modifying the ordinary law of succession  that               they should be ancient and invariable; and  it               is  further  essential  that  they  should  be               established to be so by clear and  unambiguous               evidence. It is      only  by  means  of  such               evidence  that  the Courts can be  assured  of               their  existence,  and that they  possess  the               conditions of antiquity and certainty on which               alone their legal    title   to    recognition               depends." This  passage was quoted by this Court with approval in  its decision  in Pushpavathi Vijayaram v. P. Visweswar (AIR 1964 SC 118)     and this Court went on further to observe :               "In  dealing  with a family custom,  the  same               principle will have to be applied, though,  of               course, in the case of a  family       custom,               instances in support of the custom may not     be               as  many  or  as frequent as in  the  case  of               customs  pertaining to a territory or  to  the               community or to the character  of any  estate.               In dealing with family customs, the  consensus               of opinion amongst the members of the  family,               the traditional belief entertained by them and               acted upon by them   their   statements,   and               their conduct would all be relevant and it  is               only  where  the relevant evidence of  such  a               character               939               appears  to the Court to be sufficient that  a               specific family custom pleaded in a particular               case  would be held to be proved,  vide  Abdul               Hussein Khan v. Bibil Sona (45 Ind.  App. 10 :               A.I.R. 1917 P.C. 181). What is important is that the specific family custom pleaded in a particular case should be proved.  The specific  family custom pleaded in this case is the custom of the ’family’ of Mohkam Singh.  Even though that ’family’ itself consists  of numerous  families  descended from Pran  Thakur  the  custom pleaded  was  not the custom prevailing in the  ’family’  of Pran Thakur.  As we have already mentioned, the  descendants of  Pran  Thakur seem to consist of at  least  two  thousand families  and  it is difficult to use the word  ’family’  in relation  to  such a large agglomeration  of  families.   We might as well talk of the human family.  Be that as it  may, there  was  no  mention  in  the  pleadings  of  the  custom prevailing  among  the descendants of Pran  Thakur.   Indeed nowhere  in the course of earlier litigations or  documents, including  T.S. No. 37 of 1936, is there a mention  of  Pran Thakur  and  his family.  Merely because the  evidence  with regard  to  the  various  branches, which  are  said  to  be descended  from Pran Thakur, was let in, apparently  without any  objection on the defendants’ side, we are not  prepared to  assume or hold that such evidence was  admissible.   The genealogical  tree  from Pran Thakur to Mohkam Singh  is  at

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best of doubtful value even though the tradition among  Pran Thakur’s descendants may be as put forward in the suit.  The earliest  document  which we have examined, Ext. 23  of  the year 1818, shows that even Mohkam Singh had died some  years before  that  and between that date and 1947-1948  when  the present  case  was tried, there have been  six  generations. From  Pran Thakur, who is supposed to have lived  about  5-6 hundred   years  ago  genealogy  is  given  for   only   six generations  that  is,  till the  formation  of  the  twelve tarafs.  That seems to have been over 400 years ago.   Apart from the value to be attached .0, or the reliability of  the evidence regarding this genealogy it is difficult to see any relevance, of this genealogy as there is a gap between  that time  and  Mohkam  Singh’s days.  The  fact  that  a  family belongs  to a taraf can have no significance as a  taraf  is only a portion of the village, and the fact that a taraf  is named after person is no guarantee that all those living  in the  taraf are his descendants.  The evidence  put  forward, even  though accepted on both sides, with regard to  persons descended from Pran Thakur must be held at best to be matter of  tradition  without much historical value and  much  less evidentiary value and of very little assistance in  deciding the  question  at issue in this case.  Similarly,  any  oral evidence  even  if admissible about what happened  in  other branches  of the, family descended from Pran Thakur is  also not  likely  to  be  of  much  assistance  unless  they  are probabilised  by some sort of documentary evidence.   We  do have some documents at least about Mohkam Singh’s family but not  about others.  After bearing the parties on both  sides and  after  looking into the decisions relied  upon  by  the plaintiffs we indicated to the parties that we consider the, evidence  about  instances  other than  those  belonging  to Mobkam Singh’s descendants were not admissible and we  would not  consider  the  evidence with regard  to  the  other  49 instances.  The decisions cited by plaintiffs with regard to the admissibility of evi- 940 dence  in  this case in relation to instances of  custom  in families  other  ’than  those descended  from  Mohkam  Singh contain  certain observations which were relied upon by  the plaintiffs.   The ratio of those decisions  themselves  have nothing  to do with the question of admissibility.   Indeed, it  is difficult to see any ratio in those decisions.   They were  all decisions as to succession which were  based  upon the  conclusions drawn on the basis of the evidence  adduced in those cases.  The decisions contain mostly discussion  on the  evidence  and any observations made in  the  course  of those  discussions should be confined to  the  circumstances and the evidence in those cases and they cannot provide  any guiding  principle in appraising the evidence, of  different facts  and circumstances in other cases.  Even so  we  would refer to those observations and show how those  observations are  relevant  to the facts of those cases and  can  neither serve  as a precedent in this case nor can be considered  to have laid down any principle of law. In Rajah Rup Singh v. Rani Baisin & the Collector of Eatawah 11  Ind.  App. 149) it was held on the evidence in the  case that the raj in question was an ancient raj and an ancestral estate,  and  that  by virtue of an ancient  custom  in  the family it was impartible.  The plaint was to the effect that the  ancient usage of raj of Bliara, ill common  with  other families of the Rajahs was that upon the decease of a  Rajah his  nearest  and eldest male heir succeeds him to  the  ex- clusion of the other male heirs, and that total exclusion of women.  It was contended that a case had occurred in respect

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of  the  raj of Ruh Ruh in which a widow  had  succeeded  in preference to a male collateral.  Ruh Ruh was said to be one of the five branches of which Bhara was also one.  That  was how   the  instance  regarding  the  Ruh  Ruh   estate   was considered.  That decision is a far cry from the present one where evidence regarding 2000 families said to be  descended from  an  almost mythical ancestor are sought to be  let  in without any pleading with regard to it. In Garurudhwaja Parshad Singh v. Saparandhwaja Prashad Singh (7 Ind.  App. 238) it was held :               " on the. evidence. reversing the judgment  of               the  High  Court,  that  the  appellants   had               satisfied  the  serious burden  of  proving  a               special  family  custom of descent  by  primo-               geniture.               The  evidence  shewed  that for  a  period  of               nearly  eighty  years  from the  time  of  the               British  occupation of the district  in  which               lay the estate in suit, the enjoyment had been               consistent  ’with the alleged custom, and  for               the earlier and greater part of that term  had               been inconsistent with any other legal  basis.               Also,  that in two other families in the  same               district,  derived from the same  ancestor  as               the  parties to the suit, the  alleged  custom               prevailed."               It was in connection with these facts that  it               was observed               "A  witness  may state his opinion as  to  the               existence of a family custom, and give as  the               grounds thereof informa-                                    941               tion  derived from deceased persons.   But  it               must be independent opinion based on  hearsay,               and not mere repetition of hearsay; see Indian               Evidence Act, s. 32, sub-s. 5; ss. 49 and  60.               Its  weight  depends on the character  of  the               witness and of the deceased persons." In that case it appeared from the evidence, that the  custom of  primogeniture prevailed in two other  families,  derived from a common  ancestor    and   lent   strong    antecedent probability to the appellant’s case.  In that very case- the Privy Council remarked that "a good deal of the evidence, of statements   made  by  deceased  persons  is   of   doubtful admissibility", and after referring to the evidence of  some of the witnesses the Privy Council said that they would  not be  disposed to place much reliance upon it standing  alone. There  is  all  the  difference in  the  world  between  two families and two thousand families. In Ahmad Khan v. Channi Bibi (52 Ind.  App. 379) it was held that  "the  custom  could  properly  be  proved  by  general evidence  given  by members of the family or  tribe  without proof of special instances." in that case there was a  large body  of  oral  evidence establishing  the   custom,  wholly unrebutted  by the defendants, who relied exclusively     on the district riwaj-i-am on which neither the High Court  nor the          Privy  Council  were  prepared  to  place   any reliance. Suffice it to any          say that the present is not a case where no evidence of specific instances was given but on the other hand evidence was given of a large    number of  instances most of which were held proved by the  learned trial Judge and held not proved by the learned Judges of the High  Court.  We  are not concerned in this  case  with  the custom prevailing        in  a  particular family  or  tribe without instances.

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In Rohan Ali Khan v. Chaudhri Asghar Ali (57 Ind. App. 29)in the case of a dispute in one branch of the two families, one in the         male  line and the other in the  female  line descended from the same       person, who had lived so  long under the same conditions and have           been so closely connected together as to be treated as one community   the evidence of the custom observed by one family was held to be of        high  evidential  value as to the  custom  in  the other. Furthermore, there          was  the   wajib-ul-araiz signed by the descendants of both the families         which strongly  supported  the plaintiffs’ case.  The  distinction between        that  case  and   the  present  one  is  too obvious to need stress. The case in Maharaja Sris Chandra Nandi v. Rakhalananda     Thakur (65  C.L.J.  520) was one where the evidence  given  by  the plaintiffs  supported a family tradition from generation  to generation          and  which  evidence  was  founded  upon information derived from           deceased persons and such tradition  was  also supported by documentary  evidence.  In that case the proof of the tradition was also to  be   found in the documents supporting the statements of deceased      person s. It  is, therefore, not possible to dissociate one aspect  of the  decision  from the other. It is very difficult  to  say whether without the           documentary evidence the  oral evidence regarding proof would have been accepted. 942  In Ajai Verma v. Vijai Kumari (AIR 1939 PC 22) it was  said that  the  proof  of actual instances  of  a  family  custom excluding daughters from the inheritance was not  necessary. For this statement reliance was placed upon the decision  in Ahmad  Khan v. Channi Bibi (supra) to which we have  already referred.    It  was  also  stated  that  the  opinions   of responsible  members  of the family as to the  existence  of such  a  custom, and the grounds of  their  opinion,  though generally  in   are  of a  family  tradition,  were  clearly admissible.   In that case the custom was also  recorded  in wajib-ul-arzes  of  every village owned by a member  of  the family  and  they  were very numerous.   The  Privy  Council referred  to  the probative value of these  village  records which had been recognised over and over again by the  Board. Here  again it is suffice to say that it is not possible  to predict what would have been the decision but for the wajib- ul-arzes. The decision in Musammat Subhani v. Nawab (68 Ind.  App. p.1 was arrived at after elaborate discussion of the evidence in the  case  and examining numerous earlier decisions  on  the point  as  well as Rattingan’s Digest of Civil Law  for  the Panjab  and Wilson’s General Code of the Tribal  Customs  in the   Shahpur  District  of  the  Punjab  There   are   some interesting   observations  therein  which  show  that   the statements  in  the Rattingan’s Digest cannot  be  taken  at their  face  value without reference to  the  circumstances. The, final conclusion of the Privy Council that what must be proved is that the usage has been acted upon in practice for such  a long period and with such invariability, as to  show that  it has, by common consent been submitted to as  I  the established  governing rule of the particular district  with the   modification   that  the  word  ’family’   should   be substituted  for  the word ’district’ holds  good  in  every case.  They also laid down that the initial onus lay on  the plaintiffs to prove the special custom and that does not  in any way help the plaintiffs. We  shall  now  deal with the three  instances  relating  to Mohkam Singh’s family.

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We should probably preface this discussion by saying that in T.S.  No.  37 of 1936 there was a  half-hearted  attempt  to prove the custom and the only instance given was the present instance 10.  It was held not proved and as quite a few  of the  present  plaintiffs  were parties  to  that  suit,  the decision therein would be res-judicata as against them.  But we prefer to discuss the matter and decide it on its  merits because there all the distant reversioners were not  parties unlike in this case. Instance No. 10 is regarding succession to the estate of Dip Narain,  who died leaving behind his widow  Parkalo  Kumari, who  died in the year 1914.  At that time three  nephews  of Dip Narain, Nirsu-plaintiff 8 and Ramnath-plaintiff 9,  sons of  his  brother Ganga, as well as Nunubabu the son  of  his brother  Ajodhya were alive.  Another son of Ajodhya,  named Durga, died leaving a son Radharaman, plaintiff 11.   Bansi, the  third brother of Dip Narain had died as also  his  son, Ramsarup, leaving two sons Sbeokumar and Rajeshwari.   There is an Ekrarnama Ext. 18 dated 14-3-1916 as a 943 result  of  which  Sheokumar  and  Rajeshwari  got   certain properties.  It is to be noticed that Nirsu and Ramnath  are plaintiffs  8  and  9 and Rajeshwari  is  plaintiff  10  and Radharaman is plaintiff 11 and they themselves did not  give evidence  to explain the circumstances under which  Ext.  18 came into existence.  But the most significant fact is  that Sheokumar aid Rajeshwari first claimed that they had  been adopted by Parkalo Kumari and it was thereafter that Ext. 18 came into existence.  If Sheokumar and Rajeshwari were  sure of the custom which is now pleaded, they need not have  made a claim on the basis of their being adopted sons.  They  did not  claim  on the basis of the custom when they  filed  the petition  in  the land registration case.   Ext.  18  itself mentions that Sheokumar and Rajeshwari filed an  application in  the land registration case on the ground that they  were adopted  sons  of  Parkalo  Kumari  and  also   specifically mentions that they have no interest in title to and  concern with  the  estate left behind by the said  mosamat  (Parkalo Kumari)  nor  can they have any.  In the face of  these  two significant  facts we do not think that the mere mention  of the  custom  in  Ext. 18 establishes the  existence  of  the custom  now pleaded.  Ex. 18 does  not say what  the  custom was. There  was some argument at the bar as to what  exactly  the original  word used was, REWAJ DASTURI  or  REWAJ-0-DASTURI, whether  it  was  customary  usage  or  custom  and   usage. Whatever that may be, we are not able to persuade ourselves that  if  there was such a custom as alleged  Sheokumar  and Rajeshwari  would  not have made a claim even in  the  first event  on  the  basis  of the  custom.   As  Rajeshwari  and Sheokumar  have not given- any evidence as to why they  gave up  the claim on the basis of the adoption and the  document itself,  though it mentions custom, does not say  that  they were given some property on the basis of the custom or  what the  custom  was, we would, giving also full effect  to  the express  disclaimer by both of them to any right, bold  that Ext.  18,  does not help to establish the existence  of  the custom pleaded.  We are, therefore, of the opinion that  the learned Judges of the High Court were right in holding  that this instance is not established.   Instance 51 relates to the succession to the estate of Net Singh,  one of the sons of Ch.  Mohkam Singh.  Mohkam  Singh had five sons, Bhairo Narain, Kalyan, Naraindutt, Summer and Net.  According to the plaintiffs Net died issueless and his nephews and grand nephews and great-grand nephews  inherited

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his   property  per  stripes  according  to   custom.    The plaintiffs examined P.Ws. 53, 61 and-64 to prove this.   The evidence  of  P.W.  53  was  not  accepted  by  the  learned Subordinate  Judge,  P.W.  61 said that  he  heard  of  this instance  from Wilayati Babu 10 or 11 years  earlier.   This witness was examined in 1948 and his knowledge was not  even ante-litem  motem.  Moreover, the instance took  place  more than 100 years before he heard of it from Wilayati Babu  and we  find it difficult to agree with the learned  Subordinate Judge that his knowledge is not only based on what be. heard from Wilayati Babu but also on his independent opinion about it.   The  learned  Subordinate Judge does  not  place  much reliance on P.W. 64 who is himself a plaintiff. We are  not able to agree with the learned Subordinate Judge that if  it can be proved that the families of the five 944 brothers were not  joint but we=. separate the defence case must  -be  thrown  out and the plaintiffs’  case  should  be accepted.  The matter is not as simple as that.  Even if Net and his brothers were separate the question is who was alive when Net died.  The learned Subordinate Judge’s decision has simply  proceeded  on  the  basis  of  the,  brothers  being separate.  Nor is his discussion of the importance of  Ext. 23 correct.  When it is stated in Ext. 23, a document of the year  1818  which should have been soon after  Net’s  death, that  his four brothers got 1/2 anna share each out  of  his two  annas share, it of course shows that the brothers  were separate but it also shows that the four brothers were alive at the time of Net’s death and they got his property.  There is  no mention here of other brothers or any of  them  being dead  and the nephews or the grand nephews  succeeding.   We fail  to  understand  how  the  learned  Subordinate   Judge accepted  the  submission  on plaintiffs’  behalf  that  the reference  to  four brothers has been made in the  sense  of their  descendants.  One cannot make out a new case that  is not found there.  Exhibits 7, 9 and 23 all go to prove  that the  family was divided.  But the learned Subordinate  Judge has missed the crucial point that Ext. 23, which is the only document  which  refers  to  Net  dying  issueless  and  his brothers succeeding equally to his property gives not merely the share of the four brothers of Net Singh but also how the descendants of the four brothers divided the property  among themselves.  We, therefore, agree with the learned Judges of the  High Court that when Net Singh died his  brothers  were alive  and  they  got  his share.   It  does  not  make  any difference to the case whether he died separate or not.   It is  also seen that in view of the statement in Ext.  23  the learned counsel appearing for the appellants could not press this  instance  very much.  We, therefore,  agree  with  the learned  Judges  of the High Court that this  instance  also cannot be said to have been proved. The  third instance is instance No. 23 regarding  succession to  the estate of Dr. Rameshwar Singh.  Plaintiffs’ case  is that  %,hen  Rameshwar  Singh died about 25  years  ago  his properties  were  inherited  by his  brother,  Dhunmun,  his nephew  Govind and his grand nephew Harbans.  P.Ws. 21,  24, 64, 68 and 79 were examined on behalf of the plaintiffs.  As against  this  D.W.61,  who was examined on  behalf  of  the defendants, said that Rameshwar died in a state of jointness with  his brother and nephew.  P.W. 24 said  that  Rameshwar and  his  brothers  were living in the same  house  and  the descendants  of his brothers still live in the  same  house. It  I,  therefore, not clinching piece  of  evidence,.   The evidence  of P.Ws. 68 and 79 is not of much use as  they  do not  say  that  they witnessed the  division.   The  learned

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Subordinate  Judge relied on Exts. 43, 28 and 29  series  to find   in  plaintiffs’  favour.   On  the  other  hand   the defendants relied on Ext.  U59, deposition of Harbans Singh, who  is plaintiff No. 50 in this case.  Ext. 43  shows  that Gouri,  Dhunmun  and Harbans’ names were  recorded  in  that document.   There  was also the name of a  stranger  to  the family  recorded in the document.  There are three plots  in this  land more or less of equal area.  With regard  to  one plot  it is mentioned that Harbans is in possession  and  in regard to another plot 945 also  the word "Shamlat" which indicates that  the  property was  undivided. in any case it is not a clinching  piece  of evidence. As  regards  Ext. 28 series the learned Judges of  the  High Court  inspected the counterfoils themselves and found  that the  book which bore the signatures of defendants is  a  re- stitched book and therefore held that it, lost its sanctity. It  was also admitted that the original stiching was  broken and a new book was re-stiched and on seeing the condition of the  counterfoil book the learned Judges did not  place  any reliance  on the receipts contained in them- We  cannot  say that the learned Judges were not justified in doing so.   As against this there is the deposition of Harbans Singh  dated 16-11-1927  (Ext.  U59) in a title suit of 1926.   There  he said that he, Govind and Hari were joint and all their lands were  joint.  On behalf of the appellants much reliance  was placed  upon  the further statement that their  houses  were divided.   But  curiously though Hari is plaintiff  No.  29, Govind’s  son is plaintiff No. 49 and Harbans  is  plaintiff No.  50, none of them gave evidence to explain  either  Ext. U59 or Ext. 43 or 28 series.  We consider that the criticism by-the learned Judges of the, High Court that the  inference drawn  by the learned Subordinate Judge that Ext.  43  shows that  the statement of Harbans in Ext.  U59 was wrong, is  a curious  one  is correct.  Another important  fact  is  that Dhunmun  was one of the petitioners in Ext.  EE and that  he laid  a  claim  to  the property  of  Ramdhan  as  the  next reversioner  and not according to the alleged  custom.   We, therefore,  agree with the learned Judges of the High  Court that this instance has also not been proved. The  significant, point in all these three instances is  the attitude  of the parties concerned.  They did not  come  and give evidence where they would have been the best persons to explain  the circumstances relating to those instances  even though  as  many  as 81 instances  were  examined  on  their behalf.   P.W. 64 was the sole plaintiff to  give  evidence. Till this case started they have nowhere, literally nowhere, made  a claim solely on the basis of the custom  which  they are  now  putting forward.  The documentary  evidence  which shows   the  actual  attitude  of  the  parties  and   their consciousness  regarding the custom is more  important  than any  oral evidence that might have been given in this  case. Considerable stress was laid on behalf of the appellants  on the  fact that some of the defendants I witnesses  had  said that  some  of  the witnesses on the  plaintiffs’  side  are respectable  persons  and they knew the custom  better  than they  themselves  knew.   But such  statements  have  to  be evaluated   in  the  background  of  the  history  of   this litigation.   It  is  true  that  the  defendants,  who  are respondents  in  this  appeal,  also  put  forward  some  10 instances  to  disprove  the plaintiffs’ case  but  did  not succeed in providing them.  But in the first instance it  is for the plaintiffs to prove the existence of the custom  and if they fail to do so they cannot succeed on the basis  that

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the  defendants did not succeed in proving that  the  custom did  not exist.  In any case as we have held that  instances in  families other than those of Ch.  Mohkam Singh  are  not relevant  nothing much depends on it.  We shall now  discuss the attitude of the parties and their consciousness based on their actions at various stages in this litigation. 946 The earliest of these documents is Ext.  EE dated 25-8-1927, a application filed by Dhunmun Singh, father of Hari  Singh, plaintiff  No. 29 praying that the estate of Ram Dhan  Singh may  be  taken  over  by  the  Court  of  Wards.   This  was accompanied by genealogy which is found at page 2780 of  the paper  book.   It is admittedly a false  genealogy  and  was apparantly prepared in order to show that he was the nearest reversioner to Ram Dhan Singh’s estate.  If the present case regarding  the special custom obtaining in the  family  were correct  this  document would certainly have  mentioned  the custom  and dhunmun would have claimed to be reversioner  on the basis of the custom.  That he had to go to the extent of preparing a false genealogy in order to show that he was the nearest  reversioner  falsifies the present case  about  the custom.  It should also be remembered that according to  the case  of the plaintiffs Dr. Rameshwar Singh’s  property  Had been  divided  a few years earlier according to  custom  and Dhunmun was one of the parties involved. The next document is Ext.  E/10 dated, 5.4.1933. This is the dead  of surrender by Pari Kumari in favour of  GaYa  Prasad Singh and Falgu Prasad Singh.  This document was attested by plaintiff  12;  the father of plaintiffs 13 to  15;  Sarobar Saran  ancestor of plaintiffs 16 to 16E; and plaintiffs  29, 38 46 and 50 as well as defendants 4, 11, 26, Jairam  father of  defendant  52 and brother of  plaintiffs  34  and  35, Ramkishori father of defendants 29 to 31 and Kapildeo father of  plaintiffs 22 to 25.  Though attestation by itself  does not impute knowledge of the contents of the document to  the attestors,  it  is  very  difficult  to  believe  that   the attestors  did  not  know its contents.  There  had  been  a number of litigations, both civil and criminal, with  regard to  Ramdhan Singh’s estate by this time and an  attempt  had also  been  made, as shown earlier, to bring  it  under  the Court of Wards.  The fact that Sunder Singh, the brother  of Pari   Kuamri,  was  managing  her  estate  has  also   been mentioned.   The whole history of this case shows that  this is a highly litigious community and they would certainly not have  attested  the  document without knowing  what  it  was about.  If they knew what the document contained they  would have  at  least  at  once seen that  it  was  against  their interest if the custom alleged was true.  On the other  hand if  the custom alleged was not true the  present  defendants would  be the nearest heirs and thus these plaintiffs  would not  mind if somebody else got the property rather than  the present  defendants.  Indeed they may even be interested  in seeing  that they also did not get any share out of  Ramdhan Singh’s  estate.   It is, however, urged on  behalf  of  the appellants that Bisheshwar Singh, father of defendants 7 and 8, whose share comes to half among the defendants, was  also a party to these proceedings on behalf of Gaya Prasad  Singh and Falgu Prasad Singh.  But that was because he was closely related  to  Sunder  Singh, his son  being  married  to  his daughter and he stood to gain more by Gaya Prasad Singh  and Falgu Prasad Singh succeeding than by his own succession. The  next  document is Ext.C dated  29.5.1933  an  objection petition  filed by plaintiffs 8, 10, 11, 16, 18, 19, 20,  21 as well as Prabhu Deo Narain, father of the plaintiffs 13 to 15 and Nuju Babu Singh uncle of 11 th plaintiff.  Along with

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the objection petition a genealogy was                             947 also  filed showing Kalyan Singh, son of Ch.  Mohkam  Singh, as  having,  two  sons Dalip and Niren and  thus  trying  to exclude  the  branch  of Sumer and Bhairo  Narain,  sons  of Mohkam  Singh, as well as Hamir and Maniar, sons  of  Narain Datt.  Admittedly this genealogy is false.  They claimed  as near  and legal heirs of Babu Ramdhan Singh on the basis  of this false genealogy.  Even here there was no mention of the custom now put forward.  It was not necessary to put forward wrong  genealogy  in  order to claim to  be  near  heirs  of Ramdhan Singh if the custom were true. The  next document is Ext.  1 dated 1-7-1933,  an  objection petition  filed by Sia Saran Singh, the 11th defendant.   In this  document  he denied his signature on Ext.   E/10,  the deed  of surrender and alleged fraud on the part  of  Sunder Singh.  Though a custom was put forward in this document  it was  alleged to be custom in the family, in the village  and in  the vicinity and significantly enough he has not  joined the  plaintiffs in this litigation in order to  support  the case  of custom.  Another significant fact is that the  only plaintiff  examined in this case is Chandrika Prasad  Singh, the  1st plaintiff.  His brother, Dwarka Prasad  Singh,  the 2nd  plaintiff had given evidence in the  land  registration case  and  his deposition is marked as  Ext.U/12.  There  he deposed  that if anyone dies issueless the property will  be divided according to Khunt (Branch).  That is apparently the reason why he was not examined.  Another significant fact is that some of the plaintiffs, Ram Khilavan Singh, Ram Kishori Singh,  Nanu  Babu Singh, plaintiff 36,  Ram  Behari  Singh, plaintiff  38 and Deonath Singh gave evidence on  behalf  of Gaya  Prasad  Singh  and  Falgu Prasad  Singh  in  the  land registration  case  as is seen from Exts.U/21,  U/24,  U/52, U/53  and  U/54.  \They did not claim any  interest  in  the estate  as they could have if the custom pleaded were  true. As we explained earlier they were perhaps more interested in the  present  defendants not getting any  share  in  Ramdhan Singh’s  estate  as they had no hope of  getting  any  share themselves, being distant heirs. In  the title suits Nos.53 and 61 of 1934 and 20, 29 and  41 of  1935 filed by the present defendants evidence was  given on  behalf  of Gaya Prasad Singh and Falgu Prasad  Singh  by Badri  Singh,  father  of plaintiffs 5  and  5-A;  Sheobhaju Singh,  plaintiff 3; Jittu Singh, plaintiff 7;  Ram  Pratap, plaintiff 27, Janardan Singh, 34; Deonath Singh belonging to the  family of plaintiff 34; Godawari Singh,  defendant  44; Singheshwar  Singh, plaintiff 46; Vidya Singh, plaintiff  47 and  Ram Behari, plaintiff 38 as is shown by Exts.  U/2,  7, 8,  9,  13, 35, 26, 38, 56, and 57.  None of them  dared  to come  forward  and give evidence in the present  suit.   The criticism  which  we  have  made  earlier as  regards  the attitude  of the plaintiffs in earlier  proceedings  applies here also. In  title suit No. 37 of 1936 filed by some of  the  present plaintiffs,  to which we have already referred, though  they referred  to  a  custom,  they claimed  to  be  the  nearest reversioners according to the Shastras.  The genealogy  tree filed  in  that suit showed Dalip Singh as  son  of’  Kalyan Singh although he is one of the sons of Narain Datt.  It did not refer to the other sons of Mohkam Singh, that is, Sumer, Bhairo  Narain  and Narain Datt.  Dalip was  also  shown  as brother of Niran. 948 In support of their case Ram Nath Prasad Singh, the  present plaintiff 9, who was plaintiff 5 in that suit was  examined.

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Hi  gave evidence saying that Mohkam had two sons,  Net  and Kalyan,  that  Net  died issueless and  that  Sumer,  Bhairo Narain  and  Narain Datt are not Soils of Ch.   Mohkam.   In that very suit Singheshwar Singh, plaintiff 46, Ram  Kishore father  of plaintiff 29, Ramkhelavan Singh, 13th  Defendant, Nanu Babu Singh, plaintiff 36, Badri Singh, plaintiff 5 were examined  on  behalf of Gaya Prasad Singh and  Falgu  Prasad Singh  as  shown by Ext.U/11, 19, 3, 43 and  44.   Sheobhaju Singh,  the present _plaintiff 3 whose deposition is  marked as  Ext.   U/ /, denied the custom now put  forward  by  the plaintiffs. We  should, perhaps, at this stage refer to Ext.16, deed  of sale  by  Zalim  Singh,  4th defendant,  in  favour  of  Ram Khilavan,  13th defendent; Ext.16-A, deed of sale  by  Barho Singh,  5th defendant, to Ram Saran Singh,  12th  defendant; Ext.16-F, deed of sale by Zalim Singh, the 4th defendant, in favour of Bindo Singh, and Ext.16-E, a deed of sale by Zalim Singh  to Ram Saran, 12th defendant.  These  documents  were like  Ext-18  relied  upon very much by  the  appellants  as showing that as the nearest reversioners they had recognised the right of the more distant reversioners. it    should    be remembered that these documentsare allof      the year  1937 when the earlier litigation hadnotended.  The  documents themselves  show that the executants were poor men and  they were  being  financed by the more  distant  relatives.   The documents  themselves purport to be out and out  sale  deeds and  in the absence of any evidence by the parties to  those documents  who are parties in this suit but have  not  given any evidence as to why and how those documents were executed or  the  recitals in those documents were put in  we  cannot place  any  reliance  upon them  as  establishing  that  the documents  show  a recognition by the near  agnates  of  the rights  of  distant  agnates.  They  seem  to  be  documents executed  because  of  the financial help  received  by  the executants  and  partly  perhaps  to buy  up  the  rich  and powerful relatives who might otherwise give trouble.  We are not  inclined  to attach much importance to  them  as  esta- blishing  the custom pleaded.  Ext.17-A does not  carry  the case of the plaintiffs any further. We are, therefore, satisfied that the plaintiffs  appellants have  faded  to  prove the custom pleaded  by  them.   Their attitude   throughout   is  consistent   only   with   their consciousness  that  they had no right to or  any  share  in Ramdhan Singh’s estate.  If they had they would have  joined the plaintiffs in title suits Nos. 53 and 61 of 1934 and 20, 29  and 41 of 1935 or filed independent suits themselves  at the  same time putting forward their claim on the  basis  of custom.  On the other hand they supported the defendants  in those  suits.   It  would  have  occurred  to  the   meanest intelligence that if the defendants in those suits succeeded the  present plaintiffs have no chance of  getting  anything where as if the plaintiffs in those suits succeeded and  if the  custom alleged were true, they might also get a  share. And these are not ignorant men but confirmed litigants.  Not even  one plaintiff among the many who were parties  to  the various documents so far considered has dared to appear as a witness and explain the contents of those documents which 949 are certainly not consistent with the custom pleaded.   Even T.S. No. 37    of  1936 was an half-hearted attempt  by  the present plaintiffs and that was filed only after the success of  T.S. Nos. 53 and 61 of 1934 and 20, 29 and 41  of  1935. They  have  been more consistently siding with  Gaya  Prasad Singh and Falgu Prasad Singh because they knew that they had no  rights and there was no custom and they had  nothing  to

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lose  if  the present defendants-respondents  lost  in  that litigation.  On the earlier occasions whenever they tried to put  forward  a  claim it was on the  basis  of  being  near reversioners  and sometimes on the basis of false  genealogy than  on the basis of custom.  It is easy enough to get  any number of persons to give oral evidence about what  happened many many years ago.  It is difficult to disprove them.   At best it will be a case of hard swearing on either side.   We would  rather  place  reliance  on  the  documents  and  the attitude of the parties  as shown by them.  One has only  to read  the evidence of P.W. 64, the star witness on the  side of the plaintiffs.  The man seems to have an almost computer like memory but we find it difficult to believe him when  he says  that  he kept quiet because he was  promised  a  share after  the title suits filed in 1934 and 1935 succeed.   One man may I have kept quiet but not a host of people on such a promise.   Even  if  promises  were  made  they  would  have insisted on something being   given in writing.  In a highly litigious  village like this people are not likely  to  keep quiet  depending  upon oral assurance  where  valuable  pro- perties  are involved.  They would not support the  case  of imposters  like Falgu Prasad Singh and Gaya Prasad Singh  if they themselves had hopes of getting any share.  It can only be on the basis of the custom which is now being put forward that  they could have got a share.  It is a  baseless  claim and t he plaintiffs have failed to prove the custom    pleaded by them. Before  we  conclude  we  must  refer  to  the   preliminary objectionraised  on  behalf  of the  respondents  that  the appeals should be dismissed and the contention on behalf  of the  appellants  that the appeals before the High  Court  in this  case should have been dismissed and  consequently  the present appeals should be allowed simply on that  ground.The objection  on  behalf  of the respondents is  based  on  the following      facts : Plaintiff No 29. Hari Singh  son of Dhumnun Singh died in      1953. His widow Manmohini  and son Raktoo Singh, appellant 88,    were substituted  in his place on 12.8.1953. With the coming into      force of  the Hindu Succession Act the share of the widow  in  her husband’s  estate became a full estate. Maninohini  died  on 1.11.1967       leaving  behind her daughter  Ghia  Devi and son Raktoo Singh. The     advocate     for      the appellants wrote to the Court that as Raktoo Singh     was the  only heir of Manmohini and he was already on record  it was  not    necessary   to   add   Manmobini’s    legal representatives and her name      may  be struck  off. They did not want to proceed with the application      for adding   legal  representatives.  The  Registrar  also   has recorded that  the  application  was  not  pressed.  On 27.4.1968 the respondents made      an       application stating that the appeal had abated as Manmohini’s daughter Ghia Devi had not been added as party. On 30-7-1968 a  fresh application  %,as  filed  for adding Ghia Devi  as  a  legal representative  and  praying that the abatement may  be  set aside.  This appli- 950 cation  was  dismissed  on  30.8.1968.  The  order  on  that application ,was :               "Delay in making the application for bringing               on  record Mst.  Ghia Devi not condoned.   The               application  for  bringing her  on  record  is               dismissed   on  the  ground  of  delay.    The               question  as to the effect of this order  will               be considered at the time of the final hearing               of the appeals."

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The contention is that as Ghia Devi was not added as a legal representative after her mother Manmohini’s death the appeal had abated as tar as Manmohini Devi was concerned and as the decree  is one and indivisible the whole appeal had  abated. This contention was sought to be  sustained on the basis  of the decisions of this Court in The State Of  Punjab v. Nathu Ram (1962(2) SCR636) and Remeshwar Prasad v. Mls.      Shyam Beharilal  Jagannath  (1964(3) SCR549).   As  against  this, reliance  is  placed  on behalf of  the  appellants  on  the decisions  in Daya Ram v. Shyam Sundari  (1965(2)  SCR231), Dolai  Molliko v. K. C. Patnaik (1966) (Supp) SCR22),  Ratan Lal  v.  Lal Man Das (1970(1)SCR296) and Mahabir  Prasad  v. Jage  Ram  (1971(3)SCR 301).  We consider that there  is  no substance  in the preliminary objection raised on behalf  of the  respondents and it should be rejected.  As was  pointed out  by this Court in Daya Ram v. Shyam Sundari  (supra)  in Ram  Sarup v. Munshi (1963(3)SCR858) one of  the  appellants had  died pending the appeal and his  legal  representatives were      not  brought on record. As the decree was a  joint one and as part of  the decree had become final by reason of the abatement it was held     that the entire appeal must be held  to  have  abated. The State of  PunJab  v.  Nathu  Ram (supra) was a case where a joint decree had been  passed  in favour  of  two individuals and that was challenged  in  the appeal before the High Court. It was common ground that  the appeal    against one of the joint decree holders and abated owing to none of    his    legal   representatives    having impleaded within the time limited by    law and there  being none on record to represent his estate. In such a      ,case the  only  question that could arise would  be  whether  the abatement  which ex concessis took place, as regards one  of the  respondents  should  be confined to the  share  of  the deceased respondent as   against whom the appeal has abated, or whether it would result in the  abatement  of the  entire appeal. This would depend on the nature of   the decree  and the nature of the interest of the deceased in the  property. If the decree is joint and indivisible, the abatement  would be   total.     That  was precisely the question  which  was raised in Nathu     Ram’s case and the decision in Ram Sarup v. Munshi is also in    illustration of the same principle. In  Rameshwar Prasad v. M/s. Shyam Beharilal Jagannath  nine persons  including  instituted  a  suit  for  ejectment  and recovery of rent    against  two defendants and  obtained  a decree. During the pendency   of  the second appeal  in  the High Court K died. His legal representatives not having been added the appeal abated as far be was concerned. When   the appeal   came  up  for  bearing  the  respondents   took   a preliminary objection that the entire appeal had abated. The appellants     claimed  that the appeal was maintainable  on the ground that the stir-                             951 viving  appellants could have filed the appeal  against  the entire decree in view of the provisions of O.41, r. 4 of the Code  of  Civil  Procedure and that  they  were,  therefore, competent  to continue the appeal even after the death of  K and the abatement of the appeal so far as he was  concerned. It was held that the provisions of O.41, r. 4 of the Code of Civil Procedure were not applicable, since the second appeal was filed by all the plaintiffs and the surviving appellants could  not be said to have filed the appeal as  representing K. It was further held that an appellate court had no  power to  proceed  with  the appeal and to reverse  and  vary  the decree  in favour of all the plaintiffs or defendants  under O.41,  r. 4 when the decree proceeded on a ground common  to all  the plaintiffs or defendants, if all the plaintiffs  or

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the defendants appealed from the decree and any of them died and the appeal abated so far as he was concerned under O.22, r.  3. It was also held that the provisions of O.41,  r.  33 were   not  applicable.   The  content-,,on  that  all   the appellants belonged to a joint Hindu family was rejected  in that case.  It was also held that O.41, r. 4 applies to  the stage  when an appeal is filed but that once an appeal  has- been filed by all the plaintiffs the provisions of O.41,  r. 4  became unavailable.  It was also held that if some  party dies  during  the pendency of the appeal  his  legal  repre- sentatives  have  to  be brought on the  record  within  the period of limitation, and if that is not done, the appeal by the  deceased  appellant  abates and does  not  proceed  any further.  In so holding this Court over ruled the view taken by  the Bombay, Calcutta and Madras High Courts  in  Shripad Balwant  v.  Nagu  Kusheba  (ILR  1943  Bom.  143),  Satulal Bhattachariya  v. Asiruddin Shaikh [ILR (61) Cal. 8791]  and Somasundaram Chettiar v. Vaithilinga Mudaliar [ILR (40) Mad. 846] respectively which had held that if all the  plaintiffs or  the defendants appeal from the decree and any  of  them dies  the  appellate court can proceed with the  appeal  and reverse  or vary the decree in favour of all the  plaintiffs or defendants under O.41, r. 4 when the decree proceeds on a ground common to all the plaintiffs or defendants. The  important point to note about this litigation  is  that each  of  the reversioners is entitled to his  own  specific share.   He  could  have sued for his own share  and  got  a decree for his share.  That is why five title suits Nos.  53 and  61  of  1934 and 20, 29 and 41 of 1935  were  filed  in respect  of the same estate.  In the present case  also  the suit  in  the first instance was filed by the  1st  and  2nd plaintiffs  for their 1/12th share.  Thereafter many of  the other  reversioners who were originally added as  defendants were  transposed  as plaintiffs.  Though the decree  of  the Trial Court was one, three appeals Nos. 326, 332 and 333  of 1948 were filed by three sets of parties.  Therefore, if one of the Plaintiffs dies and his legal representatives are not brought on record the suit or the appeal might abate as  far as  he is concerned but not as regards the other  plaintiffs or the appellants.  Furthermore, the principle that  applies to this case is whether the estate of the deceased appellant or  respondent is represented.  This is not a case where  no legal representative of Manmohini was on record.  Order  22, r. 4 of the Civil Procedure Code reads               "4.  (1)  Where ... a sole defendant  or  sole               surviving defendant dies and the right to  sue               survives, the Court, on an               952               application  made in that behalf, shall  cause               the   legal  representive  of   the   deceased               defendant to be made a party               and shall proceed the suit.               4.    (3) Where within the time limited by law               no application is made under sub-rule (1), the               suit  shall  abate  as  against  the  deceased               defendant." As  pointed out by this Court in Daya Ram v. Shyam  Sundari, the  almost universal consensus of opinion of all  the  High Courts  is  that  where a plaintiff or  an  appellant  after diligent  and  bona fide enquiry ascertains who  the  legal representatives  of a deceased defendant or  respondent  are and  brings them on record within the time limited  by  law, there  is  no  abatement of the suit  or  appeal,  that  the impleaded  legal representatives sufficiently represent  the estate  of the deceased and the decision obtained with  them

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on  record  will  bind not merely those  impleaded  but  the entire estate including those not brought on record. It was observed by the Madras High Court in Kadir v.  Muthu- krishna Ayyar [ILR (26) Mad. 230] :               "In  our opinion a person whom  the  plaintiff               alleges to be the legal representative of  the               deceased  defendant and whose name  the  Court               enters on the record in the place of such  de-               fendant sufficiently represents the estate  of               the  deceased for the purpose of the suit  and               in  the absence of any fraud or collusion  the               decree  passed  in such suit  will  bind  such               estate  ........ If this were not the law,  it               would,   in  no  few  cases,  be   practically               impossible to secure a complete representation               of  a party dying pending a suit and it  would               be  specially so in the case of  a  Muhammadan               party  and  there  can be  no  hardship  in  a               provision of law by which a party dying during               the  pendency of a suit, is fully  represented               for the purpose of the suit, but only for that               purpose, by a person whose name is entered  on               the  record  in place of  the  deceased  party               under  sections 365, 367 and 368 of the  Civil               Procedure Code, though such person may be only               one of several legal representative or may not               be the true legal representative."               After  referring to this statement of the  law               this Court in Daya Ram v.               Shyam Sundari went on to remark               "In a case where the person brought on  record               is a legal representative we consider that  it               would be consonant with justice and  principle               that in the absence of fraud or collusion  the               bringing   on   record   of   such   a   legal               representative  is sufficient to  prevent  the               suit or the appeal from abating." In Dolai Molliko v. K. C. Patnaik on the death of one of the plaintiffs  appellants  in  an  appeal  pending  before  the Subordinate   Judge  his  widow  and  the  major  son   were substituted  on  record as heirs.  It was  later  discovered that the deceased had left some other heirs besides the two. The  respondents  raised an objection that as  some  of  the heirs  of the deceased had been left out and there could  be no question of want of ’knowledge of the existence of  these heirs on the part of the 953 widow and the major son who had applied for being brought on record,  the  appeal abated.  It would be noticed  that  the position is exactly the same here.  This Court held :               "The   estate  of  the  deceased   was   fully               represented by the heirs who had been  brought               on the record and these heirs represented  the               absent heirs also, who would be equally  bound               by the result."               It was observed :               "Even  where the plaintiff or  the appellant               has  died  and  all his heirs  have  not  been               brought on the record because of oversight  or               because of some doubt as to who are his heirs,               the  suit or the appeal, as the case  may  be,               does  not abate and the heirs brought  on  the               record fully represent the estate unless there               is  fraud  or  collusion or  there  are  other               circumstances  which indicate that  there  has

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             not been a fair or real trial or that  against               the absent heir there was a special case which               was  not  and  could  not  be  tried  in   the               proceedings." After  referring to the decisions in N. K.  Mohd.   Sulaiman Sahib  v  N. C. Mohd.  Ismail Sahab [1966 (1) SCR  937]  and Daya  Ram  v  Shyam Sundari (supra) the  Court  went  on  to observe :               "It   will  be  noticed  that  there  is   one               difference  between the present case  and  the               two cases on which reliance has been placed on               behalf of the appellants.  This is not a  case               where a plaintiff or an appellant applies  for               bringing  the heirs of the deceased  defendant               or  respondent on the record; this is  a  case               where one of the appellants died and his heirs               have to be brought on record.  In such a  case               there  is no question of any diligent or  bona               fide  enquiry  for  the  deceased  appellant’s               heirs must be known to the heirs who  applied,               for  being brought on the record.  Even so  we               are  of opinion that unless there is fraud  or               collusion  or  there are  other  circumstances               which indicate that there has not been a  fair               or real trial or that against the absent  heir               there  was  a special case which was  not  and               could not be tried in the proceeding, there is               no  reason why the heirs who have applied  for               being brought on record should not be held  to               represent  the  entire  estate  including  the               interests  of  the heirs not  brought  on  the               record.   This is not to say that where  heirs               of an appellant are to be brought on  record               all  of them should not be brought  on  record               and  any of them should be  deliberately  left               out.   But  if by oversight or on  account  of               some  doubt as to who are the heirs, any  heir               of  a deceased appellant is left out  that  in               itself would be no reason for holding that the               entire   estate   of  the  deceased   is   not               represented unless circumstances like fraud or               collusion  to  which we  have  referred  above               exist.               In  the present case there is no  question  of               any fraud or collusion’, nor is there anything               to show that there had not been a fair or real               trial  nor  can it be said  that  against  the               absent  heir there was a special me which  was               not  and could not be tried in the  proceeding               in his absence."               --L346 Sup CI/75               954               It  must  be  made clear  that  the  fraud  or               collusion   mentioned  must  be  a  fraud   or               collusion  between  the appellant on  the  one               hand  and the representative of  the  deceased               respondent  who  is brought on record  on  the               other  and  vice versa.  In the  present  case               failure  to  bring  Ghia  Devi,  daughter   of               Manmohini,  on record cannot be said to  be  a               fraud on the part of her brother Raktoo  Singh               in  collusion with the respondents nor can  he               deprive  Ghia  Devi  of  her  rights  by   not               impleading her as the legal representative  of               their deceased mother.  The fraud contemplated

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             is a fraud or collusion between the parties on               record   to   the  detriment  of   the   legal               representative  who  has not been  brought  on               record.               In  Ratan  Lal  v. Lal  Man  Das  (supra)  the               respondent obtained a joint decree against the               appellant  and  his  partner  M.  Against  the               decree,  the appellant alone appealed to  the-               High  Court.   M was impleaded as  the  second               respondent  in  the  appeal.   The  notice  of               appeal  sent to M was returned unserved.   The               High  Court dismissed the appeal.  This  Court               held :               "The  appeal  could not be  dismissed  on  the               ground  that M was not served with the  notice               of  appeal, nor, in view of the provisions  of               Order 41, Rule 4, could the High Court dismiss               the  appeal  on the ground that  there  was  a               possibility of two conflicting decrees."               and pointed out               "The  object of the rule is to enable  one  of               the  parties  to a suit to  obtain  relief  in               appeal when the decree appealed from  proceeds               on  a ground- common to him and  others.   The               Court  in such an appeal may reverse  or  vary               the  decree in favour of all the  parties  who               are in the same interest as the appellant." This  Court referred to the decision in Karam Singh Sobti  & Anr.  v. Shri Pratap Chand & Anr. [1964 (4) SCR 647],  where it was observed               "The  suit  had been filed both against  the               tenant and the Sub-tenant, being  respectively               the Association and the appellant.  One decree               had  been  passed by the trial  Judge  against               both.   The  appellant had his  own  right  to               appeal from that decree.  That right could not               be affected by the Association’s decision not               to file an appeal.  There was one decree and,               therefore, the appellant was entitled to  have               it   set   aside  even  though   thereby   the               Association  would  also  be  free  from   the               decree.   He  could say that that  decree  was               wrong  and  should be set aside  ’as  it  was               passed  on  the  erroneous  finding  that  the               respondent   had   not  acquiesced,   in   the               subletting  by  the Association  to  him.   He               could  challenge  that decree  on  any  ground               available.      The lower appellate Court was,               therefore quite competent in the appeal by the               appellant  from the joint decree in  ejectment               against him and the  Association, to give  him               whatever     relief      he     was      found               entitled  to, even though the Association  had               filed ’no appeal."               955               In  Mahabir Prasad v. Jage Ram (supra) it  was               held               "Wherein a proceeding a party dies and ode  of               the  legal representatives is already  on  the               record   in  another  capacity,  it  is   only               necessary  that he should be described  by  an               appropriate  application made in  that  behalf               that he is also on the record, as an heir  and               legal representative.  Even if there are other               heirs   and  legal  representatives   and   no

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             application for impleading them is made within               the  period  of limitation prescribed  by  the               Limitation Act the proceeding will not abate." That meets the point raised by the respondents exactly.  The principle is of representation of the estate of the deceased which  need not be by all the legal representatives  of  the deceased.    The  preliminary  objection’   is,   therefore, overruled. The above discussion also meets the plea raised on behalf of the  appellants.  As we have already mentioned, against  the decree of the Sub-Judge First Appeals Nos. 326, 332 and  333 of 1948 were filed before the High Court.  In appeal No. 326 Nirsu Prasad Singh was made a party but not in appeals  Nos. 332 and 333.  The parties seem to have been so confused that only in F.A. No. No. 332 of 1948 an application was made  to implead Nirsu Prasad Singh as a party on tic ground that  he was  not  impleaded as a respondent by  mistake.   This  was dismissed  by the High Court on 1-3-1951.  No body seems  to have  noticed  that Nirsu Prasad Singh had not been  made  a party  in F.A. No. 333 of 1948 also.  This was  noticed  by the  learned Judges of the High Court at the  conclusion  of the  hearing  of  the appeals before it.   The  appeal  was, therefore, listed for being mentioned and the learned Judges brought  this  fact  to the notice of the  parties  and  the appellants in F.A. No. 333 thereafter put in an  application under  Order  41, rule 20 and section 151 of  the  Code  of Civil Procedure for adding the name of Nirsu Prasad Singh as a party.  We will quote the learned Judges on this point :               "Although  left  to ourselves, we  would  have               allowed  this  application  and  added   Nirsu               Prasad Singh as a party in the, appeal even at               that late stage but we did not think it advis-               able  to  adopt this course in view  of  order               dated  1-3-1951 passed in F.A. 332/48 and  we,               therefore,  rejected this application  by  our               order No. 145 dated 22-4-1959 passed in F.A. 3               3  3  /48.  The position, therefore,  is  that               Nirsu  Prasad Singh, plaintiff No. 8 is not  a               party respondent in two of the appeals but  he               is a party in one of the three.  I may  note               that  both parties agreed before us  that  the               appellants is F.A. 332/48 and F.A. 333/48 have               been impleaded as respondents in F.A.  326/48.               Therefore,  even  if  we  dismiss  these   two               appeals on the ground of this highly technical               objection,  it is possible to give  relief  to               the  appellants of these two appeals  in  F.A.               326/48  under order 41 rule 33 of the Code  of               Civil  Procedure.  Since plaintiff No’ 8 is  a               party respondent in F.A. 326/48 along with all               other plaintiffs, there will be no conflict of               decree  and- the result of our  allowing  F.A.               326/48, which has got to be allowed in view of               my findings above,,               95 6               would  be  to set aside the entire  decree  in               favour of the plaintiffs-respondents and  that               can  be done even at the instance of  some  of               the  contesting defendants.  I am,  therefore,               of the view that First Appeals 332 and 333  of               1948  also cannot and should not fail on  this               technical preliminary ground." We  think that the conclusion of the learned Judges  of  the High Court was right.  Against the same decree passed by the learned Subordinate Judge there were three appeals.  In  one

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appeal, that is F.A. No. 326 of 1948, Nirsu Prasad Singh was impleaded as a party but not in the other two appeals.  F.A. No. 326 of 1948 was filed only by some of the defendants  in the suit.  It was, therefore,.possible by the application of the  provisions of O.41 r. 4 and r. 3 3 to have allowed  the appeal in full and given relief not merely to the appellants in  F.A. 326 but also to the appellants in F.As 332 and  333 assuming  that they had not filed these appeals, The  utmost that  can  be  said is that the effect  of  the  failure  to implead Nirsu Prasad Singh as a respondent in F.As. 332  and 333  is  that these two appeals will have to fail  but  that does  not  mean that F.A. 326 has also to fail.  It  is  not even  a case where the appellants in F.As. 332 and  333  had not  taken the trouble of filing an appeal and therefore  it can be said that they should not be given the benefit of the appeal filed by the appellants in F.A. 326.  They had  filed appeals  in order to establish their rights.  It was  by  an oversight  in filing those appeals that they had  failed  to implead Nirsu Prasad Singh as a party.  To such a case O.41, r. 33 clearly applies. The cases where the provisions of O.41, r. 33 can be applied have, it we may say so, been set out correctly after a  very full  discussion by a Bench of the High Court of  Madras  in its  decision in Krishna Reddy v. Ramireddi (AIR  1954  Mad. 848).   Speaking through Venkatarama Aiyar, J., as he  then was, the Court observed               "Though   O.  41,  R.  33  confers  wide   and               unlimited  jurisdiction  on Courts to  pass  a               decree  in  favour  of a  party  who  has  not               preferred  any  appeal,  there  are,  however,               certain well defined principles in  accordance                             with   which   that  jurisdiction   sh ould   be               exercised.  Normally, a party who is aggrieved               by a decree should, if he seeks to escape from               its  operation, appeal against it  within  the               time   allowed  after  complying   with.   the               requirements of law.  Where he fails to do so,               no  relief should ordinarily be given  to  him               under O. 41, R. 33.               But  there are well recognised  exceptions  to               this  rule.   One  is where as  a  result  of               interference  in  favour of the  appellant  it               becomes  necessary to readjust the  rights  of               other parties.  A second class of cases  based               on the same principle is where the question is               one of settling mutual rights and  obligations               between  the same parties.  A third  class  of               cases is when the relief prayed for is  single               and  indivisible  but is  claimed  against a               number  of defendants.  In such cases, if  the               suit is decreed and there is an appeal only by               some  of the defendants and if the  relief  is               granted  only to the appellants there  is  the               possibility   that  there  might   come   into               operation at the same time and with  reference               to the same subject-matter two               957               decrees    which    are    inconsistent    and               contradictory.    This  however,  is  not   an               exhaustive  enumeration of the class of  cases               in which courts could interfere under O.41, R.               33.   Such  an enumeration  would  neither  be               possible nor even desirable.               Considering the question on principle, when  a

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             decree  is  in  substance  a  combination   of               several  decrees against  several  defendants,               there is no reason why an appeal presented  by               one  of  the  defendants  in  respect  of  his               interest  should enure for the benefit of  the               other  defendants  with  reference  to   their               interests.               Thus  where  a  reversioner files  a  suit  to               recover possession of his share of many  items               of  properties  which are  held  by  different               defendants  under different alienations,  some               of which might be valid and others not,  there               is no community of interest between them.  The               plaintiff could have filed a separate suit  in               respect  of each item and impleaded as  defen-               dants  therein only the alienee interested  in               that  item.  In that event, if all  the  suits               were   decreed  but  an  appeal  were  to   be               preferred  against the decree in only  one  of               them  and that appeal is allowed,  that  would               not operate as reversal of the decrees in  the               other  suits; not would there be any power  in               the  Cout  to set aside  those  decrees  under               O.41, R. 33.  It would not make any difference               when  the  plaintiff  has,  for   convenience,                             combined several suits into one." As we have already pointed out, in this case each one of the plaintiffs could have filed a suit for his share of Ramdhan Singh’s  estate.  The fact that all the reversioners  joined together as plaintiffs and filed one suit does not mean that if for one reason or other the suit of one of them fails  or abates  the suit of the others fails or abates.  The  decree is in substance the combination of several decrees in favour of, several plaintiffs.  If in an appeal against the  decree one of the plaintiffs is not added as a respondent, it  only means  that the decree in his favour cannot be set aside  or modified   even  if  the  appeal  succeeds   against   other plaintiffs  in  respect of their interest.  There  would  in that  case be no conflict between the decrees as the  decree is a combination of many decrees.  In other words the result of the failure to add Nirsu Prasad Singh as a respondent  in F.A.  332 and F.A. 333 would be that the decree  granted  in his favour by the Subordinate Judge would stand but not  the decrees granted in favour of the other plaintiffs.  They can be reversed in those appeals.  There was no such  difficulty in F.A. 326 and, in that appeal the decree granted in favour of  Nirsu  Prasad  Singh  as well  as  in  favour  of  other plaintiffs  could  have been reversed.  This is not  a  case where a party who is aggrieved by a decree fails to file  an :appeal  within  the  time allowed by law  and  should  not, therefore, be granted relief under O.41, r. 33. We  do  not  think  that the decision  relied  upon  by  the appellants  in  Jhinghan Singh & Anr.  etc.  v.  Singheshwar Singh &’Ors. etc. (C.A. Nos. 1 14-122, of ’1 958 decided  on 20-4-1965)  helps the appellants.  In that case  Singheshwar Singh was one of-the appellants in C.A. Nos. 114 and 115 and respondent  in the others appeals.  Kaushal  Kishore  Prasad Singh was-one of the appellants in C.A. Nos.’116 and 117 and a res- 958 pondent in the other‘ appeals.  Both- of them died and  the pending   appeals   abated  against  them.    The   contest’ respondents  took  the preliminary objection  that  all  the appeals  had become defective for non-joinder of  the  legal representatives  of  Singheshwar Singh and  Kaushal  Kishore

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Prasad Singh and this objection was accepted.  The  decision proceeded on the basis that the plaints in the several suits raised a dispute between a body of landholders claiming khas possession of the lands and a number of persons claiming  to be  occupancy  tenants  thereof,  that  in  substance,   the plaintiffs  asked  for an adjudication that the  lands  were bakasht  and the first party defendants were  not  occupancy tenants and to such suits all the landholders were necessary parties.   It  was  therefore held that as  in  the  appeals before  this Court the landholders claimed the  same  relief which  they sought in the trial Court and in  those  appeals also Singheshwar Singh and Kaushal Kishore Prasad Singh were necessary   parties,   in  the  absence   of   their   legal representatives the appeals were not maintainable.  It would be seen that the two appellants whose legal  representatives were not added as parties were parties in all the four suits and  in all the four appeals and the question was  a  common question  to  which  all the  land  holders  were  necessary parties.   As  we  have explained earlier that  is  not  the position here.  The decision in Kishan Singh & Ors. v. Nidhan Singh & Ors. (C.A.  No.  563  of 1962 decided  on  14-12-1964) and  the statement  of  law laid down by this Court  therein  in  the following terms :               "Mr.    Bishan  Narain  points  out  that   in               substance,  the  present suit is  between  the               landholders  on  the one hand  and  those  who               claimed to be occupancy tenants on the  other.               It  is true that the plaint alleges  that  the               occupancy  rights  were  extinguished  on  the               death  of  the last  occupancy  tenant  Narain               Singh,  but  that  has  been  denied  by   the               appellants,  and in fact, round  this  dispute               the  whole controversy centres in the  present               suit.  There is no doubt that the  allegations               made  in  the  plaint clearly  show  that  the               dispute  is  between the landholders  and  the               person who claim to be occupancy tenants, and               so,  it  is plain that in such a  dispute  the               whole  interest  of the  landholders  and  the               whole   interest  of  the  tenants   must   be               adequately  represented.  The  tenancy  rights               which the appellants claim are no doubt  based               on  the  presumption  under s. 5  (2)  of  the               Tenancy Act.  But the relationship in  respect               of which the said presumption would arise is a               relationship of landlord and tenant, and  this               relationship in the very nature of, things  is               one and indivisible.  Therefore, when a  claim               is               made to evict the persons who allege that they               are  tenants  the  whole  of  the   landlord’s               interest must be before the was  cited  with approval in- Jhinghan Singh  Anr.  etc.  v. Singheshwar  Singh  &  Ors. etc. ,  (supra).   It-does  not, therefore  stand on any different footing. hold,  therefore, that  the learned Judges of the high court were  correct  in holding that at least F.A. 326 had not abated because of the failure  to  implead Nirsu Prasad Singh as a  respondent  in F.As.  332 and 333 and it was open to the Court in F.A.  326 in exercise of its powers under O.41, r. 33 to give all  the appellants therein, that is, the respondents in the  appeals before  this Court, the relief that the appellants  in  F.A. 326  were  entitled  to.  The plea  of  the  appellants  is, therefore, overruled.

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In the result the appeals are dismissed with costs, one  set hearing fee. V.P.S. Appeals dismissed. 960