http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 17  

PETITIONER: RAMAGYA PRASAD GUPTA & ORS.

       Vs.

RESPONDENT: MURLI PRASAD

DATE OF JUDGMENT03/04/1972

BENCH: PALEKAR, D.G. BENCH: PALEKAR, D.G. VAIDYIALINGAM, C.A. MATHEW, KUTTYIL KURIEN

CITATION:  1972 AIR 1181            1973 SCR  (1)  63  CITATOR INFO :  RF         1974 SC1320  (5)  RF         1979 SC1383  (3)

ACT: Appeal-Abatement-Legal  ’representative  of  respondent  not impleaded within period of limitation-Appeal when abates.

HEADNOTE: An  electricity undertaking was purchased by  M  (respondent No. 1 herein) and by a notification of the Bihar  Government dated   13-4-1945  he  was  made  the  sole   licensee.    A partnership  of five persons formed to purchase and run  the said  undertaking  was in 1950 enlarged to  consist  of  ten partners,  P, who held a one-anna share in  the  partnership filed a suit in 1954 for dissolution of the partnership  and rendition  of accounts, impleading as defendants  the  other nine  partners including M., He also impleaded as  Defendant No.   10   T  to  whom  he  had  allegedly   sold   3   pies share,out  of  his one-anna share.  J and his  two  brothers share  in P’s one-anna share in the partnership.   According to them Ps share was held on behalf of a Hindu joint  Family of which they had been members.  They challenged the alleged transfer of 3 pies share to T. The trial court impleaded and his  brothers at Defendants 12 to 14.  M consisted P’s  suit by claiming that he was the sole or proprietor and  licensee of the concern, that the alleged partnership was in contra- vention  of  the Electricity Act and invalid,  so  that  the plaintiff  and the other defendants had no lawful  claim  to the  assets  of the partnership.  The suit Was  decreed  and Defendants  12 to 14 were held entitled to a 6  pies  share. M’s  own  separate suit for a declaration that he  was  sole proprietor  was  dismissed by, the Court.  M  filed  appeals against  the  decision in both the suits.   The  High  Court allowed  his appeals and held the partnership to be  illegal and M to be the sole proprietor of the concern.  The present appellants filed appeal, in this Court.  J and his  brothers were  impleaded in the appeal arising out of P’s suit.   But after  J’s death in 1969 his legal representatives were  not impleaded by the appellants within the period of limitation. M contended that the appeals had abated, not only against  J but as a whole. HELD:     Per  Vaidialingam  and Palekar  JJ  :-The  appeals

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 17  

could not be proceeded with and must be dismissed. As pointed out by this Court in Nathu Ram’s case it is’  not correct  to  say that the appeal abates  against  the  other respondents.  Under certain circumstances the appeal may not be  proceeded with and is liable to be dismissed.  But  that is  not because of the procedural defect but, as  Mulla  has pointed  out,  it  is  part of  the,  substantive  law.   No exhaustive  statement  can be made as to  the  circumstances under which an appeal in such cases cannot proceed.  But the courts,  as pointed out in the above decision, have  applied one  or  the  other of three tests.   The  Court  will’  not proceed  with an appeal (1) when the success of  the  appeal may  lead to the court’s coming to a decision which will  be contradictory  to  the decree which had  become  final  with respect to the same subject matter between the appellant and the  deceased respondent  (2) when the appellant could  not have  brought  the action for the necessary  relief  against those  respondents alone who are still before the Court  and (3) when the 64 decree  against  the surviving respondents,  if  the  appeal succeeds,  be  ineffective that is to say it  could  not  be successfully executed.  These three tests as pointed out  by this  Court  in Pandit Sri Chand’s case are  not  cumulative tests.   Even  if  one of them is satisfied  the  Court  may dismiss the appeal. [69C-F] The Slate of Punjab v. Nathu Ram       [1962] 2 S.C.R., 636, applied. Ors., [1966] 3 S.C.R. 451 at 455, referred to. At the time of filing his suit P was no longer the Karla  of the   family  and  could  not  represent  the  interest   of Defendants  12 to 14.  When in the suit Defendents 12 to  14 were made parties and after contest between them and P their share  had  been awarded to them as against P, it  would  be idle  to say, as was contended on behalf of  the  appellants that  for  the purposes of the appeals Defendants 12  to  14 would not be necessary parties.  In the present appeals  the Court had to proceed on the footing that J had been declared to have a share in the partnership assets in his own  right. It  is  settled  law that a  suit  brought  for  partnership accounts after a necessary party defendant has been omitted, is  liable to be dismissed.  The same consideration  applies to  an  appeal  arising out of  a-suit  for  dissolution  of partnership  and  accounts.   Having  regard  to  the  clear position  of  law in this respect the failure  to  bring  on record the heirs or legal representatives of deceased  J-one of  the  sharers  in the subject  matter  of  the  suit-must inevitably lead to the dismissal of the appeal.  That  bring the  case  squarely in the second test referred to  in  the decision of this Court in Nathu Ram’s case. [71D; 72E;  73B; D-E; 74C] Ramdoyal  v.  Junmenjoy Coondoo, I.L.R. 14, Cal.  791,  Amir Chand v. Baoji Bhai, A.I.R. 1930 Madras 714, Rai Chander Sen v.  Gangadas Seal and others, 31 Indian Appeals 71 and  Kunj Behari  Lal  v.  Ajodhia Prasad,  XXI  I.L.R.  Lucknow  453, referred to. In  all such cases even the first test would  be  satisfied. There  is a High Court decree which says that neither J  nor anybody  else was entitled to a share in the subject  matter as  against M who is held to be the sole proprietor  of  the business.   If  the present appellants were  to  succeed  it would  lead to the Court’s coming to a decision.   That  the deceased J was entitled, to a share in the subject matter of the  ’suit  as against M and the  other  alleged  partners-a decision which would be in conflict with the decision of the High  Court  and will be contradictory to it though  it  has

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 17  

become  final with respect to the subject matter  between  M and the deceased respondent. [74D-E] Per Mathew J., (dissenting)- It  was  a  fallacy to think that  if,  these  appeals  were allowed the only course open to this Court would be to  pass a decree reversing the decree of the trial court which  gave a  share  to J. This Court can very well pass  an  effective decree  for dissolution of the partnership and  declare  the shares   to   which  the  partners  are  entitled   in   the partnership,  leaving  the  legal representative  of  J  and defendants  12  to 14 to a separate suit to work  out  their rights in the one anna share of P. Under Order 41 rule 33 of the Code of Civil Procedure this Court, as appellate  Court, has  power to pass any decree or make any order as the  case may  require  The case therefore did not satisfy  the  first test mentioned in Nathu Ram’s case. [79E-G] 65 It  is settled law that when the manager of a  joint  family becomes partner in a firm the other members of the family do not thereby become partners therein although they might have interest  in his share in the partnership.   The  appellants could have brought an action for dissolution of  partnership and  for  rendition of accounts and  obtained  an  effective decree without J on the array of parties Defendants 12 to 14 had  no right to a share in the partnership assets.  It  was the one anna share of P that was divided between them and P. That  understanding  must  precede the  process  of  judging whether  J  was a necessary party to the suit  or  to  these appeals.  Looked at in this manner the second test in  Nathu Ram’s case was also not satisfied in this case. [80A-81B] Apart from the above consideration there was no abatement of the present appeals in view of the decision of this Court in Mahabir Prasad’s case. [81C] Mahabir Prasad v, Jage Ram and Others. [1971] 1 S.C.C.  265, applied.

JUDGMENT: CIVIL  APPELLATE JURISDICTION           C.As. Nos.  1711  of 1967 and 1985 of 1968. Appeals  from the Judgment and Decree dated the May 7,  1965 of the Patna High Court in Appeal from Original Decree  Nos. 160 and 161 of 1959. S.   N.  Prasad  for  the appellants (In C.A.  No.  1711  of 1967). U.   P.  Singh,  for  the appellants (In C.A.  No.  1985  of 1968). S.   T. Desai and M. B. Lai, for respondent No. 1 (In both the Appeals). B.   P. Singh, for respondent No. 2 (in both the Appeals). P.   C. Bhartari, for respondent Nos. 9 ad 1 0 (In C.A.  No. 1711 of, 1967). S.   C.  Agarwala and V. J. Francis, for respondent  No.  17 (In C.A. No. 1985 of 1968). The Judgment of Vaidialingam and Plalekar, JJ. was delivered by Palekar J. Mathew, J. delivered a dissenting opinion. Palekar, J.-Civil Miscellaneous Petitions have been filed in the above appeals for an order that the appeals have abated. A few facts are necessary to be stated.  The Chapra Electric Supply  Works Limited had a licence from the  Government  of Bihar  for the electrification of the Chapra town.  In  1944 the Company went into voluntary liquidation and the  concern was put up for sale by public auction by the Liquidator.  On 15-9-1944  one Murli Prasad gave the highest bid and  with

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 17  

the consent of the State 66 Gover  the  concern  was purchased by Murli  Prasad.   By  a notification  dated 13-4-1945 Murli Prasad became the  sole, licensee. The case was that for the purposes of purchasing the concern and to carry on the business some five persons entered  into a partnership on 11-7- 1945.  The partners were ( 1 )  Murli Prasad,  (2)  Ajodhya  Prasad,  (3)  Parasnath  Prasad,  (4) Charbharan Sah and, (5)  Nand Kishore Prasad. In August 1950 the above partnership was dissolved and the business  was taken over by a new partnership consisting  of 10 partners.  In the reconstituted partnership Nand  Kishore Prasad  was dropped and the remaining four partners  of  the old  partnership were joined by (5) Ramsaran Sah Gupta,  (6) Ramagya Prasad, (7) Brahmdeo Prasad, (8) Dharmidhar  Prasad, (9)  Chandreshwar  Prasad and (10)  Kamleshwar  Prasad.   On account  of  the  reconstitution  of  the  partnership   the individual  shares  were also refixed.   The  above  Ramagya Prasad was entrusted with the management of the concern. On 22-5-1954 Parasnath Prasad filed Suit No. 68/1954 for the dissolution  of partnership and rendition of  accounts.   To this suit the remaining 9 partners or their heirs were  made parties.  Parasnath claimed that in his own right under  the partnership agreement he was entitled to one anna share  and that  out of his share of one anna, a 3 pies share had  been sold in a public auction and purchased by one Thakur Prasad. Thakur  Prasad was, therefore, made a party to the  suit  as Defendant No. 10. During  the  pendency  of  the  suit,  proceedings  for  the appointment of Receiver etc. were commenced, and seeing that the concern was not functioning in a proper manner the State Government  ,stepped in, revoked the licence and  took  over the  concern.  The State Government also deposited in  court Rs.  3/-  lakhs  as  compensation.   The  suit,   thereupon, virtually  became a suit for rendition of account  till  the date of deposit of the amount and for determining the  share of each of the partners in the amount so deposited. The  suit was vehemently contested.  Murli Prasad,  who  was defendant  No. 8, claimed that he was the sole owner of  the business  and licensee from the Government and the  rest  of them  had  no  lawful interest in the same in  view  of  the provisions of the Electricity Act. In  the  course  of the suit  three  brothers  viz.   Kuldip Narain,  Jagdish Narain and Kedarnath applied to  the  court that they had an interest in the partnership suit and should be made party defendants.  They alleged that Parasnath,  the plaintiff, was not entitled in his. own right to, the  whole of the. share of 1 anna but that he was a partner on behalf of the joint family of which they also had 67 been  members. They alleged that Parasnath was  entitled  to only  a 6 pies share while the, three of them were  entitled to  2  pies share each They further  contended  that  Thakur Prasad, defendant No. 10 had not really purchased the 3 pies share of the, plaintiff Parasnath and, therefore, the I anna share  of  Parasnath was liable to  redivided  only  between Parasnath and themselves.  Since a dispute was raised,  they were  added  as defendants 12, 13 and 14.   Jagdish  Narain, with  whom we are principally concerned, was  defendant  No. 13.   It would appear from the judgment of the  Trial  Court (see  paragraphs  12  and  70 to  74)  that  Parasnath,  the plaintiff,   had  contended  in  the  first  instance   that defendants  12 to 14 had no interest in the share of I  anna

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 17  

owned; by him, though,, later, at the time of the hearing he admitted  that  they were entitled to a 6 pies  share.   He, however, insisted that the sale of 3 pies share in favour of defendant  No. 10, Thakur Prasad, was not nominar  and  thus supported  Thakur Prasad’s case that he was entitled to a  3 pies  share.  Defendants 12 to 14, however, contested  this. In other words, there was a real contest in the suit between the plaintiff Parasnath and, defendant No. 10 Thakur Prasad, on the one hand, and defendants 12 to 14, on the other. Having  regard to the above contest the Trial  Court  raised issue No, 11 which is as follows "What  is the share of plaintiff and defendants 1 to  15  in the partnership ? On a detailed consideration of the evidence the Trial  Court negatived  the contention of Murli Prasad that he  was  tile sole  proprietor of the concern’.  The court held  that  the business  was  owned  by  a  partnership.   Accordingly,,  a preliminary decree wag passed on February 10, 1959 in  which the respective shares of the various partners or their heirs were  declared  and an account was ordered.   The  plaintiff Parasnath  was declared to be the owner  of a 6  pits  share and  defendants  12 to 14 were held to be  entitled  to  the remaining  6 pies share out of the I anna share  claimed  by Parasnath.   Thakur Prasad’s claim to; the 3 pies share  was negatived. From  the  above judgment and decree it.  was  Murli  Prasad alone  who  appealed  to the High Court.   That  was,  Civil Appeal,  No..  161/1959.  To this appeal Parasnath  and  the rest  of  the defendants were made  respondents.   The  High Court  accepted  Murli Prasad’s contention that he  was  the sole  licensee  of the business and the partner  should  not claim  a  lawful  interest in the  same.   Accordingly,  the decree  of  the Trial Court was set aside and  the  suit  of Parasnath was dismissed. Parasnath  did  not come in appeal to this Court.   But  two other,  partners  have filed two  separate  appeals.   Civil Appeal 17ll of 68 1967 is filed by Ramagya Prasad to whom the Trial Court  had given  4 annas and 3 pies share in the  partnership.   Civil Appeal No. 1885 of 1968 is filed by Brahamdeo Prasad to whom the  Trial Court had given a 2 annas share.   These  appeals were  filed  in 1967 and 1968 respectively and it is  to  be noted  that Jagdish Narain. who was defendant No. 13 in  the Trial Court, was made a party. Jagdish   Narain   who  is  respondents  Nos.  17   and   19 respectively  in  the above two appeals died  on  8-12-1969. His  legal heirs have not been brought on record and  it  is the  case of Murli Prasad, who is one of the respondents  in these  appeals, that the appeals have abated as a whole  or are otherwise incompetent. In order to make the statement of relevant facts complete we may  also  refer  to certain other  proceedings  though  the question  now involved does not arise in those  proceedings. When Civil Suit No. 68/1954 was pending, Murli Prasad  filed a suit for a declaration that he was the sole proprietor  of the  concern  and  the  others could  not  claim  any  legal interest.   That suit was suit No. 94/1956.  Since the  suit involved  the same issue as in Civil Suit No. 68/1954,  that suit was heard along with suit No. 68/1954.  Since the Trial Court  held that the partnership was legal, it decreed  suit No. 68/ 1954 and dismissed Murli Prasad’s suit No.  94/1956. Murli  Prasad, therefore, had to file two  appeals-one  from the Order passed in suit No. 68/1954 and the other from  the Order  of dismissal of suit no. 94/1956.  The appeal to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 17  

High  Court  from suit No. 68/1954 was Civil  Suit  161/1959 already referred to and the appeal from suit No. 94/1956 was Civil  Appeal No. 160/1959.  Since the High  Court  accepted Murli Prasad’s contention, the trial court’s decree in  Suit No. 68/1954 had to be set aside and Murli Prasad’s suit  for declaration,  suit No. 94/1956, that he was the  full  owner decreed.   From  the  latter decree two  appeals  have  been filed-one  by  Ramagya  Prasad and the  other  by  Brahamdeo Prasad.   No.  1986/68 is by Brahamdeo Prasad.  We  are  not concerned  with  those  two appeals at  this  stage  because Jagdish  Narain  had not been made a party to  the  Original Suit  filed by Murli Prasad nor had he applied to be made  a party.   Consequently  Jagdish Narain does not and  did  not figure  in  the appeals from the decree passed in  Suit  No. 94/1956. It is the contention of learned counsel for Murli Prasad who is a respondent in the two appeals (Civil Appeal No. 1711/67 and ’Civil Appeal No. 1985/68 arising out of Suit No.  68/54 and High ,Court Appeal No. 161 of 1959) that Jagdish  Narain who was ;declared to have a share in the partnership  assets had  been  made a party in these appeals and yet  after  his death on 8-12-1969 no 69 attempt  was  made  in time to bring his  heirs  on  record. Consequently  the  appeals  not  only  abated  against   the deceased Jagdish Narain but that the, two appeals abated  as a whole. Under Rule 4 (3) r/w Rule 11 of Order XXII C.P.C. the appeal abates  as against the deceased respondent where within  the time  limited  by law no application is made  to  bring  his heirs or legal representatives on record.  As pointed out by this Court in The State of Punjab v. Nathu Rain(4) it is not correct  to  say that the appeal abates  against  the  other respondents.   Under certain circumstances the  appeal.  may not  be proceeded with and is liable to be  dismissed.   But that is so not because of the procedural defect but because, as Mulla has pointed out, it is part of the substantive law. (See  Mulla  C.P.C. Vol. I Thirteenth Edition p.  620  under note Non-.joinder of- Parties).  No exhaustive statement can be  made as to the- circumstances under which an  appeal  in such  cases cannot proceed.  But the courts, as pointed  out in  the  above decision, have applied one or  the  other  of three tests.  The courts will not proceed with an appeal (1) when  the  success  of the appeal may lead  to  the  court’s coming to a decision which be in conflict with the  decision between  the  appellant and the  deceased  respondent  and, therefore,  it  would lead to the court’s passing  a  decree which  will be contradictory to the decree which had  become final  with respect to the same subject matter  between  the appellant   and  the  deceased  respondent;  (b)  when   the appellant  could  not  have  brought  the  action  for   the necessary  relief against those respondents alone  who,  are still  before the court and (c) when the decree against  the surviving  respondents,  if  the  appeal  succeeds,  be  in- effective  that  is  to say it  could  not  be  successfully executed.   These three tests, as pointed out by this  Court in Pandit Sri Chand and Ors. v. Mls.  Jagdish Parshad Kishan Chand and Ors.(2) are not cumulative tests.  Even if one  of them is satisfied, the Court may dismiss the appeal. It  is  contended by learend counsel for Murli  Prasad  that this  case  is covered by the first two tests.   His  client Murli  Prasad has now obtained a decree from the High  Court holding  that  lie is entitled to the whole of  the  subject matter  of the suit and no one else, including the  deceased Jagdish  Narain, is entitled to claim any share in the  same

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 17  

against him.  This is a decree which is passed in his favour so  far as deceased Jagdish Narain is concerned and  it  has become  final  as  the heirs of Jagdish Narain  are  not  on record in these appeals.  On the other hand, if the  present appellants were to succeed and be entitled, as. they  claim, to  the  decree of the Trial Court being restored,  it  will have  to  be  said  that the  deceased  Jagdish  Narain  was entitled  to  a share as awarded by the  Trial  Court.   And since the various parties in these appeals and the suit (1) [1962]2S.C.R.636. (2) [1966] 3 S.C.R, 451 at 455. 70 stand  both in the position of a plaintiff and  a  defendant the  decision  will lead to deceased  Jagdish  Narain  being given a share in the subject matter of the spit which  would be in conflict with the decree passed by the High Court  and has  become final as between himself and  deceased  Jagdish Narain.  It is further co contended that the second test  is also  satisfied because the two appellants before  us  could not  have  brought  an  appeal for  the  relief  claimed  by them  .against only the surviving sharers to  the  exclusion of, deceased Jagdish Narain in view of the fact that Jagdish Narain  has been declared to be owner of a share along  with other partners. In  this  rejection attention is invited to  the,  following passage in Nathu Ram’s case at page 640:               "The abatement          of an appeal means not               only that the decree between die appellant and               the deceased respondent has become final,  but               also   as   necessary  corollary,   that   the               appellate  Court  cannot  in any  way,  modify               that  decree  directly  or  indirectly.    The               reason is plain.  It is that in the absence of               the  legal  representatives  of  the  deceased               respondants    the  appellate   court   cannot               determine anything between the appellant and               the legal representatives which may affect the               rights of the legal representatives under  the               decree.     It   is   immaterial   that    the               modification which the Court will do is one to               which exception can or cannot be taken." These  observations have, been made, with reference, to  the appellant  and the deceased respondent but the  are  equally applicable where a decree is passed between a respondent and a  deceased respondent in a partnership suit.  Murli  Prasad the,  respondent has obtained a decree, from the High  Court to  the effect that deceased Jagdish Narai can him go  share against  him and if the appellants were to succeed in  these appeals  it  will  inevitably lead to  the  conclusion  that deceased  Jagdish  Narain would have a share  against  Murti Prasad and the appellate court would not be in a position to modify  the High Court decree directly or  indirectly  since that  decree has b6come fineil as between Murli  Prasad  and the deceased Jagdish Narain. It  Was contended on behalf of the appellants that there  is no bar to proceeding with the appeals in spite of the  legaj heirs of deceased Jagdish Narain not having been brought  on record.   In  the first place it was contended  that  though Jagdish Narain is dead be, is fully ropresented because  he, was a member of the joint family of which Parasnath was  the Managpr and since Parasnath is a respondant in these appeals it was not necessary to bring the personal heirs of  Jagdish Narain    on record.  Secondly it was contended that Jagdish Narain was     not himself a partner in the partner- 71

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 17  

ship and since a stranger to the partnership is not entitled to join as a party to the suit his omission in appeal is not fatal.   Admittedly  Jagdish Narain was not a party  to  the partnership  deed of 1950 and whatever interest he had as  a member  of  the  joint family of  which  Parasnath  was  the Manager  lie  could  look  up  only  to  Parasnath  for  his interest.   It  may be that lie was permitted to be  made  a defendant in the suit.  He was merely a proper party to  the suit  and  not  a necessary party and since  he  was  not  a necessary  party  to the suit, it was submitted,  he  cannot claim to be a necessary party to the appeal. We  do, not think that there is any substance in  either  of the two contentions.     So  far as the first contention  is concerned it is true that Parasnath     represented      the joint family when the partnership had come into   existence but  much  water  had flown  under  the  bridge  thereafter. Jagdish  Narain  and his two brothers Kuldip and  Kedar  had applied  to be made parties to the suit on the  ground  that they had separated not only amongst themselves but also from Parasnath.   There was an award dated 30-4-1949 and  on  the basis of the, award a compromise decree was passed on  20-9- 1951. The suit had been filed in 1954 and at the time of the suit, Parasnath the plaintiff in the suit, was no longer the karta  of  the family and could not represent  the  interest either  of  Jagdish Narain or his two  brothers  Kuldip  and Kedar.   As  a  matter  of fact, as  already  shown  in  the narrative  of  facts, they raised a serious contest  to  the suit of Parasnath on the ground of conflict of interest  and the Trial Court had held in their favour.  Parasnath did not appeal  against the decree and even in the  present  appeals the share of Jagdish Narain and his two brothers as  awarded by  the  Trial Court is not challenged.  In  fact  they-have asked that the decree in favour of Murli Prasad given by the High Court be set aside and the decree of the Trial Court be restored.   Under these circumstances, it will be  wrong  to say  that  in the present appeals the interest  of  deceased Jagdish Narain is fully represented by Paras nath or anybody else. As  to the second contention that Jagdish Narain was  not  a necessary  party to the suit and, therefore, to the  appeal, it  is  enough to say that such a contention  is  no  longer permissible.  Jagdish Narain and his two brothers  contested the  suit filed by Paras nath for dissolution and  rendition of accounts.  Initially they were not made parties but  they applied to the court and were made par-ties as defendants 12 to 14.  Parasnath did not admit, in the first instance, that defendants  12  to  14 had any interest in  the  subject  in matter of the suit.  He claimed that he had supplied his own funds to the partnership and had, therefore, become a sharer in the partnership to the extent of 1 anna.  At the hearing, however,  be  agreed that the other members of  the  family, namely,  defendant,;  Nos. 12 to 14  were  together  equally entitled with him to a share. 72 There  was, however, a second point of contest and that  had to  be  decided on merits.  Parasuath had alleged that  a  3 pies  share out of his I anna share had been sold in  public auction and purchased by Thakur Prasad, defendant No. 10 and hence  Thakur  Prasad  was  entitled  to  a  3  pies  share. Defendants  12 to 14 challenged this sale alleging that  the sale  was nominal in favour of Thakur Prasad and that, as  a matter  of fact, the 3 pies share which was sold in  auction had  been  purchased on behalf of the joint  family  itself. This  plea was accepted by the Trial Court  which  negatived the case of Parasnath and Thakur Prasad that the latter  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 17  

entitled to a 3 pies share out of Parasnath’s I anna  share. The  whole share of I anna of Parasnath in  the  partnership was divided between Parasnath, the plaintiff, and defendants 12  to 14 half and half.  From this finding  after  contest, Parasnath  did  not appeal at all.   Therefore,  the  decree passed  by the Trial Court as to the share of Parasnath,  on the  one  hand, and defendants 12 to  14  including  Jagdish Narain,   on   the  other,  became  final   and   in   these circumstances would be impossible to say that Jagdish Narain was  just  a proper party to the suit.   Indeed  if  Jagdish Narain  and his two brothers (defendants 12 to 14)  had  not applied to the court to be made party defendants there could be  no doubt at all that Parasnath would have been  entitled to claim the full one anna share in the partnership suit and it would have been open to defendants 12 to 14 to make their claim   against   Parasnath  in  an  independent   suit   or proceedings  But when in the suit defendants 12 to  14  were made  parties and after contest between them  and  Parasnath their share has been awarded to them as against Parasnath it would  be  idle to say that for the purposes of  the  appeal defendants  12 to 14 would not be necessary parties.   There are  two ways of looking at it: (1) would it be possible  to defendants  12  to  14  to  file  a  separate  suit  against Parasnath  for  the sub-share in the partnership ?  and  (2) could  Murli Prasad whose claim to the whole of the  subject matter  of the suit had been negatived have filed an  appeal without  making defendants 12 to 14 parties to the appeal  ? The   answer  could  only  be  in  the   negative.    Having successfully   claimed  relief  against  Parasnath  in   the partnership  suit  and  obtained  it  from  the  court,  the decision would be final between them and defendants 12 to 14 would not be able to claim the same relief against Parasnath in  a separate suit.  Similarly Murli Prasad who was  a  co- defendant  with defendants 12 to 14 could not have  obtained relief without filing an appeal to which defendants 12 to 14 were made parties.  Therefore, it is quite clear that though in  theory it may be possible to contend that, as a.  matter of  law, defendants 12 to 14 including Jagdish  Narain  need not have been made parties in the partnership suit, the very fact  that  their claim to relief against Parasnath  in  the partnership  suit  has been granted with a view  to  make  a complete adjudication between the parties to the suit  would make defendants 12 to 14 necessary parties 73 in any appeal filed by a party aggrieved by the decision  of the  Trial Court.  In fact they were made co-respondents  in Appeal No. 161/1959 to the High Court filed by Murli  Prasad and even in the present appeals.  That was on the basis that they  were necessary parties to the appeal. in view  of  the Trial Court’s decree which gave them a substantial share  in the  subject matter of the partition suit.  For the  purpose of  the  appeals  (Civil Appeal  1711/67  and  Civil  Appeal 1985/68  arising out of Parasnath’s Civil Suit  68/1954)  we must  proceed on the footing that Jagdish  Narain  (Original Defendant  No. 13) had been declared to have a share in  the partnership assets in his own right. And now the question is whether the appellants who, in these appeals, have asked for the restoration of the decree of the Trial  Court can be peemited to proceed with  these  appeals without deceased Jagdish Narain being represented.  We think that  the law on the point is quite clear.  It was  held  as far  back  as in 1887 that a suit  brought  for  partnership accounts after a necessary party defendant has been omitted, is  liable  to be dismissed.  See :  Ramdoyal  v.  Junmenjoy Coondoo(1).   The above decision was followed in Amir  Chand

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 17  

v.  Raoji Bhai(2) with the observation that no  dissent  had ever  been expressed from the above decision.  It  was  held that  a suit for accounts cannot be maintained between  some only  of the partners of the firm but every partner must  be made  a party.  The same consideration applies to an  appeal arising  out  of a suit for dissolution of  partnership  and accounts.  See : Raj Chunder Sen v. Gangadas Seal and others (3  ).  In  that case A sued his partners B, C, D  &  F  for dissolution and for accounts of ,the partnership.  A  decree was passed in the suit by which it was ordered that a sum of Rs.  9,000/- should be contributed by A, B & C and that  out of that sum Rs. 1,740/- should be paid to D and the rest  to F.  A  appealed from the decree making B, C-, D  &  F  party respondents.  B & C also appealed from the decree making  A, D  &  F party-respondents.  Pending the appeal D  died.   No application  was made by the appellants in either appeal  to bring  on the record the legal heirs of D within the  period of limitations It was held that the appeal was not competent for as the suit was for partnership accounts, it was not one in which the appellants could proceed in the absence of  the legal  representatives of D. Their Lordships olyserved  that in  the absence of the legal representatives of one  of  the partners  the  court  had no option  and  the  appeals  were perfectly  idle.  This decision of the Privy  Council  along with  several  others of High Courts in this,  country  were followed  in Kunj Behari Lal v. Ajodhia Prasad  (4)  wherein the headnote is as follows : (1) I.L.R. 14, Cal. 791. (3) 31 Indian Appeals 71. (2)  A.I.R. 1930 Madras 714. (4)  XXT T.L.R. Lucknow 453. L1208  Sup CI/72 74 during   the  pendency  of  the  appeals,  and   his   legal representatives were not brought on record within the period of limition pres- cribed.  So the question question is raised by Murli  Prasad that the appeals have abated. in a suit for dissolution of a partnership and: for account, the  partners,  are necessary parties,but  not  persons  who might  be  claimmg some right under. one  partner.   Jagdish Narain was not a partner in the firm sought to be dissolved. He  was  not, therefore, a necessary party to the  suit.  1n fact,  he  was  not made a party to the  suit  when  it  was instituted.  Kuldip Narain ( 12th defendant), Jagdish Narain (13th defendant) and Kedar Nath Shah (14th defendant)  were  members  of  the  joint  family  of  which Parasnath Prasad,  the  plaintiff, was the manager and  they’  claimed that  each of them was entitled to a share in the  one  anna share  of  Parasnath Prasad in the partnership.   They  were allowed  to  be impleaded not because  they  were  necessary parties to the suit but only to avoid multiplicity  of-suits as other ’wise they ‘ould have had to file another suit  for declaration  of their rights, in the One an share of  Paras- nath Prasad and for partition thereof.  In other words, they were  impleaded  not because the suit,  as  instituted,  was defective for nonjoinder of necessary parties, but only  for adjudication of their rights vis-vis Parasnath Prasad,  the, plaintiff, and to. avoid another suit.  The other  partners, namely,  defendants  1  to 9 were  not  interested  in  the, question  that  arose for consideration as  between  Jagdish Narain  and defendants 12, and 14 on the one hand,  and  the Plaintiff on the other. In the State of Punjab v. Nathu Ram(1) this Court  explained the  tests  applicable  in considering  whether an  appeal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 17  

abates  in  its entirely when it has abated  quaone  of  the respondents.  The headnote of the case reads "If the Court can deal with the matter in controversy so far as regards the rights and interest of the appellant and  the respondents  other than the deceased respondent, it  has  to proceed  with the appeal and decide it; otherwise  it  will, have  to  refuse to proceed further with the  "appeal  ’arid therefore  dismiss if.  Ordinarily, the consideration  which will  weigh  with the court in deciding  upon  the  question whether  the  entire  a appeal had abated  or  not  will  be whether   the   appeal  between  the  appellants   and   the respondents  other than the deceased respondent can be  said to  be properly constituted or can be said to have  all  the necessary parties for the decision of the (1)  [1966] 2 S.C.R. 636. 75 Supply  Works" constituted under an agreement  dated  August 31, 1950.  There were 10 partners in the firm including  the plaintiff.   Parasnath Prasad, the plaintiff, had- one  anna share and defendants 1 to 9 had the remaining 15 annas share in  the  partnership.  After; the institution of  the  suit, defendants  12  to  14  were impleaded  on  the  basis  that Parasnath  Prasad, the plaintiff was the Manager of a  joint family  and  that  those defendants, being  members  of  the family, were also entitled to a share in the one anna  share of Parasnath Prasad in the partnership. During the  pendency of this Suit Murli Prasad, one of the partners and defendant No.  8 in Suit No. 68 of 1954, filed a suit (Suit No. 94  of 1956)  for a declaration that he was the sole  licencee  and the  owner  of  the  electrical  undertaking  and  not   the partnership  and,  therefore, he was entitled to  the  money payable  by  the  Government  for  the  acquisition  of  the electrical  undertaking. In this Suit, the partners  in  the firm alone were parties. Defendants No. 12 to 14 in Suit No. 68 of 1954 were not made parties. Since Suit No. 68 of 1954 and Suit No. 94 of 1956 were units in   respect   of  the  assets  of  the   same   undertaking viz.,"Chapra  Electric  Supply Works", the  two  suits  were tried together.   Issue No. 11 in Suit No. 68 of 1954 was,               "What  is  the  share  of  the  plaintiff  and               defendants  1  to  15  in  the  share  of  the               partnership ?" The Court passed a preliminary decree in Suit No. 68 of 1954 dissolving  the partnership and declaring the shares of  the plaintiff and  defendants  1 to 9 and 12 to 14. Suit No.  94 of 1956 was dismissed.  Against these decrees, Murli  Prasad filed  two appeals before the High- Court of Patna :  appeal No. 160 of 1959 against the decree in Suit No. 94 of 195 and appeal No. 161 of 1959   against  the decree in Suit No.  68 of  1954. In appeal No. 160 of  1959 also, defendants 12  to 14 in Suit No. 68 of 1954 we not parties.  His contention in appeal  No,  161 of 1959 was that Suit No. 68  of  1954  was incompetent  as  the  partnership which  was  sought  to  be dissolved   was   illegal  and,  therefore,  no   suit   for dissolution  of it lay, and that in appeal No. 160  of  1959 was  that  he was the sole owner of the undertaking  and  as such he was entitled to get the compensation amount for  the acquisition of tile undertaking. The High Court allowed both the  appeals and dismissed the suit for dissolution  of  the partnership (Suit No. 68 of 1954) and decreed Suit No. 94 of 1956. The  two appeals in question were filed by two  partners  of the firm and arise from the decree passed in appeal No.  161 of 1959 by the High Court from the decree of the trial Court No. 68 of 1954.  In these appeals, Jagdish Narain, the’ 13th

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 17  

defendant in 76 during   the  pendency  of  the  appeals,  and   his   legal representatives were not brought on record within the period of  limitation  prescribed.  So, the question is  raised  by Murli Prasad, that the appeals have abated. In a suit for dissolution of a partnership and for  account, the partners are necessary parties but not persons who might be  claiming some right under one partner.   Jagdish  Narain was  not a partner in the firm sought to be  dissolved.   He was not, therefore, a necessary party to the suit.  In fact, he was not made a party to the suit when it was  instituted. Kuldip   Narain  (12th  defendant),  Jagdish  Narain   (13th defendant)  and  Kedar  Nath  Shah  (14th  defendant)  were, members  of the joint family of which Parasnath Prasad,  the plaintiff,  was the manager and they claimed that  each  of them  was  entitled  to a share in the  one  anna  share  of Parasnath  Prasad in the partnership.  They were allowed  to be impleaded not because they were necessary parties to  the suit  but only to avoid multiplicity of suits  as  otherwise they would have had to file another suit for declaration  of their  rights in the one man share of Parasnath  Prasad  and for partition thereof.  In other words, they were  impleaded not because the suit, as instituted, was defective for  non- joinder  of necessary parties, but only for adjudication  of their rights vis-a-vis Parasnath Prasad, the plaintiff,  and to   avoid  another  suit.   The  other  partners,   namely, defendants  1 to 9 were not interested in the question  that arose  for  consideration  as  between  Jagdish  Narain  and defendants  12 and 14 on the one hand, and the Plaintiff  on the other. In the State of Punjab v. Nathu Ram(1) this Court  explained the tests applicable in considering whether an appeal abates in  its  entirety  when  it  has  abated  qua  one  of   the respondents.  The head note of the case reads :               "If  the  Court can deal with  the  matter  in               controversy  so far as regards the rights  and               interest of the appellant and the  respondents               other  than the deceased respondent,it has  to               proceed   with  the  appeal  and  decide   it;               otherwise  it will have to refuse  to  proceed               further with the appeal and therefore  dismiss               it.  Ordinarily,, the consideration which will               weigh  with  the court in  deciding  upon  the               question whether the entire appeal had  abated               or not will be whether the appeal between  the               appellants and the respondents other than  the               deceased respondent can be said to be properly               constituted  or  can be said to have  all  the               necessary parties for the decision of the               (1)   [1966] 2 S.C.R. 636.               77               controversy before the Court and the tests  to               determine this have been described thus :               (a)   when the success of the appeal may  lead               to the Court’s coming to a decision which will               be  in conflict with the decision between  the               appellant  and tile, deceased  respondent  and               therefore  which  would lead  to  the  Court’s               passing  a decree which will be  contradictory               to  the  decree which had  become  final  with               respect to the same subject matter between the               appellant and the deceased respondent;               (b)   when   the  appellant  could  not   have               brought  the action for the  necessary  relief

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 17  

             against those respondents alone who are  still               before the Court and               (c)   when  the decree against  the  surviving               respondents,   if  the  appeal  succeeds,   be               ineffective  that  is to say it could  not  be               successfully executed.               "The  abatement  of  an  appeal  against   the               deceased  respondent means not only  that  the               decree between the appellant and the  deceased               respondent  has  become final but  also  as  a               necessary  corollary that the appellate  Court               cannot in any way modify that decree  directly ’,               or indirectly.               "When the decree in favour of the  respondents               is  joint and indivisible, the appeal  against               the   respondents  other  than  the   deceased               respondent  can-not be proceeded with  if  the               appeal  against  the deceased  respondent  has               abated." The  principle  of this judgment was affirmed  in  Rameshwar Prasad  and  Others v. M/s.  Shyam Beharilal  Jagannath  and Others(1)  and  later in an unreported  judgment  in  Kishan Singh  and Others v. Nidhan Singh and Others(2).  It may  be pointed  out that the three tests suggested in  Nathu  Ram’s case  are  not  cumulative tests.  Even if one  of  them  is satisfied,   the  Court  may,  having  regard  to  all   the circumstances,  hold  that  the appeal  has  abated  in  its entirety.   Let us take the two tests which are said to apply to  this case  and  see whether any one of them  is  satisfied.   The matter in controversy before the High Court was whether  the partnership   was  a  legal  partnership  and  a  suit   for dissolution  of it and for rendition of account  would  lie. The  High Court held that the partnership was  illegal  and, therefore,  Suit  No.  68 of 1954 was  incompetent.   I  The question  in  controversy in these  appeals,  therefore,  is whether (1)  [1964] 3 S.C. R. 549. (2)  C.A. No. 563 of 1963 decided on Dec. 14,1964. 78 the partnership was legal and liable to be dissolved and  if so what is the share of the respective partners ? Can these, questions  be decided by this Court without the presence  of the legal representatives of Jagdish Narain ? Now,  one  test  to  decide whether  Jagdish  Narain  was  a necessary party in these appeals, is, whether there will  be inconsistent  decrees if the appellants were to  succeed  in the  appeals and that will lead this Court to pass a  decree contradictory  to  the decree which has  become  final  with respect  to  the subject matter between the  appellants  and Jagdish  Narain.  In other words, the question to  be  asked and answered is, whether, if these appeals were to  succeed, would this Court have to pass a decree contradictory to  the decree which has become final as between the appellants  and Jagdish Narain ?  Since the High Court dismissed suit No. 68 of  1954  by allowing appeal No. 161 of 1959, even  if  this Court  were to reverse the. decree of the High Court,  there will be no conflicting decrees.  This Court will not have to pass  a decree contradictory to any decree passed in  favour of Jagdish Narain and which has become final as between  the appellants  and Jagdish Narain, even it this Court  were  to allow  the  appeals  and set aside the decree  of  the  High Court, for, no decree in favour of Jagdish Narain was passed by  the High Court as Suit No. 68 of 1954 was  dismissed  by that  Court.   But it is said that the High Court  passed  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 17  

decree  in appeal No. 161 of 1959 which declared that  Murli Prasad alone is the owner of the subject matter of the  suit to the exclusion of Jagdish Narain and others and that  that decree will be inconsistent with the decree which this Court will have to pass if the appeals were to succeed, namely, to restore  the  decree of the trial Court giving  a  share  to Jagdish Narain.  For one thing, the decree of the High Court in  appeal No. 161 of 1959 is only a decree dismissing  Suit No.  68 of 1954 for dissolution of the partnership.   It  is the decree of the High Court in appeal No. 160 of 1959 which declared that Murli Prasad alone was entitled to the subject matter  of  the  suit and not the partnership.  It  is  that decree which negatived the claim’ of Parasnath Prasadand the other partners in the undertaking.  Jagdish Narain was not a party  to that decree and Murli Prasad. got  no  declaration under  the decree that he was sole owner of the  undertaking as against Jagdish Narain.  The appeal to this Court against that decree is Civil Appeal No. 1710 of 1967 and it is still pending  and, therefore, that decree has not  become  final. Even  assuming that by the dismissal of Suit No. 68 of  1954 in  Civil  Appeal No. 161 of 1959, the High Court  passed  a decree  in favour of Murli Prasad as against Jagdish  Narain that Murli Prasad is the sole owner of the undertaking,  and that the decree has become final, as Jagdish Narain did  not appeal  from the decree, it is a decree in favour  of  Murli Prasad and against Jagdish Narain.  How then is the test 79 satisfied, if the test to be applied is that, if  appellants in these appeals were to succeed, that must necessarily lead this  Court  to pass a decree contradictory  to  the  decree which has become final as between the appellants and Jagdish Narain ? Quite apart from this, if the appeals were to succeed,  this Court will not have to pass a decree declaring the share  of Jagdish  Narain  in the assets of the  partnership,  or,  to restore  the  decree  of the trial court  and  thus  pass  a contradictory  decree, even if it be assumed that  the  High Court  passed a decree in Suit No. 68 of 1954 in  favour  of Murli  Prasad,  that Jagdish Narain had no interest  in  the undertaking  and that is the decree which has  become  final with Narain for the purpose of the test.  For one thing, the suit for dissolution of the partnership stands dismissed  by the reversal of the decree of the trial court in Suit No. 68 of 1954 by the High Court. Jagdish Narain did not appeal  to this Court and the decree of the High Court has become final so  far as he is concerned and thiS Court will not be  bound to  pass  a decree declaring his share even if  the  appeals were  to  succeed, although it might be competent  for  this Court  to do so under Order 41, rule 4 of the Code of  Civil Procedure.   To  put it differently, if this Court  were  to hold that the partnership was legal and, therefore, the suit for dissolution competent this Court need not pass a  decree declaring the share of   Jagdish NArain as he did not appeal from  the  decree- of the High Court.  It is,  therefore,  a fallacy to think that if these appeals are allowed, the only course open to this Court is to pass a decree restoring  the decree  of  the trial court which gave a  share  to  Jagdish Narain.   This Court can very well pass an effective  decree for dissolution of the partnership and declare the shares to which the      partners  are entitled in the assets  of  the partnership,  leaving the, legal representatives of  Jagdish Narain  and defendant 12 and 14 to a separate suit  to  work out their rights in the one anna share of Parasnath  Prasad. That  was  the sort of decree which the trial  court  should have passed.  Merely because the appellants have prayed  for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 17  

the  restoration of the decree of the trial court, it  would not follow that this Court is deprived of its power to  pass the decree     which  the  justice  of  the  case  requires. Under Order 41, rule 33 of the Code of Civil Procedure, this Court,  as appellate Court, has power to pass any decree  or make any order which ought to have been passed or make  such further  decree  or order as the case  may  require.   From- whatever  angle  the  matter  is  looked  at,  there  is  no foundation  for  the assumption that the only  decree  which this Court can pass in case the appeals are allowed by  this Court  is a decree restoring the decree of. the trial  court and that that decree will be inconsistent with the decree of the  High  Court  which  has become  final  as  between  the appellants and Jagdish Narain. 80 Take  the second test: Could the appellant have  brought  an action  for dissolution of the partnership and for  accounts against  those respondents alone who are  still before"  the Court ? In other words, could an action for dissolution  of the  partnership  and  for rendition of  account  have  been brought  by the appellants and an effective decree  obtained without Jagdish Narain on the array of parties ? As I said, the  appellants,  as  partners  in  the  firm,  were  really unconcerned  as to who-were all interested in the  share  of Parasnath Prasad, the plaintiff.  Whether he was the manager of  a joint family, whether the other members of his  family were  interested in his one-anna share in  the  partnership, whether  he had formed a sub-partnership, or whether he  had entered  into  an  agreement with defendants  12  to  14  as regards his share in the partnership, were all questions  in which  the  appellants  were not concerned  for  the  simple reason  that  Parasnath Prasad alone was a  partner  in  the firm.   It is settled law that when the manager of  a  joint family becomes a partner in a firm, the other members of the family do not thereby become partners therein although  they might have interest in his share in the partnership.  "If  a partner has agreed to share his profits with a stranger, and the  latter  seeks an account of those,-profits,  he  should bring  his  action against that one partner alone,  and  not make the others parties"(1).  The reason is that there is no privity  of  contract  between the other  partners  and  the stranger.   Like-wise, for the same reason, when  a  partner files  a  suit for dissolution of the  partnership  and  for account, the stranger in whose favour there is an  agreement by  a partner should not be made a party.  It is, no  doubt, true that the trial court, by its decree, declared shares of Jagdish  Narain and defendants 12 and 14 in the  partnership assets.   But  that  was  not  because  they  were  partners entitled  to  share  in the assets of  the  partnership  but because the Court though that if their-shares are  declared, it   would  avoid,  another  litigation  between  them   and Parasnath  Prasad.   In other words, Jagdish Narain  had  no right   to  a  share  in  the  partnership  assets  in   any independent capacity  but be, derived his right only through the plaintiff in the suit.  IT is a mistake to suppose  that Jagdish Narain had been declared, entitled to, a share..  in the  partnership  assets in his own  right.   That,  Jagdish Narain  and defendants No. 12 and 14 derived their right  to share in the, partnership assets through Parasnath  Prasad, the  plaintiff, and that their shares were carved  out  from the one anna share of Parasnath Prasad is clear from para 11 and the decretal portion of the judgment of the trial  court in  Suit  No.  68 of 1954.  It was the  one  anna  share  of Parasnath  Prasad that was divided between Parasnath  Prasad and defendants 12 to 14 half and half.  A mechanical reading

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 17  

of the decree will not throw any light on this question.  As justice   Brandeis   said,  "Knowledge   is   essential   to understanding and under- 81 standing  should  precede  judging"(1).   Knowledge  of  the reason  why  the trial court impleaded Jagdish Narain  as  a party  to  the  Suit can be obtained  only  by  reading  the judgment of the trial court.  That knowledge alone will lead to  an  understanding of the reason why the Court  passed  a decree declaring that Jagdish Narain was also entitled to  a share  in the partnership and the character in which or  the basis  on which he was declared entitled to a share  in  the partnership  assets.   That understanding must  precede  the process  of judging whether he was a necessary party to  the suit or to these appeals. Leaving  aside all these considerations let me  assume  that Jagdish   Narain  was  interested  in  the  assets  of   the partnership  jointly  with the other partners,  even  so,  I should think, these appeals have not abated.  If under Order 41,  rule 4 of the Code of Civil Procedure, it was  open  to the appellants  to  appeal to this Court  from  the  whole decree, for the reason that the decree proceeded on a ground common to all the respondents before the High Court, namely, that the partnership was illegal and, therefore, no suit for dissolution  of  it lay, and, for this Court to  reverse  or vary the decree in favour of a non-appealing respondent and, therefore,  set  aside  the decree  against  Jagdish  Narain passed  by the High Court, then it would be clear  from  the ruling  of  this Court in Mahabir Prasad v.  Jage  Ran?  and Others(1) that there will be no abatement of these  appeals, even if the legal representatives of Jagdish Narain were not impleaded in the appeals.  The facts of that case were,  one Mahabir Prasad. his mother Gunwanti Devi and his wife  Saroj Devi  (plaintiffs)  got a decree against Jage  Ram  and  two others  (defendants) for the amount of rent due  from  them. Their application for execution was dismissed by the learned Subordinate  Judge, Delhi.  Mahabir Prasad alone  preferred an appeal to the High Court against the order and  impleaded Gunawati  Devi and Saroj Devi as party  respondents.   Saroj Devi died and the legal representatives were, not brought on record  within  the period of limitation and  her  name  was struck  off  from the array of respondents "subject  to  all just  exceptions".  The High Court dismissed the  appeal  on the  ground that it abated in its entirety.  Mahabir  Prasad appealed to the Supreme Court.  Shah, C.J., speaking for the Court, after observing that the power of the Appellate Court under  Order 41, rule 4, to vary or modify the decree  of  a subordinate Court arises when one of the persons out of many against whom a decree or an order had been made on a  ground which was common to him and others has appealed, said : "Competence   of  the  Appellate  Court  to  pass,a   decree appropriate to the nature of the dispute in an appeal filed (1) 264 LJ.S. 504, at 520 (Jay Burns Baking Company et al v. Charles W. Brayn). (2)[1971] 1 S.C.C. 265. 82               by  one  of  several persons  against  whom  a               decree is made Al on a ground which is  common               to  him and others is not lost merely  because               of  the person who was jointly  interested  in               the claim has been made a part respondent  and               on  his death his heirs have not been  brought               on the record."               I would hold that the appeals have not abated.                                   ORDER

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 17  

In accordance. with the judgment of the majority the appeals are dismissed.  There will be no order as to costs. G.C. 83