HARIHAR PRASAD SINGH AND ORS. versus BALMIKI PRASAD SINGH AND ORS.

HARlHAR PRASAD SINGH AND ORS ..

BALMIKI PRASAD SINGH AND ORS. December 10, 1974

IM. H. BEG, A. ALAGIRISWAMI AND v. R. KRISHNA IYER, JJ.]

Hi11du Law-Successio11-Special family custom, Proof of.

Code of Civil Procedure (Act 5 of 1908) 0.22 a1td 0.41, rr. 4 a1td 3.l-F11i/ure to implead parties and legal represematives-Efject of.

suit was filed by the plaintiffs claiming to succeed to th~ estate of R,, Bhu.mihar Brahmin. The basis of the claim was special custom of the family to whi:h the parties belonged, though under ordinary Hindu Law they would not be entitled' to succeed to !he estate being related to R in distant degree. For establishini~ 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, held that none of the inslances were proved and allowed the appeal.

Jn ap~al to this Court, a[>art from the contention that the High Court·was ·Wrong, the app·ellants (plaintiffs) also contended that the respondents' (defon-dants) 3,ppeal to the High Court should have been dismissed as parties WE>re riot properly brought. on record; while the respondents raised the preliminary objection that the appeal to this Court should be dismissed, because the leg.al :representative of one of the deceased plaintiffs was not brought on record.

Dismissing the appeal,

HELD : l(a) A.ccording to the plaint the parties are descendants of M and ·the plaint proceeds on the basis of the custom prevai/i11g i11 the family of M. Ou! 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 desccndc:d .from P-a remote ancestor who lived five or six hundred years ago-was llet in without any objection from the defendants, .it could not be assumed or helld ·that such evidence was admissible. Besides, the evidence put forward, tbou11h accepted on bol:b sid~s with regard to persons descer.ded from P. is more matter of tradition without much historical value. It is of very little eviden!iary value and of little assi-stance in deciding the issues in the case. The evidenc:e 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. 1935 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 long· period and with such invariability .as to show that it h:r>, by common consent. been submitted to as the establiShed governing· rule,, of the famny. The evicl~n-~,should be clear and unambiguous, thou!?h instances in support of family custom may not be many and frequent. [938 G-H; 942 D-E] , .

(c) The initilll onus of proving the special family custom lies on the plain-tiffs. [942 EJ .

Ramalakshmi Ammal v. Siva11atha Perumal Setf111rava, 14 M.l.A. 570, 585 .applied. Puspavathi v. Vishweswar A.I.R. 1964 S.C. 118, followed. (d) in .case' like this it is the documentary evidllnce that would show tM actual attitude of the parties and their consciousness regarding the cu5tom fa more important than any oral evi~ence that was given in the case. Till t~!s · ·.case, the appellar1ts, who are not ignorant persons but who are confirmed ltt1-!lllnts nowhere made claim solely on the basis of the custom which they aw now putting forward. On the •:Ontrary, they have been siding with the con .. ·testing defendantn. Their attitude throughout is consistent only with their consciousness that they had no right to any share in R's estate. They had not ap~ared a» witn~sses and given evidence. where they would have been the best J)ersons to explain the circumstances relating to the instances or explain the , contents of documents which _are not consistent with the custom p[1]caded. Some

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 th~ present suit, · as to why and how those documents were executed or why the recitals were p1:.t in, in those documents. On earlier occasions, whenever they put forward claim it was on the liasi-3 of being near reversioners and sometimes on the basis of false genealogy than on the basis cif custom. [945 E-G; 948 D-F, 949 CJ

The High Court was, therefore, right in holding that three instanc-~s in 'the . family of M were not proved and that the ,:ustom pleaded was not established . (949 E]

2(a) In the present CllSe one of the appellants (plaintiffs) died and his widow and son were substituted in his pla:ce. Thereafter, the widow died, after the Hindu Succession Act' 1956 had come into force, leaving daughter. but the daughter was not added as party. But there is no substance in the preliminary objection raised by the respondenl'3 that becac,se the daughter was not added as legal representative the appeal to this Court had abated. (949 F-950 DJ

· In this case each of the reversioners is entitled to his own specifi: share .. He could have sued for his own share and got 11 decree for it. Therefore, if one of the· plaintiff• 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 · regards the other plaintiffs or appellants. Further more, .the principle that applies in this case ii, whether the estate of the deceased appellant or respondent is repr~epted. The principle is of representati<?n of the estate of . the deceased wh11:h need not be by all the ie¥ai representatives of the ·deceased. This is not case where no legal representallve of .the ,deceased was on r:ecord. Iii' case where the. ~rson brought on record 1s legal representative, it would · be consonant with jll'Stice and principle that, in the absenee of fraud or collusion. the bringing. on record of such legal representative is sufficient to prevent the suit or appeal from abating. · The fraud or collusion must be· fraud or cpllusion between the appellant on the one hand and ,the representa-tive of the·' deceased respondent, who is brought on record. on the other and vice versa, and tile fraud contemplated is fraud or collu•sion between the parties on record to the 'dt;.triment 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 impleadin11 her as legal representative of their deceased mother. (951 F-H; 952 G, 954 A-B; 955 B-C]

. record the suit or the appeal might abate as far as he is concerned but not a& ·

respondent is repr~epted. The principle is of representati<?n of the estate of .

The Stale of P1111jab v. Nathu Ram [1962) 2 S.C.R. 636; Ramesliwar Prasad v. M /s. Sh~am Behari/al Jagannath (1964] 3 SCR 549; Daya Ram v. Shyam Sundarl [!965] 1 S.C.R. 2n; Dolai Molliko v. K. C. Pamai [1966) Supp S.C.R. 22; Raton Lal v. Lal Man Das (1970] I S.C.R. 296; Mahabir Prasad v. Jape Ram (1971) 3 S.C.R. 301; Ram Sarup v. Munshi [1963] 3 S.C.R; 858: N. K. Mohd. Sulaimari 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· ~~ '

(b) Against the de:ree passed by the trial court in favour of the appellants (plaintiffs) 3 appeals were filed in the High Court by the respondents (def en- · dants) In two of the appeals one of the plaintiffs was not impleaded as party. . The High Court was correct in hold1og that the third appeal atleast, had not abated because of the failure to implead one cif the plaintiffs as res· pondent in the other two appeals and that it was open to the High Court to give relief io alt the appellants in the High Court (respandents in this Court) in exercise of its powers under 0. 41'. r. 33, C.P.C. [956 B-D: 959 B-C]

In this case. each one of the nla·intiffs could have filed suit for his share of the estate of the deceased. The fact that all the re·versioncrn joined together as plaintiffs and filed one suit does not mean that, if for one reason or another. the S\!.it of one of them fails or abMes the suit of the others also fails or abates. The decree is in substance the combination ·of several .decrees in favom of several plaintiffs. If in an appeal a~ainst the de:rce one of the plaintiffs is not added as respondent it only means that the ~ecree in his

iavour cannot be set 116ide or modified even if the appeal succeeds against the o!her plaintiffs in respect of their interest. There would in that case be no c:on-ll1ct between the decrees as the decree is combination of many decrees. In other words the result of the failure to add one of the plaintiffs as respondent in. two of the appeals would be that the decree granted in his favour by the tnal -=ourt would stand but not the decrees granted in favour of the other plain-.tiffs. They can be reversed in those appeals. There would be no such djffi. culty 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 bi\ve been reversed. It was, therefore, possible by the application of the provisions of ·0.41 rr. 4 and 33, to have allowed the appeal in full and given rehef not merely to the appellants in the_ third appeal but also to the appellan~ in the other .two appeals assuming that they had filed those appeails. It is not 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 party. To' such case, 0.41, r.33 clearly applies. 1956 ~D; 957 E-HJ

CML Al•PELLATE JURISDICTION: Civil Appeals Nos. 760 to 762 ·Of 1'967.

Appeal from the judgment and d1:cree dated the 27th July, 1959 of the Patna High C.ourt in Appeal from Original Decree Nos. 326 • .332 and 333 of 1948.

S. C. Misra, Indubhanu Singh, Jnderdeo Narain Singh, Gynn

Sudha Misra and D. Goburdhan, for the appellants.

A. K. Se11 (In C.A.No. 760/67), Sarjoo Prasad (In C.A. No. 761-

762/67), Gunteswhar Prasad and R. D. Datar for the respondents.

The Judgment of the Court was delivered by

ALAGIRISWAMI, J.-In the year l.872 one Ramdhan Singh, Bhumihar Bra.hmin, 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 Si111gh -seems to have been managing the estate on her behalf. Shortly before her death he managed to get from her deed 9f relase in favour of 1wo persons, Gaya Singh and Falgu Singh, alleged to be the sons of Ramdhan Sin:gh's daughter, Jayanti Kumari. In spite of the objecticms 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 proo:edings. ThiS led to number . of proceedings both civil and criminal. Ultimately thne.Yill;sioners, who are now the respondents ·in these appr,als, filed five suits, T.S. Nos. 53 and 61 of 1934 and 20, 29 and 41 of 1935 for possesslon._.of the estate. In 1936 anotl:ter suit, 'f. S. No. 37 of 1936 was filed biy the present plaintiffs 8 to 1.2, 15, 16 and 18 Ito 21 and Kunu Babu Singh, uncle .of the 11th plaiin-tiff. In that suit also Oaya Singh and Falgu Singh were defendants. In ·addition, the plaintiffs in T.S. No. 53. of 1934 and certain others w11re added as defcmdants. The plaintitls ill that suit claimed to be the nearest reven1ioners to the estate of Ramdhan Singh and also that there was custom prevalent in the falltlly for long time that mcire distant heirs than !he Shastric heirs of persori also joined. the latter in succeedin£ to the properties left behind by him. They wanted to be

Singh, behind about Kumari Si111gh before favour of

held as the nearest reversion~s 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 1~34, 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 plain~s. are also defendants. The plaintiffs in the title suits of 1934 and 19'15 are the nearer heirs of Ramdh.an Singh and are entitled .to succeed to his estate on 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 distant degree and would not be entitle9 to succeed to his estate under the ordinary rule of Hindu Law. Their claim is based on the plea of flpecial c.listom 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 genea-logical 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 place called Sandehpur. Though on behalf of the defendants the fai:t that the original faritily had migrated from Sandehpur was not admitted, point whitji 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 clistom put forward on behalf of _the plaintiffs were given not merely from tpe family <?~ Mohkam Singh but also from various other braii.~hes 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 custoni of Taraf Ram Charan that was pleaded but only the custom in the family of Ch. Mohkam Singh, Taraf Ram Charan being larger group. ·

Fifty two instances were sought to be proved on behalf of I.he plaintiffs. The learne.d Sub-ordinate Judge who tried the suit held forty-three of them proved. The learned Judges of the High Court felt that from reading of the plaint, evid~nce in connection with 'the ins-G tances 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 lhe Taraf Ram Charan, two of which were held by the learned Subordi-nate Judge as not proved. He, however, held all the three instances

from Mohkam Singh's family as proved. The learned Judges of the High Court, ho\'.'f'ever, on an exhaustive review of the evidence helld that none of the fiftytwo instances hacl 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 hear)ng both the parties on the question of the admissibility of the evid~nce we have arrived at the conclusion ¢at the only eYi-dence which c:an be taken fato account are the three instances in Mohkam Singh's family. Mohkam Sing_h himself seetns 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 great deal of care, which we shall now proceed to do. Before doing so, however, it is necessary to have clear idea as to what w~1s pleaded. The ~'U~tom pleaded was put in the following words in parn-graph 5 of the plaint :

"The Kulachar or ancient family c_ustom or usage with regard to succession which prevails from time immemorial in the family of the plaintiffs and defendants First, Second and Third parties arid which has been invaribaly and strictly followed observed ~d adhere·d to by the ancestors of .the parties and of which there is clear consciousness in the family is that when separated male member of the family dies without any issue, his estate devolves in the first ins-tance on his widow or widows, if there be any, and 011 the death of the widow or widows as the ·case may be or on the death of the said separated ~ale 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 capita and brothers of the last male owner share the estate equally with the sons and grand-sons of de_ceased brothers. Similarly, if the last male owrier had no brothers and his reversioners are his un.cles or cousins the !lame 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 1ssueless. In other words the rule of Hindu Law yiz. that the nearer in degree excludes the more remote is mo(Jified by the Kula-char to the extent enumerated above."

It wciuld be noticed that even the question of the father or mother 01 th~ deceased succeeding is not mentioned.

Now let us see if there is atiything in the plaint which had any reference to the descendants of Pran Thakur or his descendants in branches other than that of Ch. Mohkal!D Singh. Paragraphs l . 2 and 4 of the plaint are as follows :

"l. The plaintiffs and the defendants who are Bhumi-har Brahmins by caste belong to the same family and are

H, p, SINGH v. B. P. SINGH (A/.agiriswami, /,)

descended from the same common ancestor. Their relation-ship 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 fo!lawed theil' 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 1 the plaintiffs and defendanti are said to belong to the same family and 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 tho 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 iii the family of the plaintiffs and defendants which is tbe family of Mohkam Singh as already explained. Reference to the male member of the family dying sepa-rate and issuless in paragraph 6 can therefore refer only to the family · of the plaintiffs and defendants mentioned in par~gr'aph · 5. Then follows the statement in paragraph 7 which by reference to the genea-logical table appended to the plaint says that the common ancestor of the plaintiffs and defendants was Chowflhry Mohkam Singh. Para-F graph 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 issuetess and his property being divided equally per stripes · amongst the descendants of the remail).ing 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 declaration about the ancient custom, usage or Kulachar in the · family of the plaintiffs and defendants. Nowhere is there any refe-rence to Pran Thakur or his descendants or the twelve Tarafs or even Taraf Ram Charan as the one to which . the parties belonged. lssu~ ( 6) in the stiit 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 estab-lished principle of law of succession as alleged by the plain-13-L346Sup Cl/75

tills in para 5 of the plaint? If so, is it valid and binding on the parties affecting the succeesion of the heritage left by Ramdhan Singh deceased ?

There isL therefore, no room at all for any argument that the plaint proceeded on the ba8ia of the custom prevailing among all tho descendants of Pran Thaklµ'. It sequarely proceeded on the basis of the custom prevailing in the family of Ch. Mohkam Singh. Indeed the leal'.DCd Advocate for .the appellants stressed again and again that the plaint was drafted by very able advocate and was very co1rrect one. It is no doubt true that the witnesses for the plaintiffs as welll as defendants admit that they are all descended from l'ran Thakur. That seems to be the tradition in the village. It is said that there are about two thousand families in that village who claim to be descended from Pran Thakur. Though th.ere is evidence that youngsters in tlilese families are made to learn. by heart their genealogy it is probably only t.o the extent of the names of B!)ven generations which is neces-sary in the case of. religious ceremonies. Nobody could be remember· ing the genereallogy of over twenty generations from the days of Jiran Thakur. At the most it is matter of tradition and hearsay. We are saying. nothing about the admissibility or otherwise of hearsay evi· dence. Suffice it to say· that for the purposes of this .case the evidc1nce admitted cannot travel beyond the pleadings and therefore has tc1 be confined to the instances in Mohla!~n Singb's family.

Now on whom does the burden re11t and wh~t is the sc0pe of the evidence ths~t is admissible ? The earliest decision on the question regarding proof of custom in variance of the general Jaw is found in Ramalakshmi Ammal v. Sivanat/IQ Perumal Sethuraya (14 Moo. Ind. App. 570 @ 585) to the efiect : .

"it is .of the essence of special usages modifying the Qrdi· nary Jaw of succession that they should be ancient and in-variable.; and it is further essential that they should f>e estab-lished 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 condi-tions of: antiquity and certainty on which alone their legal title t.o {CC()gllition depends.''

This passaSe <!Vas quoted by this Court with approval in its decision in Pwhpavat_bi Viiayaram v. P. Visweswar (AIR 1964 SC 118) and tbis Court went on further to observe :

"In dealing with family C.'UStom, the same principle will have to be applied, though, of course, in the case of family c:ustom, instances in support of the custom may not be as !llanY or as frequent as in the case of customs pertain-ing tp ~~ territory or to the community or to the character of any (iState. In dealing with family customs, the consensus of opinion amongst the members of the family, the tradi-tional 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 evidem:e of such a. character

H, P. SINGH v. 5, P. SINGH (Alagiriswaml, /.)

appears to th.e Court to be suflicien"t that specific family custom pleaded in particular case would be held to be proved, vide Abdul Hussein Khan v. Blbil Sona (45 llid. App. 10: A.1.R. 1917 P.C. 181).

What is important is that the specific familr, custom pleaded in particular case sholjld be proveo. The specific family custom pleaded in this case is the custom of the 'family' of Mobkam Singh. Even though that 'family' itself consists of numerous fam,ilies descended from Prall 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 largti agglomeration of families. We might as well talk of the human family. Be that as it mey, there was no mention in the pleadings of the i;ustom prevailing_ among the descendants of Pran Thakur. Indeed nowhere in the course of earlier litigl\tions or documents, including T.S. No. 37 of 1936, is there mention of Pran Thakur and his family. Merely because the evidence with regard to the various branches, whictl are said to be descended from Pran Thakur, was lef in, apparently without any objection on the defendants' side, we aie not prepared to assume or hold that such evidence was admissible. The genealogical tree from Pran Thakur to Mohlcam Singh is at best, , .of doubtful valae even though the tradition among Pran Thakur'&,, descendants may be as put forward in ·the suit. The earliest document which we have examinea, 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 ab.out 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 t<?1.. or the reliability of the evidence regarding this genealogy it is dimcult to see llllY relevance of this genealogy as there is gap bet-ween that time and Mohkam Singh's days. The fact that family ·F belongs to taraf can have no significance as taraf is only portion of the village, and the fact that taraf is n8.I!led after person is no ,guarantee that all those living in the taraf are bis descendants. The evidence put forward, even though accepted on both sides1 with regard to persons descended from Pran Thakur milSt be held at ~st to be .a matter of tradition without µiuch historical val~ and much less evi• ilentiary value and of very. little assistance in deciding the question at issue in this case. Similarly, any oral evidence even if admissible abciut 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 doeuments at least about Mohkam. Singh's family but not about others. After hearing 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 belong-· ing to Mohkam Sin~h'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-dence in this case in relation to instances of custom in families 011her than those descend¢ from Mohkam Singh contain certain observa-tions which were relied upon by the plaintiffs. The ratio · of those decisions themselves have. nothing to' do. with the question of admis-sibility. lnde,ed, it is difficult to see any ratio in those decisions. They were all decisions as to succession which were based upon the con-clusions 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 discussion~ should be con-fined to the circumstances and the evidence in those cases ancf 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 r1:le- · v~t to the facts of those cases and can neither serve as precedent ht'this case nor can be considered to have laid down any principle of law. '

In Rajah Rup Singh v. Rani Baisni & 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 tbe ancient usage of raj of Bhara. in common wit([ .other families of the Rajahs was that upon the decease of Rajah his nearest and eldest male heir succeeds him to the ·ex-clusion of the other male heirs, and that total eitclusion of women. It was contended that case· had occurred in respect of the raj of Ruh Ruh in which widow had succeeded in preference to male colla- · teral. Ruh Ruh was said to be one of the five branches of whic BhiU'a was also om:. That was how the instance· regarding the Ruh Ruh estate was considered. That decision is far cry from the present cme where evidence regarding 2000 families said to. be descended from an almost mythical ancestor are sought to be let in without any plead-ing with regard to it.

In Garurudhwaja Parshad Singh- v. Saparandhwaja Prashad Sin.gh (7 In_d. App. 238) it was held:

"on thti! evidence, reversing the judgment of the · High Court, that the appellants had satisfied· the serious burden of proving special family custom of descent by primo-. gcniture.

The evidence shewed that for period of nearly eighty years from the .time of the British occupation of the dis-G trict in Vihkh lay the estate in suit, the enjoyment had been consistent 'with the alleged custom, and for the earlier and greater 11art 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 comiection with !hese facts that it was observed :

"A witness may state his opinion as to the ·existence of

family custom, and give as the . grounds thereof. informa-

tion derived from deceased persons. But it must be inde-pendent opinion based on hearsay, and not mere repetition of hearsay; see Indian _Evjdence 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 primo-B geniture prevailed in twQ other families, derived from _a common ance&tor and lent strong anteceqent probability to the appellant's case. In that very .. case the Privy Co'lihcil remarked that "a good deal of the evidence of statements made by deceased persons is of doubt-ful admissibility'', and after referrin..1f to the evidence of some of the witnesses the Privy Council said that they would not be disposed to place much relianee upon it standing alone. There is all the dt!Je-c rence in the world between two. families and two thousand families.In Ahmad Knan v. Channi Bibi (52 Ind. App. 379) it was held that "the cust9m could (lroperly be proved by general evidence given by members of the famil_y or tribe without proof of special instances." In !hat case there was large body of oral evidence establishing the custom, wholly unrebutted by the defendants, who relied exclusively on the district riwaj-i·~ 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 case where no evidence of specific ina-tances was given ~ut on the other hand evidence was given of largo number of instances most of which were held proved by the learned tri~ Judge and held fDot proved by the learned Judges of the High Court. We are not concerned in tJ:iis case with the custom prevailin& in particular family or tribe without instances.

In Rohan Ali Khan v. Chaudhri Asghar Ali (57 Ind. App. 29) in the case of dispute in one branch of the two families, one in the ruale line and the other in the female line descended from the same person, who had ·uved so long under the same conditions and have been so closely connected fogether 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 ille present one is too obvious· to need stress.

The ca8e in Maharaja Sris ,Chandra Nandi v. Rakhalananda Thakur (6J C.L.J. 520) was one where the evidence given. by the' plainillfs 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 docu-mentary evidence. In that case the proof of the tradition was also to be found in the documents supporting 'the statements of deceased persons. It is, therefore, not possible to diss.x:iate one aspect of the t decision from the o~er. It is very difficult to say whether without the documentary evidence the oral evidep.ce regarding proof would have been accepted. · ·

In A/ai Verma v. Vijai Kumari (AIR 1939 PC 22} it was said that the proof of actual instances of family custom excluding daughters from the inheritance was not necessary. For this statement reliance was placed upon th~ decision in Ahmad Khan v. Channi Jiiibi (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 custom, and the grounds of their opinion, thmigh generally in the nature ol; family tradition, were clearly admissible. In that case the custom was also :recorded in wajib-ui-arzes of every village owned by member of the family and they were very numerous. The Privy Council refexred to the probative value of these village records which had been recognised over and over ag~n 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 waj1'b·ul·arus.The dcchiion in Musammat S11bhani v. Nawab (68 IJ1d. App. p.1) was arrived at after elaborate discussion of the evidence in the case and examining numerous ~artier decisions on the point as well as. Rattingan's Digest of Civil Law for the Punjab and Wilson's Gem:ral · Code of the Tribal Customs in the Shahpur District of the Punjab: Ther!l are some interesting observations therein which show that the statements iri 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 long period and with such invariability, as to show that it has, by common consent been s111b-mitted to as the established governing rule of the particular district; with the modification that the word 'family' should be substituted for the word 'district' holds good iQ. every case. They also laid down that the initial onus lay on th~ p)aintiffs to prove the special cust·OID and that doe1; not in any way help the plaintiffs.

We shall now deal with the three instances relating to Mohkam .Singh 's family.

We should probably preface this discussion by saying that in T.S. No. 37 of 1936 tbel'jl was half~hearted attempt to prove the custom and the enly instance given was the present instance 10. It was held not proved _and as quite few of the present plaintiffs w1!re parties to thaf suit, the decision therein would be· res-judicata as against them. But we prefer to discuss the matter and decide it on its merits becau!:e there all the distant mversioners were nut parties un-like in this cnse. .

Instance No. 10 is regarding suc~ssion to the estate of Dip ~arain, Who died leaving behind his widow ?!!rkalo Kumari, who d1~ in th~ year 1914. At that time three nephews of Djo Narain,, Nirsu-plamtiff 8 . and Rarnnath-plaintifl 9, sons of his brotllell-G~nga, as well as Nunubabu the son of his bxother Ajodhya wi:re alive. Another son of Ajodhya, named Durga, died. leavin2 s-on ~adharaman, · ~laintiff 11. Bansi, the third brother of Dip Narain had . d1~ as al~o his son? Rarnsarup, leaving two sons Sheokumar a]nd Ra1eshwan. There !~ an ~krarnarna Ext. 18 dated 14-3-1916 as

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 undei which Ext. 18 camJl int~ existence. But the most significant fact is that Sheokumar ·and Rajeshwari. first claimed that they had been adopted by i>arkalo 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 claim on the basis of their being adopted sons. They did not claim on the basis of the custo!ll when they filed the petition in thl" land registration case. Ext. 18 itself mentions that Sheokumar and R,M,..4hwari filed. an application in the land registration case on the ground that they were adopted sons of Parkalo ~umari 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 fac!s we do not think that the mere mention of the custom in Ext. 18 establishes the existence of the custom now pleaded. Bx • .18 does not say what the custom was. ·There was some argument at the bar as to what exactly the. origi.'. nal 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 ourselyes that if there was such custom ·as alleged Sheokumar and Rajeshwari would not have made 'claim even in the first event on the basis of the custom. As Rajesh-wari and Sheokumar have not given· any evidence as to why they gave up the claim on the basis oC the adoption and the document itself, though it mentions custom, does not say that they were given some property on the basis of the custorfi or what the custom was, we · would, giving also full effect to the express disclaimer by both of them to any right, hold that Ext. 18, does not help to establish the existenc~ qf the custom pleaded. We are, therefore, of the poinion th!lt 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

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 intferited his property per stripes ~ording 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 .G 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 knowledi!e was not even ante-Utem motem. Moreover, the instance took place more tb_an 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 baseri ori what he heard from Wilayati Babu but als"o on his independent opinion about it. The learned Subordinate Judge does not place much reliance on P.W. 64 who is himself plaintiff. We are not able to agree with the learned Subordinate-Judge that if it can.be proved that the families of the fivebrothers were not. joint but were. separate the defence case must be . thrown out and the plaintiffs' case should be accepced. The matter is not as simple as that Even if Net and his brothers were separate tl1e question is who was alive when Net died. The learned Subordinate Judge's decision has simply proceeded on the basis of the brothers being.11eparak~. Nor is his discussion of th:e importance of Ext. 2:, correct. When it is stated in Ext. 23,. document of the year 181.i which should have been soon after Net's death, that his four brothers ii:ot 1 /2 anna share each ouf of his two annas share, it of course shows that the brothers w~re separate but it also shows that the four brother' were alive at the time of Net's death and they got his property. Thero is no mention here of other brothers or any of them being dead and the nephews or the grand nephews succeeding. We fail to undemtand how the learned Subordinate Judge accepted the submission on plain-c tiffs' behalf that the reference to four brothers has been made in tlio sense of their descendants. One cannot make out new case that is not found there. Exhibits 7, 9 and 23 all 1:0 to prove that the family wa.~ divided. Uut 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 ali!o how the descendants of the four brothers divided the property am011& · themselves. We, therefore, agree with the learned Jud~s of the Hi1~ Court that when Net Sing!) died his brothers were alive and they got his share. It does not make any difference to the case whether he dilld separate <,r 11ot. It is also seen that in view of the statement in El:t. 23 the learned counsel appearing for the appellants could not. prellS of this the instance l:figh Couit that vecy much. this We, instance therefore, also agree cannot with be the said learned to have Judges betia I, , [[r ]]proved.

I, , [[r ]].

The third instance is instance No. 23 regarding succes~ion to tho estate of Dr. Rameshwar Singh. Plaintifis' case is that when Ramesl~­war Singh ~ed about 25 years ago his properties were inherited 11y his brother, Dl:J...1Jll1Ilun, his nephew G<1vind and his grand nephew Harbans. P.Ws. 21, 24, 64, 68 and 79 were examined on behalf <:>f the plaintiffs. As against this D.W.61, who was examined on behalf.~ the defendants, said that Rameshwar died in state of jointness mth ·· hi4 broth. er and nephew. P.W. 24 said that Rameshwar and lib brothers were living in the same house:'· and the descendants of his brothers still live in .. the same house. It iS, therefore, ilot clinchil:lll piece of evidence. The evidence of P.Ws. 68 and 79 is not of niuc::h use a,, they de> not say that they witnessed the division. The learned Subordinate Judge relied on Exts. 43, 28 and 29 series to find i:n pleinti1fs' favour. On the other hand the defendants relied on Bit. · U59, deposition of Harbans Singh. who is plaintiff No. SO in this case. Ext. 43 shows that Gouri, Dhurunun and Harbans' .names ~eif> recorded in th~t document. There was also the. name of stranger to the family recorded in the document. 'Thc:re are three plots in thi:t land more or less of equal area. With regard to one plot it is melli-tioned that Harbans is in possession and in regard to another pfot

and lib of his clinchil:lll of niuc::h

H. p. SINGH v. B. P. SINGH (Alagimwami, I.)

that it is in possession of Gouri, Dhunmun and Harbans. There is also the word "Shamlat" which indicates that the property was un-divided. In any case i~ is not clinching piece of evidence.

''.As regards Ext. 28 series the learneC: 'Judges of the High Court inspected the counterfoils themselves and found , that the book which bore the signatures of defendants is re-stitched book and therefore held that. it lost its sanctity. It was also adnµtted that the original stiching was broken and new book was re-stiched and on seeing tho 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 title swt of 1926. There he said that he, Govind and Harl were joint and all their lands were joint. On behalf of the appellants much re-liance was placed upon the further statement that their houses wer1 . divided. But curiously though Harl is plaintiff No. 29, Govind's son is plaintifl No. 49 and Harbans is plaintifl 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 ofHarbaris in Ext. U59 was wrong, is curious one is correct. Another important fact L'I that Dhunmu11 was, one of the petitioners in Ext. EE and that he laid .a claim to th• property of Ramdhan as the next reversioner and not according' to tho alleged custom. We, therefore, agree with the learned Judges of the High Conrt that this instance has also not been proved.

, The significant, point in al! these three instances is the attitude of the parties concerned. , They did not come and give evidence whero they would have been the' best perions io explain the ~stances relating to those .instances even though as many as 81 instances were examined on their behalf. Y.W. 64 was the sole plaintiff to give evidence. Till this case started thC)' have nowhere, literally nowhere, .made claim solely cm the 'Qasis of the custom which they ,are now putting forward .. The (focumentary evidence which shows the actual attitude of the parties and their consciousness regarding , the cust«:l 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' witnesses had said that scnm of the witnesses, on the plaintiffs', side ~e respectable persons aDd they knew the custom better than they themselves knew. But such statements have to be evaluated iii the background of the history cl. . ~ this litigation. It is true that $e defendants, who are respondents tn thiF appeal, also pu~ forward some, 10 instances to disprove the plain-tiffs' case but did not succeed in oroviding them. But in the first instance it is for the plaintiffs to prove the txistence of the custom and it they fail to do so they cannot succeed on the basis that the defendants did not succeed in proving that the custom did not exist. In any case 811 we have held that instances in families other than those of Ch. Mobbm ff 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.

The earlfast of these documents is Ext. BB dated 25-8-1927, an application filed by Ohunmun Singh, father of Hari Singh, pl'llin.tifl No. 29 praying that the estate of Ram Ohan 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 false genealogy and was apparantly prepared in order to show t:ilat he was the nearest reversioner to Ram Ohan Singh's estate. the present case .regarding the special custom obtaining in the family were correct this document would certainly have mentioned the custom s1nd Dhunmun would have claimed to be reversioner on the basis of the custom. That he had to go to the extent 'of preparing false genea-logy in order to show that he was the: nearest reversioner falsifies the present coase about the custom. It should also be remembered tl~at accordmg to the case of the plaintiffs Dr. Rameshwar Singh's property bad been divided few years earlier according to custom and Ohunm.un was one of the parties involved.

The next document is Ext. E/10 dated S.4.1933. This is 1the d~d of surrender by Pari Kumari in favour of Gaya Prasad Singh and Fa!gu Prasad Singh. This document was attested by plaintiff 12; the father of plaintiffs 13 to 15; Sarobar Saran ancestor of p1'aintiffs 16 to 16E; and plaintiffs 29, 38, 46 and SO as well as defendants 4, ll l, l, 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 2:2 to 25. Though attestation by itself does not impute knowledge of the contents of the document to the attestors, it is ve:ry difficult to believe that the attestors did not know its contents. There liad been oa number of litigations, both civil and criminal, with reg2ird to Ramdhan Singh's estate by this tim1~ and an attempt had also· been· made, as shown earlier, to- bring it under the Court of Wards. 1he fact that Sunder Singh, the brother of Pari Kuamri, was managing . her estate has also been mentioned. The whole history of this aise shows that this is highly litigious community and they would certahlly not have attested the document without knowing what it was abo1~t. If they knew wlYat 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 p1re-sent defendarlts would be the nearest heirs and thus Uiese plaintiffs would not mind if somebody else got the property rather than tbe present defendants. Indeed they may even be interested in seeing that they also did not get any share out of R:Undhan 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 h'lllf among the defondants, was also party to these proceedings on behalf of Gaya Prasad Singh and Falgu Prasad Sin!tlt. But that was because he was clo-sely related to Sunder Singh, his son being married to his daughter a11d he ·stood to gain more by Gaya Prasad Singh and Falgu Prasad Sin1~h succeedin2 than by his own succession.

ll l, l,

The next document is Ex.t.C dated 29.5.1933 an· objection petitic>n filed by plaintiffs 8, 10, 11, 16, 18, 19, 20, 21 as well as Prabhu O.~ Narain, father of the plaintiffs 13 to 15 and Nuju Babu Singh unc:le of 11th plaintiff. Along with the objection petition a· genealogy v.•as

H. p, SINGH v •. B. p, ~!NOH. (Alaglrlswaml, /.)

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 Blrairo 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 wro:1g 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 Sarai}. 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 custom was put for-ward in this document it was alleged to be custom in the family, in the village.and in the vicinity and significantly enough· he has notjoined the plaintiffs in this litigati<:>n 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 b~other, Dwarka Prasad Singh, the 2nd p~aintiff 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 pfaintiffs, Ram Khilavan Singh, Ram Kishori Singh,.Nanu Babu Singh, plaintiff 36, Ram Behari Singh, plaintiff 38 and. Deonath Singh gave evidence on behl;llf 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 diii 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 theinselm 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 plain-tiffs 5 and 5-A; Sheobhaju Singh, plaintiff 3; Jittu Singh, plaintiff 7; Ram Pratap, plaintiff 27, Janardan Singh, 34; Deonath Singh belong-ing to the family of plaintiff 34; Godawari Singh, defendant 44; Singheshwar Singh, plaintiff- 46; Vidya Singh, plaintiff 47 and Ram Be-hari, 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 118. 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 custom· they claimed to be the nearest reversioners according to the Shastras. Th<: genealogy tree filed in that suit showed Dalip Singh as son of· Kalya1i 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 NiraJl.

In support of their· C'ase Ram Nath Prasad Singh, the present plaintiff 9, who was plaintiff 5 in that suit, was examined. He gave evidem:e $aying that Mohkam had two sons, Net and Kalyan, that Net died issueless and that Sumer, Bhairo Narain 'and Narain Datt are not i.ons of Ch. Mohkam. In that very suit Singheshwar Singh, plaintifi 46, Ram Kishore father of plaintiff 29, Ramkbelavan Singh, 13th Defen-dant, Nanu Babu Singh, plaintiff 36, Badri Singh, plaintiff 5 were examined on behalf of Gaya Prasad Singh and Falgu Prasad Singh 1L& shown by Ext.U/11, 19, 3, 43 and 44. Sheobhaju Singh, the preseut plaintiff 3 whose deposition is marked as Ext. U /7, 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 defen-dent; Ext.16-A, deed of sale by B11rho Singh, 5th defendant, to Ram Saran Singh, 12th defendant; Ext.16-F, deed of sale l)y Za1im Singh, the 4th defendant, in favour of Bindo Singh, and Ext.16-E, 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 m-cognised the right of the more distruit reversionel'S. It should be remembered that thes€: documents are all of the year 193 7 when the earlier . litigation had not ended. The documents themselves show that the, executants were poor men and they were being financed by the more distant relatives. The doctL-ments themselves purport to be out 'and 1out sale deeds and in the at>-sence of anY evidence by the parties to those documents who arc pw:-ties in this suit but have· not given any evidence .as to why and ho111 those documents were executed or the recitals in those documents were :n: put in we cannot place any reliance upon them as establishing that the documents show recognition by the near agnates of the rights of distant agnates. They seem to be.documentS executed because <>f the financial help received by the executants and partly perhaps to buy up the rich and powerful relatives who might otherwise give trou-ble. We are not inclined to attach much importance to them as esU1-blishing the custom pleaded. Ext.17-A does not carry the case of the plairitiffs any further.

We are, therefore, satisfied that the plaintifts ap_pellants have tailed to prove the c:ustom pleaded by them. Their attitude throughout iis -consistent only with their consciousness that they had no right to C•r any share in Ramdhan Singh's estate. If they had they would Jra1·e joined the plaintiffs in title suits Nos. $3 and 61 of 1934 and 20, 29 and 41 of 1935 or filed independent suits themselves at the same time puttina forw111d their claim on the basis of custom. On the othe:r hand they supported the defendants in those suits. It would have 01:-curred to the meanest intelligence that if the defendants in those suits succeeded the present plaiitiffs 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 share. And these are not ignorant men but confirmed :litigants. Not even one plaintiff among the many wb() were parties tQ the various documents so far considered has dared t1) :&ppear 1s witness ·and explain the contents of those documents whiclil

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 onlv after the success of T.S. Nos. 53 and 61 of 1934 anti 20, 29 and 41 of 1935. They have been more consis-tently siding with Gaya Prasad Singh and Falgu Prasad Singh b<:cause they knew that they had no rights and there was no custom and they had nothin2 to lose if the present defendants-respondents lost in that litigation. On the earlier occasions whenever they tried to put forward claim it was on the basis of beTug 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 ~hem. At best it will be case of hard swearing on either side. We would rather place reliance on the documents and the attitude of the parties as shown bv 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 shar~ after the title suits filed in 1934 and 1935 succeed. One, man may lrave kept quiet .but not host of people on such promise. Even if promises were made they would have insisted on something bein3 given in writing. In 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 imposter~ 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 share. . It is. baseless claim oand the plaintiffs have failed to prove the custom' pleaded by them.

Before we conclude we must refer to the preliminary objection. raised on behalf of the respondents that the appeals should be dismiss-ed and the contention on behalf of the appellants that the appeals be-fore the High Court in this case should hoave been dismissed and conse-quently 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 Sin2h soil of Dhunmun Singh died in 1953. His widow Manmohini' and son Raktoo Singh, apJ?eUant 88, were substituted in his place on 12.8.1953. With the coming intci force of the Hindu Succession Act the share of the widow in her hus-band's estoate became full estate. Manmohini 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 Manmohini's legal representatives oand her name may be struck off. They did not want to proceed with the application for adding legal representatives. The Registrar also boas recorded that the application was not pressed. On 27.4.1968 the respondents made an application stating that the appeal had abated oas Manmohini's dau2hter Ghia Devi had not been added as party. On 30-7-1968 a-fresh application was filed for adding Ghia Devi as ~ legal r~prese~­tative and. praying that the abatement may be set aside. This applt-·

caticm was dismissed on 30.8.1968. The order on that application 'WU:

'.'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: 'l'hC question as .to the effect of this order will be considered at the time of the final hearing of the appeals."

The contention is that as Ghia Devi was not added as legal :re-presentative after ~er 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 sou~:bt to be sustained on the basis of the decisions of this Court in The Smte of Punjab v. Nathu Ram (1962(2) SCR636) and Remeshwar Pras,rid 'V. M/s. Shyam Behari1al 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), Do/oi Mol/iko v. K. C. Patnalk (1966)(Supp)SCR22), Ratan Lal v. Lal. Man Das '1970(l)SCR296) and Mahabir Prasad v. /age Ram (1971(3~SC.R 301). We consider that there is no substance In the preliminary ob-jection raised on behalf of the respondents and it shoilld be rejected. As was ~oipted out by this Court in Daya Ram v. Shyam Sund,1rt (supra) m Ram Sarup v. Munshi (1963(3)SCR858) one of the appul-aants had died pending the appeal and his leial representatives were not brought on record. As the decree was JOint one and as part ,of the decree ha1:l become final bv reason of the abatement it was held · that the entire appeal must be held to have abated. The State of Pun-/ab v. Nathu Ram (supra) was case where joint decree had bem passel:! in favour of two individuals and that was challenged in tile appeal before the High Court. It was common ground that the appeal against one of' the joint decree holders and abated owing to none 1:>f his legal repre~entatives having impleaded within the time limited by _ law and there being none on record to represent his estate. In such <:ase the only question that could arise would be whether the abati~­ment which e.t concessis took place as regards one of the respon-dents should be confinetl to the share of the deceased respondent .118 against whom the appeal has abated, or whether it would result in tll1e abatement of the entire appeal. This would depend on the nature <>f the decree and the nature of the interest of the deceased in the proper-ty. If the decree is ·ioint and indivisible, the abatement would be total. That was nreciselv the question which was raised in Nathu Ram'&' case and the decision in Ram Sarup v. Munshi is also an mustration of the same principle.

In Rameshwar Prasad :Y. M/s. Shyam Beharilal Jagannath nine persons including instituted suit for ejectment and recovery of ren:t against two defendants and obtained decree. During the pendency of the second appeal in the High Court K died. His legal representa-tives not having been added the appeal abated as far he was concerned. When the appeal came up for hearing the respondents took preli-minary objection that the entire appeal had abated. The appellants claimed tlmt the appeal was maintainable on the ground that the sur·

1 viving appellants could have filed the apfeal against the entire decree in view of the provisions of 0.41, r. 4 o the Code of Civil Procedure aud that they were, therefore, competent to continue the appeal even after the death of K and the abatement of the appe'al so far as he was concerned. It was held that the provisions of 0.41, 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 re.. verse and vary the decree in favour of all the plaintiffs or defendants under 0.41, r. 4 when the decree proceeded on ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appealed from the decree and any of lhem died and the appeal abated so far as he was concerned under 0.22, r. 3. It was also held tliat the provisions of 0.41, r. 33 were not applicable. The contention that all the appellants belonged to joint Hindu family<was rejected in that case. It was also heid that 0.41, 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 0.41, r. 4 became unavailable.· It was also held that if sume party dies during the pcndency of the appeal his legal reprc· sentatives have to be brought on the record within the period of limita-D tion, und 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 t!lken by the Bombay, Calcutta and Madras High Courts in Shripad Ba/want v. Nagu Kusheba (ILR 1943 Born. 143), Satulal Bhattachariya v. Asiruddin Shaikh [ILR (61) Cal. 879] and Soma-su11daram Chettiar v. Vaithilinga Mudaliar [ILR ( 40) Mad. 846] res-pectively 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 0.41, r. 4 when the decree proceeds· on ground common to all the plaintiffs or defendants.

The important point to note about this litigation is that eoach of the reversioners is entitled to his own specific share. He could have sued for his own share and got decree for his share. That is why five tide 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 plain-tiffs 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. 11:s regards the other plaintiffs or the appellants. Furthermore, the prmc1-ple that applies to this case is whether the estate of the deceased appellant or ·respondent is represented. This is not case where no legal representative of Manmohini was on record. Order 22, r. 4 of the Civil Procedure Code reads :

"4. ( 1) Where . . . sole defendant or sole surviving defen-dant di.es and the right to sue survives, the Court, on an

application made in that behalf, shall cause the legal re-presentative of the deceased defendant to be made party and shall proceed with the suit.

4. (3) Where within the time limited by law no applica-tion 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 plaintiff or an appellant after diligent and bona fide enquiJry ascertains who the legal representatives of deceased defendant or res-pondent are and brings them on record within the time limited by law, there is no abatement of the suit or apjpeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and the decision obtained with theni on record will bind not merely those im" pleaded but tfae 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 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 party dying penqing suit and it would be specially so in the case of a. Muhammadan party and there can be no hardship in provision of law by which party dying during the peridency of suit, is fully represented for the purpose of the suit, but only for that purpose, by 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, thpugh 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 case where the person brought on record is legal representative we consider that it would be conson'allt with justice and principle tlrat in the absence of fraud or collusion the bringing on record of such legal representative is suffi-cient to prevent the suit or the appeal from abating."

In Dolai Molliko v. K. C. Patnaik on the death of one of the plaintifls-appell'ants in an appeal pending before the Subordinate Judge bis widow and the major son were substituted on record as heirs. It w:as later discovernd that the deceased had left some other heirs besides the two. The respondents raised an objection that as some of the lieirs 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

widow and the mjor son who had applied for being brought on re®rd, 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 circum-st'ances which indicate that there has not been fair or real trial or that against the absent heir there was 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 o~serve:

"It will be noticed that there is one differeni;e between the present case and the two cases on which reliance has been placed on behalf of i.he appellants. This is not aise where plaintiff or an appellant applies for bringing the heirs of the deceased defendant or respondent on the record; this ·is case where one of the appellants died and his heirs have to be brought on record. In such case there is no question of any diligent or bona fide enquiry for the deceased appel-lant's heirs must be known to the heirs who applied for being brought on the record. Even so we are of opinion that un-less there is fraud or collusion or there are other circums-tances which indictate that there has not been fair or real trial or that against the absent heir there was . 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 re-cord and any of them should be deliberately left out. But if by oversight or on account of some doubt as io who are the heirs, any heir of deceased appellant is left out that in itself would be no reason for holding that the entire estate of the dece'ased 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 fair or real trial, nor can it be said that against the absent heir there was special case which was not and could not be tried in the proceeding in his abseace." 4-L346SupCl/75

It must be made clear that the fraud or collusion mentioned must be fraud or collusion between· the appellant on the one hand and the re-presentative 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 Manmohil\l, on roo)rd cannot be said to be fr.iud on the part of her brother Raktoo Singh in collusion with the respon-dents nor can he deprive Ghia Devi of her rights by not impleading her as the legal representative of their deceased mother. The fraud contemplated is fraud or collusion between the parties on record to the detriment of the legal representative who has not been brougllt on record.

In Ratan Lal v. Lal Man Das (supra) the respondent obtained joint decree against the appellant and his partner M. Against the decree, the appellant alone appealed to the High Court. M was im-pleaded as the second respondent in the appeal. The notice of ap1>e&.1. sent to M was returned unserved. The High Court dismissed the appeal. Thi~ 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 ta possibility of two conflicting decrees."

and pointed out :

"The object of the rule is to enable one of the partieS to suit to obtain relief in appeal when the decree appealed from pwceeds on 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 i11 Karam Singh Sobti & Anr. v. Shri Pratap Chand & Anr. [1964 (4) SCR 647], wiiere it was observed: ·

"The~ suit had been filed both 'against the tenant and the sub-tenant, being respectively the Association and the appel~ !ant. 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 oa.ffected by the Association's decision not to file an appeal. There was one decree and, therefori~, the appellant was entitled to have it set aside even though 1hereby the Association would alsi:> 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 Asso-ciation .to him. He could challenge that decree on any ground available. The lower appellate Coilrt was, therefore, quite competent in the appeal by the appellant from the joint decree in ejectn1ent against him and the Association, to give him whatever' relief he was found entitled to, even though the Association had filed no appeal."

In Mahabir Prasad v. !age Ram (supra) it was held:

"Where in proceeding party dies and one oI the legal representatives is already on the record in another capacity, it is only necessary that he should be. described by an appro-priate 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 application for · impleading them is made within the period of limitation pres-cribed by the Limitation Act the proceeding ~ill riot abate."

That meets the point raised by the respo11dents 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 beh«ilf 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 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 tQ,implead Nirsu Prasad Singh as party on the ground that he was not impleaded as respondent by mistake. This was dismissed by the High Court on 1-3-1951. No body seems to have noticed that Nirsn Prasad Singh had not been made party in P.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 men~ioned and the learned Judges brought this fact to the notice of the parties and the appellants in P.A. No. 333 thereafter put in an application under Order 41, rule 20 oand section 151 of the Code of Civil Procedure for adding the name of Nirsu Prasad Singh as party. We will quote the learned Judges on this point :~'Although Jeft to ourselves, we would have allowed this application and added Nirsu Prasad Singh as 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 'P.A. 332 / 48 and we, therefore, rejected this appli-cation by our order No. 145 dated 22-4-1959 passed in P.A. 333 / 48. The position, therefore, is that Nirsu Prasad Singh, plaintifi No. 8 is not 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 aild P.A. 333/48 have been impleaded as respondents in F.A. 326/48. Therefore, even if we dismiss these two appeals · on the grourid of this highly technical objection, it is possible to give relief to the appellants of these two appeals in P.A. · 326/48 under order 41. rule 33 of the Code of Civil Pro-• cedure. Since plaintiff .No. 8 is ll'arty respondent in P.A. 32(\/48 al~ng with ill othei: plaintiffs, ther~ will be no con-flict ot·deeree and the result of our allowmg F.A. 326/48, . which has got to· be allowed in view of ~ findin~ ·above,

would be to set aside the entire decree in favour of the plain-tiffs-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 Coiirt was right. Against the same decree passed by the learned Subordinate Judg(~ there were three appmls. In one appeal, that is P.A. No. 326 of 1948, Nirsu Prasad Singh was impleaded as party but not in the other two appeals. P.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 0.41 r. 4 and r. 33 to have allowed the appeal in full and given relief not merely to the appellants in P.A. 326 but also to the appellants in F.As 332 and 333 assuming that they had not fil1~d these appeals. The utmost that can tie said is th•at the effect of the failure to implead Nirsu Prasad Singh as respondent in F.As. 3;12 and 333 is that these two appeals will have to fail but that does not mean that P.A. 326 has also to fail. It is not even 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 P.A. 326. They had filed appe•als 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 party. To such case 0.41, r. 33 clearly applies.

The cases where the provisions of 0.41, r. 33 can be applied have. if we may say so, been set out correctly after very full discussion by Bench of: the High Court of Madras in its decision in Krishna Reddy v. Ramired(ii (AIR 1954 Mad. 848). Speaking through Vcnkatarama Aiyar, J., as he thei:i was, the Court observed :

"Though 0. 41, R. 33 confers wide and unlimited juris-diction on Courts to pass decree in favour of party who has not preferred any appeal, there are, however, certain well defined principles in acqoi'dance with which· th'llt jurisdiction should be exercised. Normally, party who is aggtieved by dect',ee 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 0. 41, R. 33.But there are well recognised exceptions to this rule. One is where as result of interference in favour of the appellant it become:s necessary to readjust the rights of other parties. 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. third class of cases is when the relief prayed for is single and indivisible but is claimed against 'll number of defendants. In such cases, if the suit is decreed and there is an appeal only by some of the defen-dants 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

decrees which are inconsistent and contradictory. This, how-ever, is not an exhaustive enumeration of the class of cases in which courts could interfere under OAl, R. 33. Such an enumeration would neither be possible ncir even desirable.

Considering the question on principle, when decree is-in substance combination of several decrees agaiiist 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 reversioner files 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 separate suit in respect of t•ach 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 appeaJ were to be preferred against the decree in only one of them and that ;ippeal 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 0.41, 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 11 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 respondent, it only means that the decree in his favour cannot be set aside or modified even if the appe•al succeeds against other plaintiffs in respect of their interest. There would in that case be no conflict between the decrees· as the decree is combination of many decrees. In other words the result of the failure to add Nirsu Prasad Singh as respondent in F.A. 332 and F.A. 333 would be that the decree granted in his fuvour 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 pl'aintiffs could have been reversed. This is not case where party who is aggrieved by decree fails to file an appeal within the time allowed by law and should not, .therefore, be granted relief under 0.41, r. 33. .

We do not think that the decision 'relied upon by the appell'ants in lhinghan Singh & Anr. etc. v. Singheshwar Singh & Ors. etc. (C.A. Nos. 114-122 of 1958 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 other appeals. Kaushal Kishore Pra58d Singh was one of the appellants in C.A. Nos. 116 and 117· and res-

ponden·t in the other appeals. Both of them died and the pending appeals a1'at€:d against them. The contesting 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 Prasad Singh and this objection was accepted. The decision proc.eeded on the basis that the plaints in the several suits raised dispute between body of landholders claiming khas posses-sion of the lands and numb~r of perrnns chiming to be occupancy tenants thereof, that in substance, the plaintiffs asked for an adjudica-tion tliat the lands were bakasht and the first party defendants were not occupancy terrants 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 tdal Court and in those appeals also Singheshwar Singh and Kaushal Kishore Prasad Singh were necessary parties, in the absence of tl:J1eir Je~l 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 common question to which all the land hglders were necessary parties. As we have explained earlier that is not 1the 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 tJtat 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 pre-sent suit. There is no doubt that the allegations made in the plaint clearly show that the dispute is between the land-holders and the person who claim to· be occupancy tenants, and so, it is plain that in such dispute the whole interest of the landholders an~ the whole interest of the tenants must be adequately represented. The tenancy rights which the appel-lants claim are no doubt based o:n the presumption under s. 5(2) of the Tenancy Act. But the relationship in respect of which the said presumption would arise is relationship of landlord and telll1Ilt, and this relationship in the very nature of things. is one and indivisible. Therefore, when ~ is

H. p, SINGH V. B. P. SINGH (Alagiri.swami, /.)

fff

made to evict the persons who allege that they are tenants the whole of the landlord's iriterest must be before the Court."

was cited with approval in lhinghan Singh & Anr. etc. v; Singheshwar · Singh'& Ors; etc. (supra). It .does not, therefore, stand on any difte-B rent footing.

We hold, therefore, drat the learned Judges of the High Court were correct in holding that at least F.A. 326 had not .abated because of the faHme to implead Nirsu Prasad Singh as respondent in F.As. 332 and 333 and it was open to the Court in F.A. 326 in .exercise of its pc>wers under 0.41, r. 33 to give all the appellants therein, that is, the respondents in the appeals before this Court, the relief that the appel-. !ants in F.A. 326 were entitled to. The plea of the appellants is, therefore, overruled.

In the result the appeals are dismissed with costs, one set, hearing fee.