JUDGMENT
S.Sarwar Ali, J.
1. Four of the plaintiffs are appellants in this second appeal. There were 6 plaintiffs when the suit was originally filed. The suit was for declaration of title and recovery of possession in respect of the suit land, being about 3 kathas in area. The suit was decreed. An appeal was preferred by the defendants first set. Ramsarup Singh and Ramjiwan Singh (Plaintiffs Nos. 3 and 4) were made Respondents 3 and 4 in the appeal. It is not in dispute that these two plaintiffs-respondents died during the pendency of the appeal in the court below. It is also not in dispute that there was no substitution of the heirs of the deceased plaintiff-respondents. The title appeal, however, was allowed and the suit has been dismissed.
2. The first contention that has been raised on behalf of the appellants in this Court is that the plaintiff-respondents Nos. 3 and 4 having died in the court below and no substitution having taken place, the appeal in the court below had abated. Consequently, the judgment and the decree of the lower appellate court must be set aside.
3. In this Court, an affidavit has been filed on behalf of the Respondents, in which a genealogical table has been given and it has been stated that appellant No. 1, who is the eldest member of the family, is the Karta of the family and represented the interests of each and every member of the family, including the heirs and legal representatives of the deceased plaintiff-respondents Nos. 3 and 4, in the lower appellate court.
4. The main question, therefore, for consideration that arises in the context of the points raised in this Court is whether the suit filed by the plaintiffs was a suit in which one of the plaintiffs represented the entire body of the plaintiffs. It has been pointed out in several decisions that, whether one of the plaintiffs (as karta of a Hindu Joint Family) represents the joint family in a particular litigation depends on the facts and circumstances of each case. The question of representation in every case Is essentially or entirely one of fact.
5. So far as a joint Hindu family is concerned, there may be two situations. In one situation the Karta of the joint family is impleaded in the suit as the Karta, and, therefore, represents the family. The other members of the family may or may not be impleaded in the suit. If they are joined, in such a situation, they are not necessary parties and their being joined in the litigation is mere surplusage. The other situation may be that although there may be a joint Hindu family, yet in the litigation itself no individual member of the joint family is impleaded in a representative capacity. Consequesnces will be widely different in these two situations. In the first situation if one of the members of the joint family dies and no substitution takes place, the family will be deemed to be represented through the member who was representing the family in the litigation. In the second situation, however, if there is a death and no substitution takes place, there is abatement, so far as the heirs of the deceased are concerned. The two differing situations, as mentioned by me just now, can be well illustrated by the two decisions, reported in AIR 1953 Pat 324 (Awadh Bihari Prasad v. Jhaman Mahto), and AIR 1953 Pat 326 (Jaigobind Missir v. Nageshwar Prasad).
6. In the light of these discussions, it may now be necessary to examine the plaint in the suit. Paragraph No. 1 of the Plaint is as follows:
;g ds ekeqnbZ;k u- 1 rk 4 esEcjku
[kkunku bZ teky gerke oks gedkj okj gS oks eqngs ;ku u- 5 oks 6 eh esEcjku [kkunku
bZ teku gerke oks gedkj okj gS] ysfdu l;eqlogk ekeqnbZ;ku u- 1 rk 4 ds eksfj’k
okcw twxwyflag ekS- ds uke ls oks u- 5 ds uke ls bZtekyu ,d gh nkLrkost ls [kfjn
gqvk gS oks gukSt bZteky gS bZlfy;s ekeqnbZ;ku vius cky cPpsa dks fjiztsUV djrs
gw, cehdnesa gktk eqnbZ;ku djkj fn;s tkrs gSsaa A
It has to be noticed that in this paragraph, although it is stated that the plaintiffs 1 to 4 are members of a joint Hindu family, it is not stated as to who is the Karta. If representation through one of the plaintiffs was intended, one would expect that there would be mention of the fact as to who was the Karta of the joint family. It is further to be noticed that in the latter portion of this paragraph, it is stated that the plaintiffs are being impleaded as representing their own children. This, to my mind, negatives the theory of representation. I am, therefore, of the view that on the plaint, as filed, it cannot be said that one of the plaintiffs represented the entire family.
7. Learned Counsel for the respondents relied upon a decision of the Supreme Court, in Civil Appeal No. 836 of 1964 (Naraindas v. Ram Kishan) disposed of on 3-2-1967 (SC). In this case, one of the appellants died, while the appeal was pending in the Supreme Court. Their Lordships observed that it was not necessary to bring the heirs of the deceased respondent on the record, because
“the suit and the appeal therefrom in the High Court proceeded on the footing that the appellants formed a joint and undivided Hindu family and, therefore, the first appellant as the father and Karta of the family represented all its members, including the heirs and legal representatives of the deceased second appellant.”
It thus appears that in this case, on the facts and in the circumstances of the case, their Lordships held that the first appellant being the Karta of the family, represented all the members. This case is, therefore, on facts distinguishable from the present case. Moreover, in the case before the Supreme Court, even if some of the members of the family had not been impleaded initially in the appeal, the appeal would have been competent, in view of the principles laid down by the Supreme Court in the case of Mahabir Pra-sad v. Jage Ram, AIR 1971 SC 742. For all these reasons. J think that the Supreme Court decision relied upon is distinguishable.
8. I am thus of the view that the appeal in the court below had abated as against the heirs of the deceased respondents. I am also of the view that, as a result of the said abatement, the appeal in the court below abated as a whole, for the appeal if allowed would result in conflicting decrees (see State of Punjab v. Nathu Ram, AIR 1962 SC 89).
9. In these circumstances, the judgment and decree of the lower appellate court have to be set aside. The learned counsel for the respondents first set stated that in view of my decision, he should be permitted to file an application in the court below for setting aside abatement and for substitution of the heirs of the deceased respondents in appeal in the court below. I think, this prayer should be allowed. I would accordingly, set aside the judgment and decree of the lower appellate court and send the case back to the court below, with a direction that if such an application is filed, it may be considered by the court below on merits after considering objections, if arty, filed on behalf of the plaintiffs. Thereafter, the learned court below should dispose of the appeal in accordance with law. There will be no order as to costs in this appeal.