JUDGMENT
Broomfield, J.
1. A preliminary objection has been taken that this appeal
has abated because appellant No. 2 died on August 12, 1937, and a belated
application by his sons to be brought on record was dismissed on March 5,
1941. Mr. Bakhale who appears for the respondent cites Vagha v. Manilal (1934) 37 Bom. L.R. 249
and argues that because the appellant-plaintiffs are joint owners they must
all be parties to the appeal, and as the appeal has abated in the case of appellant No. 2, it should be taken to have abated altogether. We think that
there is no substance however in this point.
2. It appears that the appellants sold all their rights to a third party, a
vahivatdar of a temple at Satara, on July 31, 1936, after which they ceased
to be interested in the property in dispute. The new; owner has been made
appellant and permitted to proceed with the appeal by an order of this Court
made on June 25, 1941. Mr. Bakhale has contended that this order should
not have been made because the appeal had abated before that. It is unnecessary to consider whether there is any substance in that argument because
the case is clearly covered by O. XLI, Rule 4, of the Civil Procedure Code. The
cases cited by Mr. Dharap, Chandrasang v. Khimabhai (1897) I.L.R. 22 Bom. 718 Chintaman v. Gangabai (1903) I.L.R. 27 Bom. 284, s.c. 5 Bom. L.R. 90 and Satulal Bhattacharjya v. Asiruddin Shaikh (1934) I.L.R. 61 Cal. 879, make it quite plain
that the death of one of two joint owners during the pendency of an appeal
does not prevent the appeal being prosecuted by the other. In fact there is
no rule that all joint owners must be parties to appeals, although it has been
held that they must be parties to suits.
3. On the issue which we sent down, both the lower Courts have found that
the plaintiffs have the right by virtue of usage to enhance the rent. The
trial Judge found that they had the right to enhance to the extent of three
times the assessment, namely Rs. 53-13-0. But the Assistant Judge takes
the view that it should be up to two and a half times the assessment, namely
Rs. 45 a year. Mr. Dharap accepts that finding. The result is that the
original decision of the Subordinate Judge on March 16, 1933, turns out to
be correct. Appeal allowed. Judgment and decree of March 16, 1933,
restored. The appellants must get their costs throughout.