- (1.) THIS appeal has been filed by the plaintiffs against an appellate order of the Additional Commissioner, Udaipur, dated 6-6-1955 in a suit for division of a holding.
(2.) THE plaintiff-appellants alleged in the plaint that Nathan, who was impleaded as defendant No. 1 in the suit and who has since died, transferred the holding in favour of his brother Abdulla by means of a gift, that Abdulla left behind four sons, two of them being the plaintiffs and the other two being impleaded as defendants Nos. 2 and 3, that defendant No 2 ha taken possession of the entire of the holding and that the plaintiffs being equally eligible for a share in the holding prayed for a division the same. Gulam Rasul defendant No. 2 resisted the claim on the ground that Nathan made a gift of the land exclusive in his favour and that the plaintiffs had no title to claim a share therein. Mohammed Saddig defendant No. 4 did not care to defend the suit which proceeded ex parte against him Subsequently Nathan died and the plaintiffs applied for appointment of Gulam Rasul as the legal representative of the deceased. THE lower appellate court held that as this application was presented one day beyond limitation, the entire suit should abate. Hence this second appeal. We have heard the learned counsel appearing for the parties and have gone through the record as well. We have no hesitation in observing that the learned Additional Commissioner failed to apply the law correctly on the point at issue. Most of the judgment of the lower appellate court is concerned about the question as to whether there ought to be a partial abatement in the case or not. A reference is made to pages 2688 and 2699 of Chitley's C. P. C. We would invite the attention of the learned lower court to note 12 on page 2692 of the same learned author. It is stated therein that it may be taken as fairly well settled the where the legal representatives of a deceased defendant are already on record in the suit, though in another capacity,no application is necessary under this rule (Order 22, Rule 4 C. P. C. to implead them as legal representatives,and the suit will not abate by reason of the absence of such an applicatidn. "the learned counsel appearing for the respondents has cited A. I. R. 1947, Patna 257. On going through this decision it becomes clear that its facts were entirely different form those of the present case. That was a suit under Order 21, Rule 63 C. P. C. in a representative capacity on the allegation that the title in the properties in suit never passed from defendant No. 1 to defendant No. 2 (his wife) as the alleged deeds of gift and sale-deed executed by defendant No. 1 in favour of defendant No. 2 were inoperative and the plaintiff persisted in this position when after the death of defendant No. 2, the deity in whose favour defendant No. 2 had transferred the property by will, applied to be made a party and on the objection of the plaintiff an order was passed that the deity should not be added as a party. It was held that the fact that defendant No. 1 who was made Shebaiti by the will of defendant No. 2 and the fact that he was already on record would be no avail since it could not be said to be a case where defendant No. l as a Shabaiti of the deity was already on the record because the plaintiff had refused to recognise him as such and insisted that he was on the record in his personal capacity and only as the owner of the properties in the suit and not as legal representative of defendant No. 2. The suit against defendant No. 2 was, therefore, held to have abated. In the present case the plaintiff's case, read from its inception, has been that Nathan executed a deed of gift in favour of his brother whereby they have acquired a share in the land in dispute. Gulam Rasul contested the claim on the ground that Nathan executed a deed of gift in his favour exclusive and that the plaintiffs have no share therein. The death of Nathan has in no way affected the pleading of the parties which continue to be the same. There can thus be no question of an application under Order 22, Rule 4 C. P. C. the present case. In A. I. R. 1936,patna 548, it was held that when the representatives of the deceased party are already on record and the right to sue and to sued survives in the remaining plaintiffs or the remaining defendants the case comes within rule 2 and not within rules 3 and 4 of Order 22 and no application for substitution is necessary. In A. I. R. 1939, Oudh 155, it was held that as the son of the deceased father was already on record no application for substitution was necessary in the case. A similar view was expressed in A. I. R. 1949, Sind 23. As the legal representative or representatives of the deceased Nathan are already on record, no application for substitution is necessary in the present case, and the abatement order passed by the lower appellate court is clearly untenable. We would, therefore, allow this appeal set aside the order of the lower appellate court and remand the case to the trial court with the direction that it be proceeded further in accordance with law. .;