Judgment U.N.Sinha, J. 1. This appeal has been flied by the defendants and a cross-objection has been filed by the plaintiffs. The appeal arises out of a suit instituted by the plaintiffs for redemption of a usufructuary mortgage of the year 1898. That suit was dismissed by the trial Court. But, on appeal, the suit has been decreed in part, that is to say, the plaintiffs suit for redemption has succeeded, but the claim for mesne profits has been dismissed. Hence the defendants have come up in appeal and the plaintiffs have filed their cross-objection on the question of mesne profits. 2. The facts are as follows: According to the plaintiffs, one Narkoo Singh was the common ancestor of the plaintiffs and others and Narkoo Singh had four sons named, Samarth Singh, Ramsaran Singh, Ramjit Singh and Harakh Singh. Harakh Singh and Samrath Singh are said to have died in a state of joint-ness with his other brothers. According to the plaintiffs, Ramsaran Singh and Ramjit had separated before the survey and had come in possession of their separate lands. After the death of Ramjit Singh, his properties were recorded in the name of his widow, Rajwanti Kuer. Plaintiffs are in the branch of Ramsaran Singh. Rajwanti Kuer had executed a rehan in respect of the lands in dispute by a registered deed dated the 20th Asarh, 1305 Fasli, corresponding to 16th June 1898. According to the plaintiffs, the defendants are in possession as the mortgagees. The plaintiffs had no earlier knowledge of this usufructuary mortgage and when they came to know of it, they tendered the amount to the mortgagees, which was refused. Hence this suit had to be instituted. The only contesting defendant was defendant No. 1 and his case was as follows: It was contended that the genealogy given by the plaintiffs was not correct. It was stated that Ramjit was not the son of Narkoo Singh, but he was son of one Dhajoo Rai. That is to say, according to the contesting defendant, the plaintiffs were not connected with the family of the mortgagor. Then it was contended that the usufructuary mortgage in question was redeemed before the survey and settlement operations and thereafter, Khata No. 351. within which the disputed plot No. 1984 falls, was sold in a rent sale and one Naujadik Singh had purchased the disputed land. Then it was contended that the usufructuary mortgage in question was redeemed before the survey and settlement operations and thereafter, Khata No. 351. within which the disputed plot No. 1984 falls, was sold in a rent sale and one Naujadik Singh had purchased the disputed land. The father of defendant No. 1 is said to have purchased the disputed land from this Naujadik Singh orally for Rs. 80. Then, there was a partition in the defendants family and by virtue of this the raiyati land fell to the share of this defendant, who was in possession of it as a raiyat. 3. It is not necessary to mention the conclusions on merit arrived at by the trial Court for the reasons which will appear presently, and it is enough to state, at this stage, that the suit was dismissed by the trial Court. Thereafter, the plaintiffs carried an appeal in the court of appeal below, which was numbered as Title Appeal No. 194 of 1960. This appeal was filed on the 15th July, 1960, and it appeared thereafter that Mahadeo Singh, defendant No. 14. had died on the 8th May, 1960, long before the trial Court had dismissed the suit. The plaintiffs-appellants in the court below filed an application in that court for expunging the name of Mahadeo Singh, stating that the heirs mentioned in their application were already on the record. A reply was given on behalf of the contesting defendant, stating that some heirs had not been brought on the record. Thereupon, the plaintiffs applied for setting aside the abatement and for substitution. These prayers of the plaintiffs were objected to in the court of appeal below and an order on this matter was passed on "the 22nd December, 1961. It was held by the court of appeal below that the appeal had not abated by reason of the death of Mahadeo and the appeal should proceed to be heard on merits. Thereafter, the appeal has been heard on merits and allowed and the plaintiffs suit has been decreed to the extent mentioned above. It is not necessary to mention what had happened in some intermediate stage when an order of remand had been made by the court of appeal below, which order had been set aside by this Court in a civil revision. It is not necessary to mention what had happened in some intermediate stage when an order of remand had been made by the court of appeal below, which order had been set aside by this Court in a civil revision. It is enough to state at this stage that by the judgment and decree under appeal, the plaintiffs suit for redemption has succeeded, as mentioned above. 4. Having heard the learned counsel for the parties, it appears to me that the decrees of the two courts below must be set aside on the preliminary ground that one of the defendants, namely, Mahadeo Singh, defendant No. 14, had died during the pendency of the suit in the trial Court and the suit had proceeded to judgment and decree in his absence. Having considered the order of the court of appeal below dated the 22nd December, 1961, it appears to me that the order passed was erroneous, based as it was on the ground that admittedly Mahadeo Singh did not claim any interest in the disputed property. It is clear that this aspect of the matter was wrongly considered and there was no such admission to the effect that Mahadeo had no interest as a mortgagee. This is now clear from the fact that by the judgment which is under consideration in this appeal, it has been ordered that on the plaintiffs depositing Rs. 235, the defendants-respondents shall file the rehan deed in court and give up possession of the land to the plaintiffs Apparently, what was understood by the court of appeal below is admission was this. 235, the defendants-respondents shall file the rehan deed in court and give up possession of the land to the plaintiffs Apparently, what was understood by the court of appeal below is admission was this. The plaintiffs had claimed redemption as heirs of Ramsaran Singh and the case of the contesting defendant was that after redemption, the disputed property had been sold in auction to Naujadik, who had re-sold it to the father of defendant No 1 According to the case of the contesting defendant, indicated earlier there had been a partition in the family of the defendants by virtue of which defendant No 1 had got this property and was in occupation as a raiyat This case of the contesting defendant which was also made out in evidence cannot be interpreted to mean that according to the contesting defendant admittedly Mahadeo Singh had no interest in the usufructuary mortgage as a mortgagee This is clear from the deposition of the witnesses to which reference has been made in this Court by the learned counsel for the parties MY attention was drawn to the evidence given by D Ws 5 and 7. according to whom. Gurucharan Singh was the Kashtkar and not Mahadeo Singh Gurucharan Singh (D W 7) has himself deposed that he was in possession as a Kashtkar and the land had fallen in his share by partition. Whether this case is to be accepted or not does not arise at the present moment According to the plaintiffs Mahadeo Singh was interested as a mortgagee and according to the contesting defendant the mortgage itself had come to an end Therefore on the allegations of the parties. Mahadeo Singh or his heirs and legal representatives were necessary to be on the record when the trial Court had passed its judgment on the 17th June, 1960. It is no doubt true that no question of abatement of the appeal as against the heirs of Mahadeo Singh had arisen in the court of appeal below, by the death of Mahadeo Singh during the pendency of the suit, but the competency of the appeal in the court of appeal below was at jeopardy, if the presence of Mahadeo Singh or his heirs and legal representatives was necessary in a suit for redemption. Therefore, there is no other alternative but to set aside the decree of the court of appeal below which reversed the decree of the trial Court and decreed the suit for redemption in the absence of some of Mahadeo Singhs heirs and legal representatives. The trial Court decree must also be set aside, as Mahadeo Singh had died long before the judgment was pronounced. The case will, therefore, have to be remitted to the trial Court for re-hearing. The trial Court will have to decide the question whether the case can proceed in the absence of Mahadeo Singh or not. If any application is made for substituting the heirs and legal representatives of Mahadeo Singh, who are not on the record, then that will have to be considered on its merit by the trial Court. The case is, therefore, remanded to the trial Court for the reasons given above. That court should now decide the suit in accordance with law. 5. The appeal is, therefore, allowed; but, under the circumstances, the parties should bear their costs throughout. The cross-objection filed by the plaintiffs has become infructuous, inasmuch as the decrees of the courts below have been set aside and the suit remanded to the trial Court for decision The cross-objection is. therefore dismissed without costs.