Shri Kamini Kumar Rudra Paul and Shri Krishna Mohan Rudra Paul, who were defendants Nos. 4 and 3 in Title Suit No. 25 of 1955 on the file of the Mun­siff's Court in Kailashahar filed Second Appeal No. 6 of 1964 against the judgment and dc.ree of the Additional District Judge, Tripura in Title Appeal No. 18 of 1962 (Title Appeal No 17 of 1964) confirming the judgment and decree of the Munsiff and directing eviction of the appellants from the plaint lands. (2) The first appellant Shri Kamini Kumar Rudra Paul died on 12-11-1964 dur­ing the pendency of the Second Appeal. The second appellant is one of his sons. He and the other heirs filed C. M. P. 56 of 1967 under Order 22, rule 9 (2) C. P. C. on 2-4-1965 to set aside the abatement of the ap­peal and to add the petitioners mentioned therein as legal representatives of the de­ceased first appellant. The respondent fil­ed C. M. P. 55 of 1967 opposing the prayer of the petitioners. (3) The petitioners (who are sought to be impleaded as legal representatives of the deceased first appellant) allege that the second appellant was in charge of the litiga­tion, that after he performed the "Sradh" Ceremonies of his father, he fell ill, that he forgot about the case, that he also suffered from fever and dysentery, that therefore, the delay of about 11/2 months in filing the petition C. M. P. 56 of 1967 should be con­doned, that the abatement of the appeal should be set aside and that the petitioners should be added as he legal representatives of the deceased first appellant (4) As pointed out by the learned counsel for the respondent, the deceased first appellant left as many as 10 legal re­presentatives, out of whom 4 are major sons, 2 are major daughters, 1 widow and 3 minor children. The second appellant Shri Krishna Mohan Radra Paul is said to be the second son of the deceased. The conten­tion of the respondent's counsel is that the obsequies of the deceased were performed by the eldest son. The second appellant Shri Krishna Mohan Radra Paul is said to be the second son of the deceased. The conten­tion of the respondent's counsel is that the obsequies of the deceased were performed by the eldest son. who is the first petitioner herein, that the other major sons did not have any interest in the litigation as there are concurrent findings of facts of two Courts, that they were guilty of careless ness, negligence and want of due diligence, that there are no grounds to set aside the order of abatement, by virtue of which the respondent obtained a valuable right and that the order of abatement cannot be set aside to his prejudice. The learned counsel for the petitioners, however, contended that according to Davabhaga law all the child­ren of the deceased were to perform the ob­sequies, that it is also customary for some people not to leave the house for one month and that, therefore the petitioners could not inform their counsel about the death of the first appellant and file the petition in tin it to add the legal representatives. But. even if his contention regarding the custom if the people governed by Dayabhaga law is correct, still there was no justification for the petitioners to wait for 41/2 months. The statutory period of limitation of 90 days did not expire when they were free to move about after one month from the date of the death of the 1st appellant. But they filed the petition after the expiry of about 1| months from the date of the abatement of the appeal. It is. therefore, evident that the petitioners were grossly negligent, and careless and did not care for their appeal at all. In such a case the order of abatement cannot be set aside Vide also Firm Dittu Ram Eyedan v. Om Press Co. Ltd., Fazilka. AIR 1960 Puni 335 (FB). (5) The learned Counsel for the peti­tioners, however, urged that the second ap­pellant, one of the sons and legal represen­tatives of the deceased, was already on re­cord, that it was sufficient if a note was simply made bringing him on record as one of the legal representatives of the deceased and that though the other legal representatives might be subsequently brought on re­cord after the expiry of the period of limi­tation, the appeal would not abate. He re­lied on three rulings, which are all distin­guishable from the facts of the present case. In Sadhu Saran Pandey v. Nand Kumar Singh. AIR 1926 Pat 276 one of the heirs was brought on record in time. It was held that though the other heirs were Brought on record after the expiry of the period of limitation, the appeal would not abate under O. 22 R. 4 C.P C. In the present case none of the legal representatives was brought on record in time and therefore this ruling does not apply. In Dawloo Ma v Karnam Ghowdappa, AIR 1930 Mad 579 it was held that in a case where the legal representa­tives were already on record a mere note may be made to that effect and that there need not be a formal application, It was further held that in such a case the fact that some of the legal representatives are brought on record as such and others not, provided the estate of the deceased is pro­perly represented and there is no prejudice to the case is not enough to set aside the order or decree in the case That was a case relating to the parties governed by the Mitakshara law and the estate of the deceased was considered to have been properly re­presented by some of the legal representa­tives who were all already on record in another capacity In the present case, the second appellant was alleged to have pur­chased a portion of the suit land. So, he was added as a party to represent his own interest in the land. As the parties are gov­erned by Dayabhaga law, the sons of the deceased take his property as tenants in common and there is no right of survivor­ship as amongst them. Vide Article 31 at page 99 of Mulla's Hindu Law 1959 edition. The second appellant cannot be stated to re­present the interests of his co-tenants. As the parties are gov­erned by Dayabhaga law, the sons of the deceased take his property as tenants in common and there is no right of survivor­ship as amongst them. Vide Article 31 at page 99 of Mulla's Hindu Law 1959 edition. The second appellant cannot be stated to re­present the interests of his co-tenants. In Hakim Ali v. Shiv Narain, AIR 1933 Lah 765 it was held that where a legal represen­tative of the deceased person is already on record though in a different capacity, no ap­plication is necessary by fiction of law to avoid abatement But, the question whe­ther all the legal representatives of a de­ceased person must be brought on record or whether the suit must be held not to abate so long as one of the legal represen­tatives has been brought on record was left undecided. (6) As against the above rulings the learned counsel for the respondent relied on the following decisions to show that in the absence of representation of the whole interest of the deceased the appeal abated. In Chuni Lai Tulsiram v. Amin Chand AIR 1933 Lah 356 it was held by a Division Bench that the expression "legal represen­tatives" means and includes one person as well as several persons according as they represent the whole interest of the deceased person, that where one person though already on record does net represent the whole interest of the deceased and it is necessary to bring all the persons represent­ing the interest of the deceased on the re­cord, then the appeal abates as against the deceased person. In Sualal v. Bhanwarlal, AIR 1954 Ajmer 54 (2) a suit by a R and B was filed for recovery of possession of cer­tain property and mesne profits. There was no indication in the plaint that the plain­tiffs filed the suit as Kartas or Managers of a joint family R died pending an appeal by the defendant. It was held that the suit was filed by R and B in their individual capacity, that, therefore, the heirs of R should have been brought on record and that the appeal abated as a whole. In Harihar Pati v Sisir Kumar Bose, AIR 1959 Orissa 41 the plaintiffs filed a suit against the defendants for recovery of possession of certain properties Though their shares were mentioned in the plaint, in fact their shares inter se were un-divvied. In Harihar Pati v Sisir Kumar Bose, AIR 1959 Orissa 41 the plaintiffs filed a suit against the defendants for recovery of possession of certain properties Though their shares were mentioned in the plaint, in fact their shares inter se were un-divvied. One of them died during the pendency of the appeal. His legal representatives were not brought on record. It was held that the appeal abated as a whole. In Jagar v. Mst. Natho, AIR 1960 Punj 207 it was held that the test whe­ther a particular appeal abates as a whole on account of the death of one of the res­pondents is to see whether it can or cannot proceed in the absence of the legal repre­sentatives of the deceased and that this de­pends upon the nature of each case. The test frequently applied is, whether, if his appeal against the existing respondents is allowed, then would it give rise to two con­tradictory decrees in the same litigation and the same subject-matter It was also held that the Courts normally do not make two inconsistent decrees about the same right and that in order to avoid conflicting decrees, it is in the interest of justice to favour abatement of such an appeal as a whole (7) In the present case according to the respondent the first appellant was divided from the deceased second appellant. Both of them claimed the suit land. The decree passed by the lower Courts is indivisible. So, for this reason also the appeal abated as a whole. (8) Thus, both on facts as well as on a question of law there are no grounds to set aside the abatement. On the ground that the second appellant, one of the legal represen­tatives has already been brought on record, it cannot be said that the appeal did not abate. (9) In the result, C.M.P. 56 of 1967 is dismissed with costs and C.M.P. 55 of 1967 is allowed. No costs. Order accordingly.