JUDGMENT-This Civil Revision Application raises an interesting point of law as to whether an appeal in a suit for partition of joint Hindu family property abates by reason of the death of one of the appellants, pending the appeal. The genealogical tree of the family is to be found in the order of the learned Assistant Judge under revision, and the position as it emerges from it is that the three plaintiffs who are the sons of Rama would, between them, be entitled to a half share and the first three defendants who are the sons of Gopal would, between themselves, be entitled to the remaining halfshare in the joint family property. It may be mentioned that defendants Nos. 4 to 17 were joined as formal parties, as being co sharers in some of the suit properties. The three plaintiffs filed this suit as a suit for partition of the properties of the joint Hindu family claiming that, on such partition, they were entitled to a half share therein. The trial Court dismissed the suit on April 20, 1967, holding that there had already been a partition between the plaintiffs and defendants Nos. 1, 2 and 3 in the year 1947. The plaintiffs filed an appeal from that decision, being Civil Appeal No. 201 of 1967, in the District Court at Kolhapur on June 4, 1967. It appears that within a few days thereafter, i.e. on June 18, 1967 the second plaintiff Dinkar died and his legal representatives were not brought on the record of the appeal. After certain infructuous proceedings to withdraw the appeal and the suit with liberty to file a fresh suit to which it is unnecessary to refer for the purpose of the present revision application, the present petitioners (defendants Nos. 1, 2 and 3) filed an application on September 17, 1971 in the said appeal praying that, in view of the fact that legal representatives of the said Dinkar had not been brought on the record in time, the whole appeal had abated, and that the issue of abatement of the whole appeal should be tried as a preliminary issue therein. The Assistant Judge, Kolhapur by his order dated September 20, 1971 held that the appeal had not abated in its entirety or even partially as, in his opinion, plaintiffs Nos. The Assistant Judge, Kolhapur by his order dated September 20, 1971 held that the appeal had not abated in its entirety or even partially as, in his opinion, plaintiffs Nos. 1 and 3 in whom the right to sue survived were competent to represent, the interest of the said Dinkar and to prosecute the appeal. It is from that order of the learned Assistant Judge that defendant Nos. 1, 2 and 3 have applied to this Court in Revision, 2. In the leading case of State of Punjab V. Nothu Ram1 the Supreme Court has laid down (para. 6) three tests for the purpose of determining the question whether an appeal between the appellants and the respondents, other than the deceased respondent, could be said to be properly constituted or to have all necessary parties before the Court. Those tests were, (a) whether the success of the appeal might lead to conflicting decisions; (b) whether the appellant could not have brought an action for the necessary relief against the surviving respondents alone: and (c) whether the decree against the surviving respondents would be ineffective and incapable of execution in the event of the appeal succeeding. In two later decisions in the cases of Sri Chand v. Jagdish Pershad2 and R. P. Gupta V. Murli Prasad3 it has been clarified that the tests laid down in Nathu Rams case cited above are not cumulative tests, and if any Lone of them is satisfied, the Court may, having regard to all the circumstances, hold that the appeal had abated in its entirety. 3. To a suit for partition of the properties of a joint Hindu family, it is not necessary to make all members of each branch of the joint family parties, but it is sufficient if the heads of all branches are impleaded in the suit (vide Mullas Hindu Law, 13th Edn., p. 386). In the present suit, the deceased Dinkar was, therefore, not a necessary party and Shankar as the head of Ramas branch could have filed this suit as a partition suit. In this connection, it is important to bear in mind that in the suit, as framed, the plaintiffs have not claimed partition, inter se, but have only claimed partition of the half share of their branch in the joint family property. In this connection, it is important to bear in mind that in the suit, as framed, the plaintiffs have not claimed partition, inter se, but have only claimed partition of the half share of their branch in the joint family property. Bearing in mind the nature of this suit, it would follow that the appeal filed in the District Court in the present case can be continued by plaintiffs Nos. 1 and 3, who are appellants Nos. 1 and 3 in that appeal, and they would effectively represent Ramas branch in that appeal. It could not be said that plaintiffs Nos. 1 and 3 could not have brought this suit as a suit for partition of the joint family properties, nor could it be said that the deceased Dinkar would be a necessary party to such a suit, that being the second of the three tests laid down by the Supreme Court in Nathu Rams case. The success of the appeal cannot lead to any conflicting decisions, or to a decree which would be ineffective or incapable of execution, those being the remaining two tests laid down in that case. 4. I am fortified in this view by an old decision of a Division Bench of this Court in the case of Chintaman v. Gangabai4 in which the same conclusion was arrived at on the basis of section 544 of the Code of Civil Procedure, 1882, which corresponded to Order XLI rule 4 of the Present Code of Civil Procedure, 1908. Order XLI rule 4 provides that where there are more plaintiffs or defendants than one, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, anyone of the plaintiffs or defendants can appeal from the whole decree and. thereupon, the appellate Court can reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. The facts in Chintamans case were similar to the facts of the present case. In that case, the suit was a suit for partition in which the trial Court had passed a decree in favour of the plaintiff and two of the defendants who had denied the plaintiffs right and claimed the property as their own, filed a joint appeal. Pending the appeal, one of them died and her representatives were not brought on the record. Pending the appeal, one of them died and her representatives were not brought on the record. The surviving appellant, however, proceeded with the appeal and the lower appellate Court reversed the decree passed by the trial Court and dismissed the plaintiffs suit. The plaintiffs filed a second appeal to the High Court and contended that the lower appellate Court ought not to have heard the appeal inasmuch as it had abated, or that at all events, the Court had no power to reverse the lower Courts decree so far as it related to the deceased appellant. The High Court held that, since the two defendants had appealed on grounds common to both of them the lower Court had the power to hear the appeal and to deal with the whole suit under the provisions of section 544 of the Civil Procedure Code, 1882. The view taken by the Division Bench in Chintamans case is binding upon me and I respectfully agree with the same. Applying the law as laid down in the said case to the present case, it must be held that, even if the appeal bas abated as far as the deceased Dinkar was concerned, the lower appellate Court had the right under Order XLI rule 4 of the Code of Civil Procedure to reverse or vary the decree in favour of all the appellants, if it was so minded. The order sought to be revised can, therefore, be sustained on the basis of Order XLI rule 4 also. 5. In the result, this Revision Petition fails and must be dismissed, and the Rule discharged, with costs. Rule discharged.