Judgment :- K.M. Natarajan, J. 1. A.S. No. 8 of 1983 is filed by the plaintiffs while A.S. No. 893 of 1985 is filed by the eighth defendant in O.S. No. 151 of 1980 sub court, Nagercoil, challenging the dismissal of the said suit holding that the plaintiffs are not the legal heirs of late Ganapathia Pillai and are not entitled to any relief. For the purpose of convenience, the rank of the parties before the trial court is adopted herein. 2. The material facts which are relevant for the disposal of these appeals are as follows: The plaintiffs (appellants in A.S. No. 8 of 1983), filed the suit for partition and separate possession alleging that plaintiffs 2 to 5 are the children of late Ganapathia Pillai through his third wife, the first plaintiff herein. Defendants 2 and 3 are the sons of the said Ganapathia Pillai, through his first wife, the first defendant and that defendants 4 to 8 are the children of Gnanapathia Pillai through his second wife Ponnammal. Ganapathia Pillai was having properties at Nagercoil, Tirunelveli and Shenkottah and he was also running bus transport and allied business under the name and style of Sri Ganapathia Motor Service. It is the further case of the plaintiffs that all the properties mentioned in A and B Schedules attached to the plaint are his separate and self-acquired properties. The second wife of Ganapathia Pillai, namely, Ponnammal died in or about 1950 and a few months thereafter Ganapathia Pillai married the first plaintiff as his third wife at Nagercoil when it was part of Travan-core State where was no law prohibiting marriage, a third time. Ganapathia Pillai died at Nagercoil intestate on 5-10-1972 leaving behind the plaintiffs also as his legal heirs, and as per the Hindu Succession Act the first plaintiff and the first defendant together are entitled to 1/12th share whereas the other plaintiffs and other defendants are each entitled to 1/12th share in the suit properties. It is also stated that defendants 4, 5 and 7 are running nine lorries of the said business for the benefit of the members of the family and they are claiming the same as their own. It is also stated that defendants 4, 5 and 7 are running nine lorries of the said business for the benefit of the members of the family and they are claiming the same as their own. It is further stated that the second defendant who has been managing the suit properties is bound to render account from 5-10-1972 to the plaintiffs while defent dants 4, 5 and 7 are liable to render accounin respect of the income from the lorries. 3. The said suit was resisted by the first defendant and in her written statement it was inter alia contended that there was no marriage between the first plaintiff and Ganapathia Pillai and that the first plaintiff was only his concubine. The first defendant was the only wedded wife of Ganapathia Pillai, at the time of the alleged marriage of the first plaintiff and Ganapathia Pillai 1950. Even if there was any marriage between Ganapathia Pillai and the first plaintiff, it was illegal and void in view of the Hindu Bigamy Act, 1949. Defendants 1 to 3 atone are the legal representatives of late Ganapathia Pillai. Ganapathia Pillai never married Ponnammal and as such defendants 4 to 8 also are not the legal heirs of the deceased Ganapathia Pillai and their claim for partition is not sustainable in law. 4. Defendants 2 and 3 filed a separate written statement wherein also it was contended that neither Ponnammal nor the first plaintiff is the legally wedded wife of Ganapathia Pillai and therefore plaintiffs 2 to 5 and defendants 4 to 8 are not the legitimate children of Ganapathia Pillai. The first defendant is the legally wedded wife and defendants 2 and 3 alone are the legitimate sons of Ganapathia Pillai They further contended that the partnership firms formed by Ganapathia Pillai were all real transactions and they were fully acted upon and the present plaint ignoring all the partnership deeds and contrary to their terms is not maintainable. After setting out the re-constitution of the firms, it was contended that the second defendant is not liable to render any account. It was also contended that the right of the plaintiffs, if any, is barred by limitation. With regard to item 22, it was contended that the wife of the third defendant was the owner and consequently prayed for dismissal of the suit. 5. It was also contended that the right of the plaintiffs, if any, is barred by limitation. With regard to item 22, it was contended that the wife of the third defendant was the owner and consequently prayed for dismissal of the suit. 5. Defendants 3, 5 and 7 filed a written statement and the 4th (D4) and 8th defendant adopted the same. They contended that Ganapathia Pillai was the owner of the entire business. All the members of his family are the beneficiaries under the partnerships formed by Ganapathia Pillai. After the death of Ganapathia Pillai the route permits were got transferred in the name of the second defendant admitting the claims of all the heirs. It was further stated that on 20-8-1973 a notice was issued to defendants 1 to 4 and 6 and there was a reply to that notice, on 9-9-1973 wherein it is admitted that the partnership is only an enabling device and that all the legal heirs of Ganapathia Pillai would be entitled to full rights over all the assets including the assets of the partnership. On 16-8-1979 defendants 4, 5 and 7 got three lorries each, a workshop at Nagercoil and a house in Shenkottah and from them release deeds had been taken. But, all the assets were not disclosed and those release deeds will not in any way affect the rights of defendants 4, 5 and 7 to get proper partition. Defendants 4, 5 and 7 are entitled to 4/12th share and the suit has to be decteed in terms of the written statement. 6. The sixth defendant, one of the children of late Ponnammal filed a separate written statement, wherein it is contended that the partnership was reconstituted by 7-10-1972, that he was one of the partners and that the partners alone were entitled to deal with the partnership business. Defendants 4, 5 and 7 released their rights in the assets of Ganapathia Pillai on 16-8-1979 in full settlement of their claims. He would also state that he absented himself in the business on account of his personal inconvenience and he has withdrawn from the firm after receiving a sum of Rs. 65,000 and he is not interested either in the assets of the firm or in the motor service or in the assets of Gana pathia Pillai. He would contend that the suit is not maintainable. 7. 65,000 and he is not interested either in the assets of the firm or in the motor service or in the assets of Gana pathia Pillai. He would contend that the suit is not maintainable. 7. Defendants 9 and 10 adopt the written statement of defendants 2 and 3. 8. Defendants 11 and 12 contend that item 10 of the A Schedule properties was purchased by the second defendant on behalf of the firm Ganapathi Motor Service, and for the benefit of the family the second defendant sold the same to them on 16-12-1980 for proper consideration and that they are bona fide purchasers for value. On the pleadings, the trial court framed as many as 10 issues and 3 additional issues. On the side of the plaintiffs, the first plaintiff was examined as P.W. 1 and 4 other witnesses were examined and Ex. A1 to A34 were marked. On the side of the defendants, defendants 4, 7, 8, S and 2 were examined as D Ws.1 to 5 and Exs B1 to B99 were marked. The trial court for the reasons assigned in the judgment as already stated dismissed the suit holding that the plaintiffs are not the legal heirs of Thna Pathia Pillai and similarly defendants 4 to 3 are also not the legal heirs of Ganapathia Pillai and consequently dismissed the suit. Aggrieved by the same, these two appeals are filed. 9. Defendants 1 to 3 filed the cross-objections to the effect that the lower courtshould have definitely found on the evidencethat there is no marriage between the firstplaintiff and Ganapathia Pillai and her storyof marriage was a myth. 10. The learned counsel for the respondents 1 to 3 and 9 to 12 in A.S.No 8 of 1983and respondents 6 to 8 respondents 13 to 16in A.S No. 893 of 1985 filed a memo to theeffect that the subject matter of the appeals isa suit for partition and separate possession, that one of the points that was contested wasthe marriage between the first plaintiff and Ganapathia Pillai and that the suit was dismissed after hot contest. In the said suit, one G. Nagarajan was the fourth defendant. He claimed to be the son of Ganapathia Pillai through Ponnammal who is alleged tobe the second wife of Ganapathia Pillai. Thelegitimacy of Nagarajan is also disputed before the lower court. In the said suit, one G. Nagarajan was the fourth defendant. He claimed to be the son of Ganapathia Pillai through Ponnammal who is alleged tobe the second wife of Ganapathia Pillai. Thelegitimacy of Nagarajan is also disputed before the lower court. In A.S. No. 893 of 1985, Nagarajan was impleaded as the ninthrespondent while in A.S. No. 8 of 1983 he was impleaded as the 4th respondent. The said Nagarajan died on 24th October, 1987 and the death extract issued bythe Registrar of Births and Deaths, Nagercoil Municipality is also produced. It is alsostated that none of the appellants in the twoappeals have chosen to bring on record thelegal representatives of the deceased Nagarajan who has left behind his wife Chellammal, daughter Ponnammal and two sons byname Ganapathy and Sankarasadasivam ashis legal representatives. It was submittedthat since this is a suit for partition and separate possession and since the legal representatives of one of the deceased party were notbrought on record, both the appeals in entirety have abated. It is further stated thatit is the settled law that in a suit for partition if a legal representative is not added onthe death of a party, the entire appeals getsabated and that the appeal has got to be dismissed having become abated. Thus, the learned counsel for respondents 1 to 3 and 9 to 12 in A.S. No. 8 of 1983 and for respondents 6 to 8 and 13 to 16 in A.S. No. 893 of 1985 has taken this point as a preliminary objection as to the maintainability of the appeals. The appellants did not file any reply. The learned counsel for the appellants would submit that he would advance arguments on this point. Hence, the preliminary objection raised by the respondents numbered above is taken up for hearing. 11. According to the learned senior counsel for the contesting respondents, Mr. The appellants did not file any reply. The learned counsel for the appellants would submit that he would advance arguments on this point. Hence, the preliminary objection raised by the respondents numbered above is taken up for hearing. 11. According to the learned senior counsel for the contesting respondents, Mr. G. Subramaniam, in paras 1 and 4 of the plaint filed by the plaintiffs (appellants in A.S No. 8 of 1983 and respondents 1 to 5 in A.S No 893 of 1985), it is their specific case that the first plaintiff and the first defendant are together entitled to 1/12th share while plaintiffs 2 to 5 and defendants 2 to 8 are each entitled to 1/12th share and that defendants 4 to 8 are the children of Ganapathia Pillai through his deceased second wife Pon-nammal while plaintiffs 2 to 5 are the children of Ganapathia Pillai through his third wife the first plaintiff and defendants 2 and 3 are the children of Ganapathia Pillai through his first wife, the first defendant. The plaintiffs have categorically stated that defendants 4, 5 and 7 are running nine lorries belonging to the family of late Ganapathia Pillai and as such they, namely, defendants 4, 5 and 7, should be directed to render account to the plaintiffs for the income of the lorries run by them from 510 1972 till they are put in possession of their share of the properties. The plaintiffs have also stated that with regard to the business of Ganapathia Pillai, some deeds of partnership were brought into existence and the last of such partnership deeds, within the knowledge of the plaintiffs, is one dated 14-3-1968 under which defendants 2 to 7 along with their father were partners while plaintiffs 2 to 5 were admitted to the benefits of the partnership. On the basis of the said pertnership deeds, an alternative relief was asked for to the effect that in case the court finds that the partnership deeds before the death of late Ganapathia Pillai should regulate the rights and obligations cf the parties, the plaintiffs may be given relief of partition on that footing as well and taking such accounts as are necessary to determine the shares of the plaintiffs Thus, it is clear from the recitals in the plaint that the plaintiffs besides asking for partition and separate possession of the suit properties, have also prayed for directing defendants 4, 5 and 7 to render account in respect of nine lorries to the plaintiffs from 5-10 1972 till they are put in separate possession of their share. In respect of the partnership firms, the plaintiffs prayed that they may be given the relief of partition as per partnership deeds and taking such accounts as necessary to determine the shares of the plaintiffs. As such it is seen from the prayer that the fourth respondent is a necessary party to the suit and he is also an accounting party as per last partnership deed dated 14-3-1968. Defendants 5 and 7 filed a written statement which was adopted by the fourth defendant by filing separate memo. In the written statement filed by defendants 5 and 7. they disputed the alleged release deeds taken in favour of defendants 2 and 3. They would contend that in the matter of partition, they are entitled to get their share taking into account such collection as well and that they are entitled to 4/12 share divided by metes and bounds in the very same suit and they have also paid courts fees for the sarae-The learned counsel submitted that defendants 4, 5, 7 and 8 put-forth common defence and they jointly claimed 4/12 share and paid court fee. The learned counsel also submitted that the fourth defendant was examined as D.W.1 in support of their defence and documents were marked to substantiate their contentions. He would also submit that in a suit for partition, every defendant is in the position of the plaintiff in relation to the relief of partition and therefore there was no distinction between the plaintiff and the defendant in a suit for partition. According to the learned counsel, since the fourth defendant died on 24-10-1987, the appeal was abated long ago. According to the learned counsel, since the fourth defendant died on 24-10-1987, the appeal was abated long ago. It was submitted that the appellants were fully aware of the death of the fourth defendant and inspite of the memo filed by the respondents, they did not choose to take any steps to implead the legal representatives of the deceased fourth defendant and the decree passed by the court below in so far as the fourth defendant is concerned has become final and the said decree is only a joint and indivisible one and as such the appeals abate as a whole. He would also submit that without impleading the legal representatives of the deceased fourth defendent, the appeals cannot be disposed of and no division can be effected in respect of the suit properties. The learned counsel also submitted tbat in a suit for partition in the absence of all the sharers and the members of the family, the suit for partition and rendition of accounts is not maintainable. Similary the appeals also are not maintainable and they are liable to be dismissed. In support of his contentions, he drew our attention to various decisions and we will deal with the same at the appropriate time in the course of discussion of the preliminary point raised in these appeals. 12. Per contra, the learned Senior Counsel Mr. M.R.. Narayanaswami, for the appellant in A.S. No. 893 of 1985, who was the eighth defendant in the suit, submitted that the ratio in the majority decisions relied on by the learned senior counsel for the respondents, Mr. G. Subramaniam, is not disputed, but the question is whether the principle in those decisions would apply to the facts of the case. He would submit that the contest in the case is between defendants 1 to 3 on one hand and plaintiffs 1 to 5 and defendants 4 to 8 on the other. The plaintiffs and defendants 4 to 8 have a common case against defendants 1 to 3 and vice versa and the suit filed by the plaintiffs was dismissed. Issue 8 was framed to the effect, what is the share of the plaintiffs and defendants 4 to 8 and that issue was found against them. The learned counsel would submit that under Ex. Issue 8 was framed to the effect, what is the share of the plaintiffs and defendants 4 to 8 and that issue was found against them. The learned counsel would submit that under Ex. BI4 the fourth defendant gave a notice of retirement to defendants 2, 3 and 6 and in pursuance of the same, be executed an agreement, relinquishing his share. Even though the suit was dismissed, defendants 4 to 7 did not file an appeal. Further, the suit was dismissed with costs of defendants 1, 2, 3, 6, 9, 10, 11 and 12 and not with costs of the fourth defendant. According to the learned counsel since the fourth defendant executed a release deed, he has no independent right in the appeals filed by the eighth defendant and also by the plaintiffs to proceed against other defendants and as such, there is no impediment in proceeding with the appeals with the available respondents, without impleading the legal representatives of the deceased fourth defendant. According to the learned counsel, there is no joint decree and no controversy between the fourth defendant, and the plaintiffs or as between the eighth defendant and the fourth defendant. The learned senior counsel Mr. T.S. Subramaniam for the appellants in A.S. No. 8 of 1983 submitted that each coparcener gets a decree for partition and hence there is no joint and indivisible decree in case of parti-tion as contended by Mr. G. Subramaniam, Senior Counsel for respondents 6 to 8 and 13 to 16 in A.S. No. 893 of 1985. He would also submit that in view of the release deed Ex. B15 executed by the fourth defendant and since he has not filed any appeal againt the judgment of the lower court, he is not a necessary party and as such, on account of the failure to implead the legal-representatives of the fourth defendant, the entire appeal cannot be abated. 13. The question now arises for consideration is whether by the failure to implead the legal representatives of the deceased fourth defendant, the appeals abate as a whole or not, in view of O. 22 R. 4(3) read with R. 11, Code of Civil Procedure. 14. Certain facts are not in dispute. It is worth while to set out certain undisputed facts for proper appreciation of the respective contentions. 14. Certain facts are not in dispute. It is worth while to set out certain undisputed facts for proper appreciation of the respective contentions. The suit in O.S. No. 151 of 1980 was failed by the appellants in A.S. No. 8 of 1983 for partition and separate possession of their 9/24 share and for directing defendants 2, 4 5 and 7 to renders accounts from 5-10-1972 till the date of delivery of possession and in the alternative to pass the decree for the relief of partition on the basis of the partnership deeds as well as taking of such accounts as are necessary to determine the shares of the plaintiffs in the plaint, the case of the plaintiffs is that the deceased Ganapathia Pillai had got three wives and that the first plaintiff is his third wife and through her plaintiffs 2 to 5 were born. Defendants 2 abd 3 are the sons of Ganapathia Pillai through his first wife, the first defendant herein, and defendants 4 to 8 are the children of the said Ganapathia Pillai through his second wife Ponnammal and that the plaintiffs are entitled to 9/24th share while defendants 1 to S are each entitled to 1/12th share. It is also alleged that defendants 2 to 7 along with their father were partners while the plaintiffs 2 to 3 were admitted to the benefits of the partnership and that defendants 4, S and 7 have to account for the income from the lorries run by them from 5-10-1972 till they deliver separate possession. It is only defendants 1 to 3 who dispute the marriages of the first plaintiff and Ponnammal with Ganapathia Pillai and the legitimacy of plaintiffs 2 to 5 and defendants 4 to 8, in their written statement, and submitted that they are not entitled to submit any account, while the case of the plaintiffs as well as defendants 4 to 8 is that they are also legal heirs and that they are entitled to equal shares. It is seen that a joint written statement was filed by defendants 5 and 7 which was adopted by defendants 4 and 8. Defendants 4, 5, 7 and 8 claimed 4/12th share and for effecting division of their shares, they paid separate court fee. It is seen that a joint written statement was filed by defendants 5 and 7 which was adopted by defendants 4 and 8. Defendants 4, 5, 7 and 8 claimed 4/12th share and for effecting division of their shares, they paid separate court fee. On the basis of the pleadings, the trial court framed as many as 10 issues and 3 additional issues, wherein issue No. 8 is relevant which deals with the entitlement of shares by plaintiffs and defendants 4 to 8. The lower court, on the basis of the evidence adduced in the suit, held under issue No. 8 that the plaintiffs and defendants 4 to 8 are not entitled to any share and answered the issue against them. It is Only against the said finding and conseqential dismissal of the suit, these two appeals are filed; It is not in dispute that the fourth defendant died on 24-10-1987 leaving behind his wife Chellammal, one daughter by name Ponnammal and two sons Ganapathy and Sankarasadasivam as his legal representatives and that the appellants have not taken any steps to set aside the abatement and to implead to legal representatives of the deceased fourth defendant. It is only in the circumstances we have to see whether the presence of the legal representatives of the deceased fourth defendant are necessary for determining the points involved in the appeal and deciding the issues. 15. It was vehemently contended by the learned counsel for the appellants that there was a finding by the trial court under issue 8 that the fourth defendant had retired from the partnership by virtue of Exs. B14 and B15 and in view of the said documents he has no subsisting interest in the partnership and as such he is not necessary party. It is to be noted that, as already stated, the plaintiffs has not whispered anything about the release deed. But, on the other hand, the plaintiffs averred that the fourth defendant along with his brothers defendants S, 6 and 7 and sister, the eighth defendant, are entitled to equal share along with the plaintiffs and defendants 1-3 and that the fourth defendant along with his brothers, defendants 5 and 7 are bound to render account for running the buses. It is only defendants 1 to 3 who raised the objection in the written statement that by virtue of Exs. It is only defendants 1 to 3 who raised the objection in the written statement that by virtue of Exs. B14 and B15, the fourth defendant had relinquished his right in the partnership. But, it is seen from the written statement filed by defendants 4, S 7 and 8 that they are disputing the truth and validity of the said release deed. As rightly contended by the learned counsel for the respondents, Mr. G. Subramaniam the appellants have challenged the said finding under issue No. 8, and that is the subject matter of the appeals and that it has to be found out in the appeals whether the said decision is correct or not. If the appellants give up the appeals with regard to that finding both the appeals have to be dismissed. Hence, it is not open to the appellants to rely on the same and contend that for deciding this issue, the fourth defendant is not a necessary party in view of Exs. B14 and B15. Hence, we do not find any merit in the said contention. 16. As regards the contention that the prayer in the memo filed by respondents 6 to 8 and 13 to 16 in A.S. No. 893 of 1985 was not properly stated, it is to be noted that the sum and substance of the memo is that by the failure of the appellants to implead the legal representatives of the deceased fourth defendant and set aside the abatement, the whole appeal is abated and that it cannot be proceeded with. The appellants have not repudiated the allegations in the memo as already stated by filing a reply and it is not open to them to contend that the prayer in the memo has not been properly couched and the said contention is without any substance and force. 17. In this connection, it is relevant to consider the decisions relied on by the learned counsel appearing for the contesting respondents who raised the preliminary objection. In Panchapakesan v. Peria Thambi Naicker A.I.R 1972 S.C. 1181, it was held : “In a suit for partition all the persons interested in the property should be impleaded as parties. 17. In this connection, it is relevant to consider the decisions relied on by the learned counsel appearing for the contesting respondents who raised the preliminary objection. In Panchapakesan v. Peria Thambi Naicker A.I.R 1972 S.C. 1181, it was held : “In a suit for partition all the persons interested in the property should be impleaded as parties. No doubt, O. 1, R. 9 of the Code, provides that no suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Notwithstanding this provision, the Court will be justified in dismissing the suit if the necessary parties are not impleaded.” It is to be noted that this decision was rendered prior to the Amendment Act 104 of 1976, and by virtue of the insertion of proviso to O. 1, R. 9 C P.C. and S. 99 C.P.C. “nothing in this rule or section shall apply to non-joinder of necessary party.” In A. Ramachandra Pillai v. Valliammal A.I.R. 1963 S.C. 553, a division bench of this Court, relying on the decision of the Supreme Court in Kanakarathnammal v. Loganatha A.I.R. 1963 S.C. 1901, and the above quoted decision in Panchapakesan v. Peria Thambi Naicker A.I.R 1972 S.C. 1181, held : “The decision in Kanagarathnammal v. Loganatha A.I.R. 1963 S.C. 1901, is authority for the position that in a suit for partition all the sharers are necessary parties and also for the position that the suit is liable to be dismissed for non-joinder of any one of the parties. In Panchapakesan and others v. Peria thambi Naicker and others A.I.R 1972 S.C. 1181, also Division Bench of this Court has taken a similar view. We are accordingly of the view that the finding of the learned subordinate Judge on issue No 10 holding that the suit is not bad for nonjoinder of Nagarathinatns heirs is unsound and liable to be set aside. Accordingly, we bold that the suit is liable to be dismissed for nonjoinder of the heirs of Nagarathinam.” In Chinna Nadar, etc. v. K Thiruviam, etc. Accordingly, we bold that the suit is liable to be dismissed for nonjoinder of the heirs of Nagarathinam.” In Chinna Nadar, etc. v. K Thiruviam, etc. A.I.R. 1966 S.C. 792 it was pointed out that in the Supreme Court in Bhagwan Swaroop and others v. Moolchand and others A.I.R. 1940 P.C. 215, S.A. Desai, J. who delivered the main judgment (A.N. Sen, J. delivering concurrent judgment) observed that the sua is for pattition and the position of the plaintiffs and defendants can be interchangeable, and each adopts the same position with the other parties. That was a case where an appeal was filed against the dismissal of the suit by the trial court against six defendants. The suit was one for declaration of title and for possession. During the pendency of the appeal, the first defendant/first respondent died. His legal representatives were not brought on record in time. Therefore the appeal abated. After a long lapse of time, the third appellant-third plaintiff filed three petitions, one for setting aside the abatement, another for condoning the delay in filing the petition for setting aside the abatement and the third one to bring the legal representatives of the first respondent-first defendant. All the three petitions were dismissed. Subsequently the third appellant-third plaintiff filed a petition under O. 1, R. 10(2), C.P.C. to implead the legal representatives as respondents 7 to 12 in the appeal. The said petition was also dismissed. On the same day (14-3-1985) the learned judge of this court disposed of the appeal stating that the appeal has abated. As against the same, the letters patent appeal was filed. The letters patent appeal was dismissed with costs. In that case, the decision in Bhagwan Swaroop and others v. Moolchand and others A.I.R. 1940 P.C. 215, was relied on to show that the court has power to order for adding the legal representatives as parties under O. 1. R. 10(2), C.P.C. for effective decision of the appeal. That decision was distinguished by the learned Judges, as the letters patent appeal relates to a suit for declaration of title and Dossession whereas the Supreme Court decision relates to a suit for partition. In Mani P. v. P. Viswanathan A.I.R. 1962 S.C. 89, a division bench of this court held that in a partition suit every defendant is in the position of a plaintiff and therefore transposition can be ordered. In Mani P. v. P. Viswanathan A.I.R. 1962 S.C. 89, a division bench of this court held that in a partition suit every defendant is in the position of a plaintiff and therefore transposition can be ordered. In Malobi v. Gaus Mohamad A.I.R. 1963 S.C. 553 it was held : “In a suit for partition all persons interested in the properties are necessary parties. The reason is that the share to which a person is entitled can be determined only in the presence of all the persons interested in the properties. Similarly no final and effective partition regarding allotment of properties is possible unless it is made in the presence of all the persons interested in the properties. Hence where after the filing of an anpeal in such a suit one of the appellants dies and no legal representatives of such person is brought on the record, the appeal abates in its entirety.” The decision in State of Punjab v. Nathu Ram A.I.R. 1966 S.C. 792, was relied on by both the learned counsel for the appellants and the respondents. The view in that case was affirmed in later decisions of the Supreme Court on this question. The facts leading to the said case are: The Punjab Government acquired on lease certain parcels of land belonging to Labhu Ram and Nathu Ram for different military purposes under the Defence of India Act, 1939. Labhu Ram and Nathu Ram refused to accept the compensation offered to them by the collector. The state government referred the matter to an arbitrator who after enquiry passed an order for payment of an amount higher than what was offered by the collector. The state government appealed against the award to the high court of Punjab. During the pendency of the appeal, Labhu Ram, one of the respondents died. The High Court holding that the appeal abated against Labhu Ram and that its effect was that the appeal against Nathu Ram also abated, dismissed the appeal, as well as the cross-objections. It was held as follows : “The only question is whether the appeal can proceed against them. The High Court holding that the appeal abated against Labhu Ram and that its effect was that the appeal against Nathu Ram also abated, dismissed the appeal, as well as the cross-objections. It was held as follows : “The only question is whether the appeal can proceed against them. The provisions of O. 1, R. 9 C.P.C. also show that if the court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent it has to proceed with the appeal and decide it. It is only when it is not possible for the court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it. The question whether a court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court. The test to determine this has been described in diverse forms. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal fa) when the success of the appeal may lead to the courts coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the courts passing a decree which had become final with respect to the same subject matter between the appellant and the deceased resp ondent; (b) when the appellant could not have brought the action for the necessary reliefs against those respondents alone who are still before the court, and (c) when the decree against the surviving respondents, if the appeal succeeds, will be ineffective, that is to say, it could not be successfully executed.” Ultimately, their Lordships dismissed the appeal holding that the claim of Labhu Ram and Nathu Ram was a joint claim based on the allegation that the land belonged to them jointly and the award and the joint decree are on this basis and the appellate court cannot decide on the basis of the separate shares In Rameshwar Prasad v. M/s. Shyam Beharilal Jagannath A.I.R. 1964 S.C. 234 it was held that if in respect of one appellant the appeal had abated and the decree in favour of the respondent had become final to that extent, it would be against the scheme of the Code of Civil Procedure to hear the appeal if the decree of the lower court proceeded on a ground common to all the plaintiffs or defendants. In Ramagya Prasad Gupta and other v. Murli Prasad A.I.R. 1962 S.C. 89 the three tests laid down by the Supreme Court in Nathu Rams case are reiterated and it was further held: “These three tests as pointed out by this court in Pandit Sri Chands case 2 , are not cumulative tests. Even if one of them is satisfied, the court may dismiss the appeal.” In Babu Sukhram Singh v. Ram Dular Singh and others A.I.R. 1963 S.C. 1901 it was held : “The question is whether the appeal has abated or not In the plaint a joint claim is made against all the defendants. The trial court dismissed the suit. The first appellate court decreed the suit in part against all the defendants. The High Court has dismissed the suit against all the defendants. The trial court dismissed the suit. The first appellate court decreed the suit in part against all the defendants. The High Court has dismissed the suit against all the defendants. In the Supreme Court relief is asked for against all the defendants. During the pendency of the appeal defendants Nos. 12, 15, 22 and 37 died. But their legal representatives were not brought on record within the time prescribed. Under these circumstances quite clearly the appeal has abated as a whole under O. 22, R. 4, of the Civil Procedure Code.” In Ratanchand v. Askar A.I.R. 1964 S.C. 234, a division bench after referring to all the above decisions of the Supreme Court held as follows: “On the abatement of an appeal against one respondent, the same cannot be heard against the others if the success of the appeal would lead to contradictory decisions with respect to the same subject matter or if the appellant could not have proceeded against the remaining respondents only or if the decree granted against the surviving respondents would be ineffective. These principles are founded on the assumption that the appellant has allowed the appeal to abate against one of the respondents by his o wn default. But where the appellant after diligent and bonafide enquiry genuinely believes that some persons alone are the heirs of the deceased respondent and brings them on record, a decree passed against such persons would bind the entire estate of the deceased persons Cases of fraud, collusion or other circumstances indicating absence of fair or real trial excepted or that the absent heirs had no special defences open to them. In Rameshwar Prasad and others v. M/s. Shyam Beharilal Jagannath A.I.R 1972 S.C. 1181 , it was held : “An appellate court has no power to proceed wi th the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O. 41, R. 4, of the Code of Civil Procedure, when the decree proceeded on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appealed from the decree and any of them died and the appeal abated so far as he was concerned under O. 22, R. 3”. At page 556, Their Lordships of the Supreme Court observed : “This Court said in State of Punjab v. Nathu Ram A.I.R. 1966 S.C. 792. At page 556, Their Lordships of the Supreme Court observed : “This Court said in State of Punjab v. Nathu Ram A.I.R. 1966 S.C. 792. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent had become final, but also, as a necessary corollary, that the appellate court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate court cannot determine anything between the appellant and the legal representative which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the court will do is one to which exception can or cannot be taken. No question of the provisions of R. 4 of O. 51 overriding the provisions of R9 of O22 arises. The two deal with different stages of the appeal and provide for different contingencies. R 4 of O. 51 applies to the stage when an appeal is filed and empowers one of the plaintiffs or defendants to file an appeal, against the entire decree in certain circumstances. He can take advantage of this provision, but he may not. Once an appeal has been filed by all the plaintiffs the provisions of O. 51, R. 4 became unavailable. O. 22 operates during the pendency of an appeal and not at its institution. If some party dies during the pendency of the appeal, his legal representatives have to be brought on the record within the period of limitation. If that is not done, the appeal by the deceased appellant abates and does not proceed any further. There is thus no inconsistency between th e provisions of R. 9 of O. 22 and those of R. 4 of O. 51, CPC. They operate at different stages and provide for different contingencies. If that is not done, the appeal by the deceased appellant abates and does not proceed any further. There is thus no inconsistency between th e provisions of R. 9 of O. 22 and those of R. 4 of O. 51, CPC. They operate at different stages and provide for different contingencies. There is nothing common in their provisions which make the provisions of one interfere in any way with those of the other.” In Pandit Sri Chand and others v. M/s. Jagdish Parshad Kishan Chand and others A.I.R. 1962 S.C. 89, was a case where the first respondent filed a suit against the second respondent for recovery of money and in pursuance of an order of the court directing the second respondent to furnish security for satisfaction of the decree that may he passed against him, the three appellants and two others stood sureties agreeing jointly and severally to satisfy the decree. After the suit was decreed, the first respondent applied for execution of the decree against the sureties. The sureties raised the pleas that the surety bond was not enforceable because it was not registered, and that the decree-holder had committed acts by which the remedy of the sureties against judgment debtor was impaired, but the pleas were negatived by the executing court and the High Court. After the three appellants preferred an appeal to the Supreme Court, one of them died. His legal representatives were not brought on record. The question arose whether the appeal in so far as the other two appellants is also abated. It was held : “Since the liability of the sureties was joint and several, if this court proceeds with the appeal of the other two sureties and holds that the high court was in error in rejecting their contentions, there would be two inconsistent orders one passed by the high court holding that the surety bond was enforceable, and the other of this court that it was not enforceable. Therefore, the appeal must be held to have abated in its entirety.” In Muthuswamy v. Venugopalan A.I.R. 1963 S.C. 553, it was held: “If a decree is joint against several defendants and if the decree has become final so far as one defendant is concerned on account of abatement on his death, the appeal by the other defendants should reasonably be held to be not maintainable because the success of the appeal would lead to the court coming to a decision which would be inconsistent with the decision between the deceased appellantand the respondent and that would lead to the court passing a decree which would be contrary to a decree which has already become final in respect of the same subject mat ter between the deceased appellant and the respondent.” It was further held : “Where a decree was a joint decree against two defendants with regard to the main reliefs, one relating to injunction and the other relating to damages, and the liability of the defendants was not apportioned, and pending appeal by both of them one of them died and the appeal had abated and the decree had become final in regard to that defendant and the plaintiff, the appeal even by the surviving defendant cannot be proceeded with.” In Venkatram Rao v. Narayana A.I.R. 1963 S.C. 1901, a Full Bench held : “Where some of the defendants-appellants died and no legal representatives were impleaded within the time permitted, the appeal abates in ‘respect of such appellants; and where the decree appealed from proceeded on a ground common to all the defendants, the appeal abates as a whole. It is well settled that an appeal will abate as a whole if the case is of such a nature that the appeal cannot proceed in the absence of the legal representatives of the deceased appellant.” It was also held: “To hold that O. 22, R. 3 does not apply to a case coming under O. 41, R. 4 would be tantamount to negativing those provisions and making them otiose .” It was also held : “There is nothing in O. 41, R. 4 which conflicts with the provisions of O. 22, R. 3.” In Md. Abjal v. Hafizannessu A.I.R. 1964 S.C. 234 it was held : “An appeal in a partition suit is incompetent unless all persons interested are made parties to the appeal, either as appellants or respondents. It may be, of course, that some of the parties to the appeal would not contest the appeal as their share may not be challenged. But this makes no difference.” Applying the ratio in the above decisions to the facts of this case, it is seen from the pleadings that the case of the plaintiffs as well as defendants 4 to 8 is that they are also the legal heirs of Ganapathia Pillai along with defendants 1 to 3, plaintiffs 2 to 5 being the children of his third wife (first plaintiff), defendants 2 and 3 being the children of the first defendant, who is his first wife and defendants 4 to 8 being the children of his second wife, deceased Ponnammal. The case of the plaintiffs is that all of them are members of the joint family and all of them are entitled to a share. According to them defendants 4 to 8 are entitled to 1/12th share in the properties. Further, the deceased fourth defendant along with other defendants and the plaintiffs are partners in the firms. The plaintiffs based their claim for partition. As an alternative relief, the plaintiffs have also asked for the relief of rendition of accounts from defendants 4, 5 and 7 from 5-10-1972 for running the nine lorries belonging to the joint family. Defendants 4, 5. 7 and 8 filed a common written statement wherein they claimed 4/12th share in the properties and for effecting division of their share. They also paid the necessary court fee and prayed for decree in their favour in respect of their share. Thus it is seen that the case put forward by defendants 4, 5, 7 and 8 as well as the plaintiffs is one and the same. It is only on the pleadings, a specific issue (issue 8) was framed to the effect. What is the share of the plaintiffs and defendants 4 to 8. The trial court, as already stated, held under issue 8 that the plaintiffs as well as defendants 4 to 8 are not entitled to claim any share in the same and the issue was answered against them. What is the share of the plaintiffs and defendants 4 to 8. The trial court, as already stated, held under issue 8 that the plaintiffs as well as defendants 4 to 8 are not entitled to claim any share in the same and the issue was answered against them. It is only challenging the said finding, these two appeals have been filed by the plaintiffs as well as the eighth defendant. It is not in dispute that the fourth defendant has left behind his wife, daughter and sons as his legal representatives. If the suit claim against the fourth defendant is abated and the decree of dismissal and the finding of the trial court has become final, certainly there will be a conflicting decree in case if the appeals are allowed and the case of the plaintiffs and defendants 5, 7 and 8 is accepted. In the plaint the plaintiffs have prayed for a direction to defendants 4, 5 and 7 to render an account of the income from the lorries run by them from 5-10-1972 till they are put in separate possession of the same. Defendants 4, 5 and 7 are jointly liable to render account in respect of the income from the lorries and that it has not been apportioned and the claim is made jointly against defendants 4, 5 and 7 besides they are claiming for a decree for 4/12th share, in the suit properties. It is not in dispute that this is a suit for partition and the legal representatives of the deceased fourth defendant should succeed to the estate of his divided share. As already stated, the liability of defendants 4, 5 and 7 with regard to the relief of accounting has not been apportioned and the decree against the deceased fourth defendant has become final so far as he is concerned, as a result of abatement of the appeal If a decree were to follow in favour of the plaintiffs as well as defendants 4, 5, 7 and 8 on the basis of their claim made in the plaint as well as in the written statement, the decree to be passed would be inconsistent with the decree as between the deceased fourth defendant, the plaintiffs and defendants 5, 7 and 8. The ratio laid down in the above decisions is in all fours applicable to the facts of this case and applying the ratio, we find much force in the contentions of the learned counsel for the respondents. The appeals cannot be proceeded with by the appellants in both the appeals. So, when the learned counsel appearing for the appellants were asked by this court as to why no steps have been taken, they submitted that it is not necessary to implead the legal representatives of the deceased fourth defendant. 17. Let us consider the decisions relied on by the learned counsel appearing for the appellants in A.S. No. 8 of 1983. Mr. T.S. Subramaniam relied on the decision in Velappa v. Parappan, and submitted that in view of O. 22, R. 4(4) no legal representative is necessary as in the instant case the fourth defendant is not a necessary party. In the above quoted case, it was held : “Held, that where during the pendency of a suit the defendant dies the first question that falls for consideration is whether the right to be sued against, survives or not If it survives then the suit can be continued; but nothing could be done immediately until the party who could contest is brought on record. On the death of a party an action is in a state of suspense and proceedings will have to be taken under the provisions of O. 22, R. 4 provides the procedure. The abatement of a suit as against the deceased defendant is provided for only under sub-clause (3) if within the time limit an application to bring on record the legal representatives has not been made. But an exception is engrafted on this provision by the words ‘except as hereinafter provided’ and that brings in sub-clause (4) which enables the Court to exempt the plaintiff ‘whenever it sees fit’ from substituting the legal representatives of a deceased defendant who had been declared exparte. The provision is in respect of an ex parte defendant or respondent, who has taken no interest in the litigation. The provision is in respect of an ex parte defendant or respondent, who has taken no interest in the litigation. Hence the provisions of O 22, R. 4(4) could be vailed of at any time before judgment.” It is to be noted that O. 22, R. 4 is specifically applicable to the case of the defendant who has been declared ex parte or who has failed to file a written statement or who having filed it, has failed to appear and contest and in such cases the plaintiff may be exempted from substituting legal representatives for such defendant and that rule is not applicable to the instant case Further, in the above decision it was stated that if a person is pro forma respondent having no interest in the litigation, the rule providing for abatement cannot be applied. In the instant case, as discussed above, it cannot be said that the fourth defendant is a pro forma defendant and that he has no interest in the litigation. As such, the said decision is not relevant in deciding the issue before us. The learned counsel then relied on the decision in Mohammad Mustaqeen v. Aftab Ahmed A.I.R. 1962 S.C. 89. That decision also deals with O. 22, R. 4(4), C.P C. However, the said decision is also not relevant for deciding the issue involved in the appeals, as the main question that arose was whether the legal representatives of the deceased are entitled to make an application under O. 1, R. 10, CPC. independent of the application filed by the plaintiff and exemption was granted by court under O. 22, R. 4, C.P.C. It was held that the grant of exemption to plaintiff from moving an application for substitution does not take away the right of legal representatives to get them selves substituted or brought on record. Yet another decision relied on by the learned counsel for the appellant is Janabai Ammal v. Palani Mudallar A.I.R. 1963 S.C. 553, wherein it was held that if a person is pro forma respondent having no interest in the litigation, the rule providing for abatement cannot appiy. The said decision is also not relevant for the purpose of this case. As already staled, the fourth defen-dent cannot be said to be a party who has no interest in the litigation and he is not a pro forma party. The said decision is also not relevant for the purpose of this case. As already staled, the fourth defen-dent cannot be said to be a party who has no interest in the litigation and he is not a pro forma party. On the other hand, he is very much interested in the proceedings and getting his 1/12th share along with his brothers. He paid the court fee, took active part in the litigation and examined himself as D.W.1 and exhibited documents in support of his claim. The decision in Municipal Board, Lucknow v. P. Bhargava A.I.R. 1963 S.C. 1901 was relied on by the learned counsel for the appellants wherein it was held that in a suit for rendition of accounts and for recovery of amount, on account of death of one of the defendants, it cannot be said that the whole appeal has abated. That was a case where the Municipal Board, Lucknow, instituted a civil suit against seven defendants praying for a decree for such amount as may be found due or in the alternative a decree for such amount as maybe found due or in alternative a decree for the sum of Rs. 69,642-66 against the defendants. Written statements were filed by defendants 1 to 3, 5 and 7. Defendants 4 and 6 admittedly migrated to Pakistan and their property was declared evacuee property by the custodian under the Administration of the Evacuee Property Act, who was impleaded as defendant No. 7. Issue No. 6 framed was whether the suit is not maintainable as alleged in paragraph 22 of the written statement of defendant No. 1, and issue No. 9 framed was, is the suit on the ground of negligence barred by limitation. The civil judge answered both the issues against the Board. The high court in appeal decided the question of maintainability in favour of the board and with regard to the issue regarding limitation, the high court set aside the judgment of the civil judge relating to defendants 1 to 3 and held that the suit was not birred by limitation while affirming the decree of the civil judge in respect of defendant No. 5 holding that the suit was barred by limitation as against him. Thereafter (he board made an application for review before the high court with regard to two observations made in the judgment. Thereafter (he board made an application for review before the high court with regard to two observations made in the judgment. The learned counsel for respondents 1 to 3 raised a preliminary objection on the ground that the appeal has abated on account of the fact that Mohammed Yusuf, respondent No. 5, died more than six years back and the application of the appellant for setting aside the abatement of appeal with regard to respondent No. 5 was dismissed. The learned counsel for respondents 1 to 3 contended that the whole appeal has abated on account of the above position. It is only in those circumstances, their lordships observed : “We are, however, unable to agree that the question of abatement in this case would arise in view of the fact that even if the suit had been dismissed against defendant 5, the defendants 1 to 3 could individually be sued for rendering accounts and for recovery of the amount due from them. Whether they would be ultimately found by the court to be liable for the plaintiffs claim, is a different matter and will be decided in the suit. There is, therefore, no substance in the plea, that the appeal as a whole has abated on account of the death of Mohd. Yusuf.” It was decided on the facts of that case and the same cannot be relied on in this case as it is not in any way useful to the appellants. Since we have taken the view that the presence of the legal representatives of the deceased fourth defendant are necessary for deciding the issue involved in the appeal and the decree of the lower court has become final as far as the fourth defendant is concerned as it has not been set aside, the appeals by the plaintiffs and the eighth defendant cannot be proceeded with, for the reasons already stated above. The cross-objections also cannot be proceeded with. Accordingly we uphold the preliminary objection raised by the respondents that the appeals cannot be proceeded with. 20. In the result, the appeals are dismissed. The cross-objections are also dismissed. There will be no order as to costs in all the cases.