Varadachariar, J

[1] This second appeal raises a point of procedural law, namely whether the plaintiff can maintain this suit for a declaration that the judgment in A.S. No. 85 of 1924 on the file of the Ramnad Sub-Court and the proceedings subsequently taken on the basis thereof are null and void as against him or whether his only remedy is to apply to the Court which passed that decree to vacate it. That appeal arose out of a suit, O.S. No. 766 of 1918 on the file of the District Munsif s Court of Sivaganga which at later stages, by reason of transfers to different Courts, came to be numbered as O.S. No. 348 of 1922 and O.S. No. 412 of 1925, the last being the stage after the remand consequent upon the appellate decision in A.S. No. 85 of 192

4. That suit had been instituted by the present defendant 1 claiming a half share in certain properties as against defendant 2 and one Muthuraman Chetty the grandfather of the present plaintiff. The District Munsif dismissed that suit but on appeal that decree was reversed and the suit was remanded to the Munsif s Court for passing a final decree in plaintiff s favour. Even while the suit was pending before the Munsif in the first instance, Muthuraman Chetti, the then defendant 1 died and his two sons, viz., this plaintiff s father and another were brought on record as his legal representatives as defendants 4 and 3. When the matter was pending before the appellate Court, the present plaintiff s father died in or about 192

4. No Legal representative was brought on record in his place and the appellate Court reversed the lower Court s decree, perhaps in ignorance of the death. The plaintiff now contends that the decree passed by the appellate Court in reversal of the lower Court s decree, after the death of his father and without his legal representative on record, is null and void as against him.

[2] The first Court dismissed this suit on the ground that the other son i.e., defendant 3 in that suit, who still continued on the record of A.S. No. 85 of 1924 had the same defence as the plaintiff s father, that both of them had been represented by the same vakil when the matter was before the Court of first instance, that this common defence was also urged before the Court of appeal, and that the case is governed by Order 41, Rule 4, Civil P.C., according to which one of several plaintiffs or defendants may obtain a reversal of the whole decree where it proceeds on a ground common to all. In the opinion of the learned District Munsif A.S. No. 85 of 1924 did not abate, by reason of the plaintiff s father s death. The lower appellate Court has confirmed his decree but on somewhat different grounds. In the opinion of the learned Subordinate Judge, the judgment passed by a Court even without a legal representative of a deceased party is not a nullity and hence cannot be set aside by a suit, but the legal representative who has not had a hearing can claim re-hearing, on the ground that he has been prejudiced. Reliance has been placed by the learned Subordinate Judge on Vellayan Chetty v. Mahalinga Ayyar 1916 Mad. 574 in support of this view and also on a passage from Black on Judgments cited in Goda Coopooramier v. Soondarammal (1910) 33 Mad. 167.

[3] I may say at once that cases like Vellayan Chetty v. Mahalinga Ayyar 1916 Mad. 574 have really no bearing upon the question now in dispute, because, where the decision is in favour of a dead man the position is different from a case where the decision is against the dead man : see Subramania Iyer v. Vaithianatha Iyer 1916 Mad 65 [LQ/MadHC/1914/477]

6. As explained in Suryanarayana v. Joga Row 1930 Mad. 719 [LQ/MadHC/1929/382] the principle underlying that class of cases is that a party who is alive and has been heard cannot take advantage of the death of his opponent and claim a rehearing. Whether the death of any party does not wholly put an end to the jurisdiction of the Court to give judgment, so far as he is concerned, whether in his favour or against him, is a larger question that need not be considered here. Some cases seem to go that length : cf. Viswanatha Duyanoba v. Lallu Kabla (1909) 4 I.C. 137.

[4] The passage from Black on Judgments is no doubt of very wide import and putting both oases on the same footing goes to the other extreme of holding the decision prima facie valid in both cases. The tenor of the discussion in Goda Coopooramier v. Soondarammal (1910) 33 Mad. 167, would however show that the learned Judges were not prepared to go so far. They rest their conclusion upon the distinction between a case where the decision is in favour of a dead person and a case where it is against a dead person. Though the passage from Goda Coopooramier v. Soondarammal (1910) 33 Mad. 167 be has cited without comment in a decision of the Lahore High Court in Tota Ram v. Kundan 1928 Lah. 784 it seems to me impossible in view of a long line of authority to the contrary, to apply the rule stated by Black in all its generality, in this country. As early as in Radha Prasad Singh v. Lal Sahib Rai (1891) 13 All. 53 the Privy Council observed that a decree obtained after the death of a defendant cannot bind the representatives of the deceased, unless they had been made parties to the suit in which it was pronounced ; and the same principle is re-affirmed by their Lordships in Wajid Ali Khan v. Puran Singh 1929 P.C. 5

8. Their Lordships observe, at p. 273 that:

Where the appeal is heard in the absence of the legal representatives of the deceased respondent and the decree of the first Court is reversed.... It is clear that the legal representatives of the deceased respondent against whom the appeal has abated cannot be bound by the appellate decree.

[5] Much stronger and clearer language has been used in several judgments of the High Courts in India, among which it is sufficient to refer to Subramania Iyer v. Vaithianatha Iyer 1916 Mad 656, American Baptist Foreign Mission Society v. Pattabhiramayya 1919 Mad 685, Narendra Bahadur Chand v. Gopal Shah (1919) 20 I.C. 505. In some of these cases the question arose in the course of proceedings in execution of the decree and it was held that the decree is so far void as even to entitle the executing Court to refuse to execute it. That this is the true import of the Privy Council decision in Radha Prasad Singh v. Lal Sahib Rai (1891) 13 All. 53 is also the view taken in the case in Amdad All v. Jagan Lal (1895) 17 All. 478 which is referred to and followed in many of the later cases : see also Sripat Narain Rai v. Tirbani Misra 1918 All. 22

6. The other reason, stated in para. 2 of the lower appellate Court s judgment that proceedings taken by a Court even after the death of a party are not void-so long as no application is made to bring the legal representatives on record is unintelligible. If the learned Judge meant so long as there is time to bring them on record, the statement may be intelligible even though it would not be correct. Anyhow that was not the fact in the present instance. Turning now to the reasons given by the District Munsif, I must observe that his reasoning based upon Order 41, Rule 4, Civil P.C. is not correct. There has been a difference of opinion as to whether this rule can be relied on by legal representatives when their predecessors, in-title had actually been parties to an. appeal but on whose death the legal representatives have not chosen to come. on the record, of Chenchuramayya v. Venkatasubbiah 1933 Mad. 655 [LQ/MadHC/1933/34] with Amin Chand v. Baldeo Sahai 1934 Lah. 20

6. But it is, unnecessary to consider that point here, for Order 41, Rule 4 can be invoked only in the case of appellants with a common defence in the lower Court and not in the, case of respondents. Further, Order 41, Rule 4 provides only for some of the appellants getting a decision in favour of all persons having a common interest and has no application to or bearing on a case like the present, where the question is whether a decree can be passed against a dead man, though there is another person on record with the same defence as that of the dead man.

[6] I am, however, of opinion, that apart from the reference to Order 41, Rule 4, the conclusion of the District Munsif is correct. The position in the present case was that the suit had been originally instituted against the plaintiff s grand-father as one of the defendants and all that was required for the purpose of upholding the jurisdiction of the Court to deal with the matter to the end was that the estate of the grandfather should continue to be duly represented. As stated already, on the death of the grandfather, his two sons were brought on record, that is, the estate was re-presented by two persons as legal representatives. The question for consideration is, when one of them dies and his legal representative is not brought OB record, does the original estate that was at first represented by two persons as legal representatives and is later on represented by one of them only cease to be represented, for the purpose of that litigation.

[7] If the answer is in the negative, the Court will undoubtedly continue to have jurisdiction to deal with 4he matter in controversy, whatever other remedies any person may have, on the ground that he was interested in the controversy but was not brought before the Court. Argument has accordingly been directed to this aspect of the matter and a number of cases have been brought to my notice. In dealing with these cases it seems to me, though Mr. Krishnaswami Iyer for the appellant maintains the contrary, that a difference has to be kept in view, between cases in which the original party to the action dies and his legal representative is not brought on record, though there may be others having common interest with them, and cases in which only one of several legal representatives brought in as such during the pendency of an action, dies and the estate continues to be represented by the remaining legal representatives. Whatever the position may be as regards the first group of cases, I am of opinion that in the second group there is no lack of representation of the estate, that the remaining representatives can as well represent the estate as the original group did, and that the principle applicable to this class of cases is to be gathered from those decisions which uphold the doctrine of representation of an estate by some of the heirs of a deceased person when such heirs are sued as defendants in the first instance. Some of the steps in the arguments, bearing upon the above question, are rendered doubtful by conflict of authority. Some decisions put a very strict construction upon the rules of Order 22, and go the length of holding that unless all the legal representatives are actually on record, there can be no representation at all and the whole decree is void : see for instance Chuni Lal v. Amin Chand 1933 Lah. 356, Haidar Hussain v. Abdul Ahad (1908) 30 All. 117 and Muhammad Hassan v. Inayat Hussain 1927 Lah. 9

4. The preponderance of authority is, however, in favour of the view that there will be no abatement if at least some representatives are on record : see for instance Shib Dutta Singh v. Karim Baksh 1925 Pat. 551 [LQ/PatHC/1924/212] and Mt. Begam Jan v. Mt. Jamat Bibi 1927 Lah. 6 : see also Ramanathan Chettiar v. Ramanathan Chettiar 1929 Mad. 275 [LQ/MadHC/1928/312] . Apart from the provisions of Order 22, the question whether in any suit, an estate can in the first instance be represented by some of the heirs entitled thereto in the absence of other heirs, has often come up for consideration and the preponderance of authority is in favour of the view that, in the absence of fraud or collusion, the representation by some of the heirs will be sufficient representation : see Kadir Mohideen v. Muthukrishna Ayyar (1903) 26 Mad 230, Govindaswami v. Annamalai 1927 Mad. 1071, [LQ/MadHC/1927/150] Abdulla Sahib v. Vajeer Beevi Ammal 1928 Mad. 1199 [LQ/MadHC/1928/177] and Jehrabi v. Bismillabi 1924 Bom. 420 [LQ/BomHC/1924/30] . Much the same reasoning has been imported even in the construction of the provisions of the old Code corresponding to Order 22, in the judgment of this Court in Musala Reddi v. Ramayya (1900) 23 Mad. 125.

[8] In Sripat Narain Rai v. Tirbani Misra 1918 All. 226 [LQ/AllHC/1918/49] the Court left the question open, as to what the effect of representation of the estate by other persons might be. It contented itself with saying that for the purpose of execution against the legal representatives of the deceased persons, there was no executable decree, because the predecessor had died before the decree was passed.

I am unable to agree with Mr. Krishnaswami Ayyar s contention that the omission to bring on record the legal representative of defendant 4 in A.S. No. 85 of 1924 made the estate of the deceased Muthuraman Chetti (defendant 1) unrepresented. It is not necessary for the purpose of this case to say whether it is such a complete representation as to preclude the plaintiff even from seeking to re-open the decree in A.S. No. 85 of 1924, by appropriate proceedings in the Court which passed that decree. It is sufficient to say that it is not a case of such non-representation as would entitle the present plaintiff to treat that decree as null and void, In this view the second appeal fails and is dismissed with costs.