Patel Mithabhai Madhav (deceased by his heirs) vs Patel Somabhai Motibhai (deceased) and Another

V.B. Raju, J.—In this second appeal, respondents are Somabhai and Natwarbhai. During the pendency of the second appeal Somabhai died, and notice of the second appeal could not be served on him. The Learned Counsel Mr. Parikh declined to bring the heirs of Somabhai on record, and he had not argued before the Registrar that the present party on the record is the legal representative and heir of the respondent No. 1. Originally, the suit was against two defendants, namely: (1) Somabhai, Motibhai, and (2) Natwarbhai Motibhai, on the allegation that certain hedge was of a joint ownership. The suit was for an order to direct both the defendants to remove the hedge. The suit was filed against two defendants, because, they were the joint owners of the hedge. When the defendants are joint owners of a property involved in the suit, the second appeal must abate as a whole and not in part in respect of one of the joint owners only, because unless both the owners are joined as parties, the appeal itself would not be properly constituted.

Moreover, if an order adverse to the remaining respondent is passed in the second appeal and an order cannot be passed against the respondent against whom the appeal has abated, there would be a conflict, in view of the test laid down by their Lordships of the Supreme Court in The State of Punjab Vs. Nathu Ram, . I must, therefore, hold that the appeal abates as a whole, because the two respondents are joint owners of the hedge and the appeal cannot abate in respect of only one of the respondents.

The appeal abates. No orders as to costs.