P. Venkatarama Reddi, J.
1. This appeal and cross-objections arise out of the judgment and decree of the learned Additional District Judge, Krishna, at Machilipatnam in O.S. No.l of 1977. The said suit was filed for setting aside the order dated 4-11-1975 of the Deputy Commissioner, Endowments, Vijayawada in O.A.No.95 of 1973 and to declare that it is a private property of the plaintiff and the 8th defendant. The Deputy Commissioner, Endowments passed the order under Section 77 of the A.P. Chairtable and Hindu Religious Institutions and Endowments Act, 1966 (hereinafter referred to as' the Act'). One Sri Veerabhadraiah, who was the third defendant in the suit was the applicant before the Deputy Commissioner of Endowments. The said application was filed under Section 40 of the Act to modify the entry in the property register according to which the suit schedule property was shown as a part of registered endowment by name, Sambasiva Annadana Satram at Chilakalapudi. The application was rejected by the Deputy Commissioner, who held that the property was endowed in favour of the Public Charitable Institution, namely, Annadana Satram and, therefore, the entry need not be modified. Against this order, the aforesaid suit was filed under Section 78 of the Act. The learned Additional District Judge decreed the suit partly. He held that there is no complete dedication of the income from the property and that the dedication was only subject to certain conditions. The learned Judge held that the title to the property was not transferred to the Annadana Satram and that the persons named by the founder in Ex.B-3 continued to enjoy the property subject to an obligation that they should maintain the Sambasiva Annadana Satram and perform poor feeding from out of the income from the suit property. In that view, he held that no religious and charitable endowment was created under Ex.A-3. 'But, charity has been created over the suit properties for the maintenance of Sambasiva Annadana Satram and that the parties, namely, Sarepalli Veerabhadraiah, Subba Rao, Veerabrahmam and Somasundara Rao are entitled to be in possession of the suit property without the power of alienation, subject to the obligation of maintaining the Annadana Satram and performing poor feeding'. In the result the decree was passed in the following terms:-
(1) The suit property is not an absolute charitable endowment.
(2) The suit property is inalienable subject to a charge for.... the maintenance of the Sambasiva Annadana Satram and for performing poor-feeding from out of the income from the property.
(3) The persons named in Ex.A-3, will, as the trustees by the founder Sambaiah i.e., Sareppali Veerabhadraiah, Subba Rao, Veerabrahmam and Somasundara Rao and their L.Rs. be in possession of the suit properties without right of alienation and expend the income realised therefrom as per their wish for the maintenance of the Annadana Satram and for poor feeding after deduction of the cist and maintenance charges.
(4) The order of the Deputy Commissioner dt.4-11-1975 and made in O.A.No.95/73 be and is hereby set aside to the above extent.
2. Contesting this decree, the Assistant Commisioner of Endowments, Vijayawada filed the present appeal. In so far as the judgment is against the defendants, Cross-objections have been filed by the plaintiff and defendants 4 to 8 in the suit.
3. The learned counsel for the respondents, Mr. M. Ramachandra Rao, has raised a preliminary objection against the maintainability of the appeal. He submits that Sarepalli Veerabhadraiah who was the third defendant in the suit and who was the applicant before the Deputy Commissioner, though a necessary party to an appeal was not impleaded at all, presumably on the ground that he remained exparte in the lower court that in the absence of the said Veerabhadraiah, the appeal shall fail on account of non-joinder of necessary party and that even if the appellant succeeds against the other impleaded parties, having regard to the nature of the decree passed, it would become unworkable.
4. On the other hand, it is contended by the learned Government Pleader that when it was brought to the notice of the appellant that Veerabhadraiah died in the year 1985, an application to bring the legal representatives on record and to set aside the abatement was filed in the year 1990 and, therefore, the question of non-joinder of necessary party does not arise.
5. I think that the preliminary objection raised by the appellant's (sic respondent's) counsel ought to be upheld. The fact that the 3rd defendant remained ex parte in the suit does not absolve the appellant from the obligation to implead him as a party in the appeal, if he is otherwise a necessary party. It may be that a notice need not be sent to the party who remained ex parte in the applications for interim orders. But in the main appeal, irrespective of the fact whether a particular party remained ex parte in the suit, he ought to be impleaded and notice has to be taken out. This is the legal position after the amendment of Order 41, Rule 14(4) CPC in the year 1976. The matter is no longer in doubt in view of the judgment of a Division Bench of this Court in Sharifa Bee v. A.P.S.R.T.C. 1990(3) ALT 628(D.B.)., wherein the learned Judges observed:
'It is to be noticed that Order XLI Rule 14(1) of the Code of Civil Procedure had been amended in Madras in 1927 by incorporating a Proviso which stated that if a respondent was ex parte in the Court below notice to him should be dispensed with in the appeal. Following the said rule, which is applicable in Andhra Pradesh, it has been the practice to show the name of a particular party as a respondent in the cause-title and make an endorsement that no notice need go to him in the appeal when the said respondent remained ex parte in the trial Court. The above said rule was, however, modified when the Civil Procedure Code was amended in 1976. We now have Order XLI, Rule 14(4) which reads as follows:-
'Order XLI, Rule 14(4): Notwithstanding anything to the contrary contained in sub-rule (1) it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the Appellate Court, unless he has appeared and filed an address for service in the Court of first instance or has appeared in the appeal.'After the said amendment, it has become necessary to take out notices to a party respondent who has remained ex parte in the lower Court, by impleadinghim in the appeal as a respondent, for the purpose of a decision in the main appeal. So far as the grant of interim orders are concerned, the above said rule in Order XLI, Rule 14(4) states notice is not necessary. In other words, if a respondent had remained ex parte in the trial Court, notices need not be taken out to him while the Appellate Court is passing orders in interlocutory applications, though for the purpose of deciding the main appeal it will be necessary to take out notices to such a person. In fact, it has been held so by one of us (Jagannadha Rao, J.) in L. Sooraiah v. L. Soma Raju (1988 (1) APLJ 107 (HC)).'
6. In the present appeal, the 3rd defendant was not impleaded at all. His name was not shown in the cause-title. There is an endorsement in the memorandum of appeal stating that 'respondents 2 and 3 are ex parte and hence they are not necessary'. In fact, the 3rd defendant in the suit, Sri Sarepalli Veerabhadraiah is neither the second nor the third respondent in the appeal. Hence that endorsement is obviously meaningless. Even otherwise, in view of the judgment of the Division Bench referred to earlier, it was incumbent on the part of the appellant to add the 3rd defendant as a party and take out notice to him. For the reasons best known to the appellant, no such procedure, was adopted. As already stated, the learned Government Pleader for the appellant contends that the 3rd defendant having died in the year 1985, petitions to add his legal representatives were filed in the year 1990 and that satisfies the requirements of Order XLI Rule 14(4) CPC. I am unable to agree with the learned Government Pleader for more than one reason. Firstly, there is no question of bringing on record the legal representatives of a person who was never a party in the appeal. The application to add the legal representatives of the 3rd defendant is therefore misconceived. Secondly, the so-called L.R. applications filed by the appellant were returned by the office on 24-9-1991 as they were not in order. The office objection was not complied with the there is nothing to show that the applications were ever represented. The learned Government Pleader has placed before me the office copies of the papers said to have been filed and served on the respodnents' counsel. One is an affidavit praying for an order to implead six persons as the legal representatives of the deceased-3rd defendant. The other is an application filed to set aside the abatement caused due to the death of respondent No.......(Blank). It does not appear that even an application to condone the delay was filed. It does not appear that a separate petition to bring the legal representatives on record was filed. Be that as it may, as already noted, the papers in S.R. Nos. 58014 and 58016 of 1990 having been returned long back were not represented and therefore no argument can be built up on the basis of those abortive applications.
7. The next question is whether notwithstanding the failure to implead the 3rd defendant in the suit, the appeal could be proceeded with against the other respondents. I do not think that having regard to the terms of the decree passed by the lower Court and the nature of the dispute raised in the appeal, the appeal should be taken up in so far as the other parties are concerned. According to the decree, respondents 2, 3 (respondent No. 3 died during the pendency of the appeal and his legal representatives were brought on record), S. Veerabhadram whose legal representatives are defendants 6 and 7 in the suit and S. Veerabhadraiah (3rd defendant in the suit) and their legal representatives who remained in possession are entitled to be in possession of the suit property without the power of alienation but subject to the maintenance of the 'Sambasiva Annadana Satram' and performance of poor-feeding, in terms of Ex. A-3. Thus if for any reason the appeal is allowed against these three persons, nevertheless, Veerabhadraiah's legal representatives can still remain in possession of the property taking advantage of the fact that the decree has become final as far as Veerabhadraiah is concerned. This results in conflicting decrees thereby creating an anomalous situation. Inasmuch as under the terms of the decree the suit property has to be possessed and enjoyed jointly by the four persons named therein including Veerabhadraiah, the appeal cannot be confined only to the three persons excluding Veerabhadraiah. Veerabhadraiah is as much a necessary party to the appeal as three other joint owners who have been impleaded in the appeal.
8. In R.P. Gupta v. Murali Prasad : [1973]1SCR63 ., it was held that in an appeal arising out of a suit for dissolution of partnership and accounts, if there was failure to bring the legal representatives of one of the sharers on record during the pendency of the appeal, the appeal cannot be heard. The Supreme Court referred to certain tests which are to be applied in considering the effect of non-joinder of a party in an appeal. One of the tests pointed out is that 'the Courts will not proceed with an appeal (a) when the success of the appeal may lead to the court's coming to a decision which may be in conflict with the decision between the appellant and the deceased respondent and therefore, it would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased- respondent'. Applying this test, the conclusion is inevitable that in the absence of (sic. in view of) Veerabhadraiah (3rd defendant in the suit) not having been impleaded in the appeal and his legal representatives not having been brought on record, the appeal is not maintainable. In other words, the appeal cannot be proceeded with in view of non-joinder of a party whose presence was essential in the appeal. The appeal therefore fails and is accordingly dismissed, but in the circumstances, without costs.
Memorandum of Cross-objections:-
9. The respondents in the appeal have filed memorandum of cross- objections. Their contention is that the suit property fell to the share of Sambaiah in the partition deed dated 2-4-1947 (Ex. A-3) and as it was his private property he bequeathed the same by a will dated 21-11-1951 (Ex.A-4) in favour of the plaintiff and N. Satyanarayana, (husband of the 2nd defendant). The respondents, therefore attack the finding of the lower Court that a charity has been created over the suit property for the maintenance of Sri Sambasiva Annadana Satram although the charity was not in the nature of a religious or charitable endowment as defined under the Act. According to the learned counsel for the cross-objectors, the lower Court had misconstrued the recitals in Ex. A-3 (Partition deed). The learned counsel submits that the relevant recital would only lead to a reasonable conclusion that the charity was intended to be created for the purpose of maintenance of Sri Sambasiva Annadana Satram in the future by means of a separate document and that this intention was never translated into action by execution of separate document because Sri Sambasiva Annadana Satram never functioned. In order to appreciate this contention, it is necessary to extract the relevant recital in Telugu:
10. I do not think that the interpretation placed by the learned counsel on Ex.A-3 is correct. The above recital would make it clear that the first party to the document (Sambaiah) decided to place the schedule-mentioned property at the disposal of the persons named therein (including the parties in the appeal) for the specific purpose of maintenance of Sri Sambasiva Annadana Matham. It was categorically stated that the said property was not available to be partitioned or alienated at any time and that the income from the property should be regularly utilised for the purpose of Sri Sambasiva Annadana Matham. The mere fact that a formal document was not executed as contemplated in Ex.A-3 does not mean that a charity was not created at all or that the arrangement made in the partition deed remained as a dead letter. I do not therefore see any reason to disturb the finding of the lower Court on this aspect.
11. The learned counsel for the appellant has cited a decision in Venkatachalapathi Aiyar v. China Muna Chakrapani Aiyar, 1922 M.L.J. 259 in support of the contention that there was no creation of charity in the present case. The recitals in the document considered by the Madras High Court in that decision were quite different. As found by the learned Judges, the parties contemplated taking the advice of mediator in settling the details of the trust they desired to create and incorporating the same in a formal deed of trust. Moreover, the learned Judges observed:
'The language of Ex.A. in saying 'shall be allotted and a dharma sasanam be executed' seems clearly to point to a trust to be created in the future by a proper deed. No doubt Ex.A. uses the expression 'which has been allotted' with reference to the Rs. 300 - but that must be read with what follows and I think it only means 'which we have agreed to allot'.
The decision cited by the learned counsel does not apply to the facts of the present case, wherein the recitals are different.
12. No other point having been urged, I see no merits in the cross-objections and the memorandum of cross-objections is accordingly dismissed.
13. In the result, the appeal as well as the memorandum of cross-objections are dismissed, but in the circumstances, without costs.