DEVI DAYAL Vs. BHUPINDER KUMAR

JUDGEMENT

(1.) This suit was filed by Devi Dayal (who has since been substituted by his legal representatives) for the recovery of Rs. 2,50,000.00. It was alleged in the suit that one Ch. Ram Narain Bishnoi took from the plaintiff different loans totalling Rupees 1,43,000.00 and executed pronotes in favour of the plaintiff on the said dates. It was also stated in para 4 of the plaint that about a year back Ch. Ram Narain died and the defendants are his sons and legal representatives of his estate and are bound to pay the just debts of their father. A decree for Rupees 2,50,000.00 comprising of Rs. 1,43,000.00 as principal and Rs. 1,07,000.00 as interest was therefore prayed. Suit was filed on 18-1-1965. In the suit when the evidence was being taken on commission on 6-2-1971 the advocate for the defendants made a statement that Banwari Lal, defendant No. 2 had died by failure of heart on 31-1-1971. On this the advocate for the plaintiff stated that the case could not proceed in the absence of the deceased defendant and the case was, therefore, adjourned for further proceedings. On this the Commissioner adjourned the matter and returned the proceedings to the court for further necessary action.

(2.) I. A. 492/72 dated 20-3-1972 has been filed in which it is stated that as three defendants had been sued jointly as representing the estate of their father, Ch. Ram Narain, and the plaintiffs having taken no steps to bring the legal representative of deceased, defendant No. 2, on record the suit of the plaintiffs has abated altogether as the right to sue did not survive against the other two defendants as their liability if any was joint and indivisible.

(3.) A reply has been filed on behalf of plaintiffs. The factum of death of defendant No. 2 is not denied. The liability of the sons is stated to be not personal and is only confined to the share of each son enjoyed by him of the ancestral property. The liability is, therefore, stated to be joint and several and the right to sue survives against the other two defendants. It is denied, therefore, that there is any abatement.