VENKITESWARA PAI RAMA PAI Vs. LUIS

JUDGEMENT

(1.) This Civil Revision Petition has arisen in a suit for specific performance of a contract for sale of landed property, 16 acres odd in extent, belonging to the Hindu coparcenary of defendants 1 to 3. The suit was contested by the 1st defendant. On December 26, 1957, the 2nd defendant died intestate, leaving behind a widow, two daughters and two sons. As none had been impleaded as his legal representative, the 1st defendant on December 10, 1960, filed C. M. P. No. 4514 of 1960 for a declaration that the entire suit had abated, and a copy of that petition was given to counsel for the plaintiff. The same day, the plaintiff filed C. M. P. No. 4516 of 1960 stating that, though the case stood adjourned to that day for impleading the legal representatives of the 2nd defendant, it was not necessary to implead any in place of the deceased as he was only a pro forma party and the 1st defendant was competent to represent the entire family in the suit. Those two petitions were disposed of by the Subordinate Judge by a common order accepting the plaintiff's plea. The 1st defendant seeks revision of that order. When the C. R. P. came before a Single Judge it was adjourned to be heard by a Bench; and subsequently a Division Bench referred it to a Full Bench.

(2.) Supporting the order of the Court below counsel for the plaintiff respondent contended that defendants 2 and 3 are not necessary parties to the suit, but have been impleaded only as pro forma parties. That the suit property belongs to a Mitakshara coparcenary is not in dispute here. The plaint is clear that the suit is against the coparcenary and that the 1st defendant is sued as the Karta thereof. But, the contract for sale having been entered into by defendants 1 to 3 as representatives of the family, the suit on the contract must be against all the three. The contention of Sri Krishmoorthy Iyer that, even though the defendants 1 to 3 have jointly made the suit contract on behalf of the family, the 1st defendant alone might have been sued on the contract for a decree against the family, is not acceptable. No authority thereto is cited before us; and the observations in Kishen Parshad v. Har Narain Singh (38 Ind. App. 45) seem to be against it. See the principles of Hindu Law by Mulla, 12th Edn. pages 377 & 378.

(3.) But the question here is not of the constitution of the suit at its institution, but of the effect of the death of the 2nd defendant pending suit. He died intestate in 1957, that is, after the commencement of the Hindu Succession Act, 1956. S.6 of that Act provides: