JAGDISH NARAYAN NATHULAL Vs. RAMKISHAN BADRILAL KHANDELWAL

JUDGEMENT

(1.) THIS is an application by the defendant in a small cause suit brought by some but not all the heirs of the original creditor. The basic defence which alone has to be considered at this stage is whether some of the heirs of the original "creditor", could sue leaving out the other heirs. In the instant case the heirs left out are the daughters; but the father had died after the commencement of the Hindu Succession Act and the suit itself had been filed in 1969.

(2.) THE circumstances leading to the suit are somewhat complicated. The following summary is sufficient for our purposes. There was some accommodation in the ownership of Badrilal Onkarji father of the present plaintiffs who died sometime in 1967. In Badrilal's time this accomodation had been rented out at Rs. 5 per month to one Shivharak. Shivharak himself is not now in the picture because the person in possession is the present defendant-appellant claiming to be the sub-tenant of Shivharak. Badrilal having obtained a decree tried to take possession which was resisted by the present defendant. But it has. been held as the final decision of the Courts that the defendant is not the tenant of Badrilal. Actually the defendant himself had brought a declaratory suit which itself had been dismissed on 18-11-1968. Ultimately the defendant did quit but for a period he had been in unlawful possession. For that period the present plaintiffs filed a suit for damages calculating it at rs. 12 a month. For three years it comes to Rs. 432. They added also about rs. 20 as interest and filed the suit in the Small Cause Court. Though the amount claimed is of the nature of damages it is a liquidated sum and there is no difficulty about the jurisdiction of the Small Cause Court. The plaintiffs were three, they being Badrilal's widow and his two sons. It is common ground that Badrilal has left two daughters and he having died after the commencement of the Hindu Succession Act not only do the daughters get a share but also by virtue of the explanation to section 6 of that Act their share would be deemed to have been nationally ascertained and partitioned at the time of their father's death. At that stage the defence was that the suit was not competent because all the heirs of Badrilal had not joined; nor was there an administration or succession certificate enabling one or more of the heirs to sue on that basis. This was a point taken in the written statement and it should have been easy for the present plaintiffs to have impleaded the daughters at least as proforma defendants, if they did not want to join as plaintiffs. They had failed to do so and taken the stand that after Badrilal's death the eldest son Ramkishan (plaintiff No. 1) was the karta of the family. It is difficult to understand how at this stage Ramkishan suing as "karta" can represent the two daughters. Ultimately the Court allowed the suit holding that -

(3.) IN the Calcutta Ruling reported in Narayan Prasad Ruia v. Mutini kohain (AIR 1969 Cal. 69.) the effect of the non-representation in the suit by some of the co-sharers succeeding under the Mitakshara law after the commencement of the Hindu succession Act has been dealt with. It was a suit for the eviction of a tenant; but the general principles are applicable to all classes of cases. In that case one of the sons had died during pendency of the suit and there having been no substitution the suit was held to have abated not only in regard to the dead co-sharer but in respect of all of them.