LAXMINARAYAN RAMGOPAL Vs. BENIBHAI BHIKABHAI FIRM

JUDGEMENT

(1.) IN this application by one of the Defendants the question is whether, in the circumstances of the present case, this Defendant can be deemed adequately to represent the estate of the other, his father, who died during the pendency of the suit, notwithstanding, the non -impleading in time of his daughter, who is an heir under the Hindu Succession Act of 1956.

(2.) THE facts of the case are the following: The non -applicant brought a suit against the applicant and his father, Ram Gopal, for a sum of money as the price of goods delivered, and of money lent. Some preliminary objections were made, written statement was filed and issues were framed. Ram Gopal Defendant No. 1 died on 22 -1 -1957 after the coming into force of the Hindu Succession Act of 1956; the legal representatives being the present applicant (already Defendant No. 2) and the daughter Tribeni Bai. No application for impleading her was made in time, nor any, under 0. 22, Rule 9 for setting aside the abatement. An implication for action under 0. 22, Rule 2 was made on 23 -7 -57. As a result, out of his two representatives one was already on record, and the other was not substituted. The applicant (defendant)'contended that the suit had entirely abated and should be dismissed as such; the Plaintiff however, argued that for one thing it was a case of joint promise with joint and several liability of the two Defendants, and on the other, even without such joint and several liability, the Defendant already on record adequately represented the estate of the deceased Defendant for the purposes of the suit notwithstanding that the other legal representative has been omitted.

(3.) THIS is a suit in which the right to sue survives the deceased Defendant. Three questions arise out of which the first two have been answered with near unanimity by High Courts to the following effect firstly, if any legal representative of the deceased Defendant has already been imp leaded and is on the record for any purpose whatever, he need not again be brought in by substitution. Secondly, if any of the legal representatives is not already on the record, he has to be brought in by substitution, then the procedure in 0. 22, Rule 4 and Rule 9, as the case may be, should be adopted. But the third question is more complicated. When one Defendant dies, leaving two or more legal representatives, and only one of them has been impleaded, what is the legal consequence of this failure to implead the others ? There has been some difference of opinion between some of the High Courts in the past, but the recent tendency is towards uniformity.