BISHAN NARAIN Vs. OM PARKASH

JUDGEMENT

(1.) THIS is a plaintiff's appeal against the decree of Mr. Bhanot, Subordinate Judge 1st Class, delhi, dated the 13th February 1951 dismissing the plaintiff's suit on the ground that it had abated. The pedigree-table given at page 3 of the paper book and which is as follows will be helpful in understanding the case. MUL CHAND | sham Sunder Lal (plaintiff)____________________|________________ | | jai Narain (deft, No. 5) Bishan Narain ___________|____________ (deft. No. 6)| | | rameshwar Pershad Nunna, minor | minor (deft. No. 7) (deft. No. 8) | | _____________________|________ | | shri Narain Prem Narain, minor (deft. No. 9) minor deft. No. 10

(2.) SHAM Sundar Lal ana his descendants formed a joint Hindu family and they were running two businesses under the name and style of Radhe Mal-Mul Chand and Sham Sundar Lal Jai Narain which were joint Hindu family partnerships. There was another partnership in which Sham sundar La! plaintiff and his sons Jai Narain and Bishan Narain, defendants Nos. 5 and 6, had a half share. Shyam Lal since deceased and Chhote Lal defendant No. 1 and Om Parkash defendant No. 2 owned the other half shave. The name of this firm was Sham Sundar Lal Shyam lal and they were working in Delhi and other places, in October 1940 Shyam Lal son of Dhaum sen died and Chhote Lal who is his brother and executor of the will has been made defendant no. 1.

(3.) ON the 23rd July 1941 Sham Sundar Lal brought a suit for dissolution of partnership and rendition of accounts. The defendants in this case were the legal representatives of Shyam Lal, chhote Lal himself, Om parkash and his sons and also Jai Narain and Bishan Narain sons of sham Sundar Lal and the minor sons of Jai Narain and Bishan Narain. The proceedings in the case were delayed for about ten years because of the various proceedings which were taken by the parties. On 30-4-1950 Sham Sundar Lal plaintiff died. An application for his legal representatives being brought on the record was made by his widow Meh-tab Devi and his son bishan Narain under Order XXII Rule 3 and Order 1 Rule 10, Civil Procedure Code. This is at page 111 of the paper book. By their reply dated the 4th October 1950 this application was opposed and the plea taken by the defendants was that the applicants were not the legal representatives of the deceased and that the suit had abated. The learned Subordinate Judge held that the application had been made within time but the suit had abated because the applicants were not the legal representatives of Sham Sundar Lal for the purpose of the suit. He relied on a bench judgment of the Lahore High Court, 'dwaraka DAS v. KRISHNA KISHORE', 2 Lah 114, where it was held that surviving co-parceners in a joint Hindu family are not legal representatives. As the learned Judge held that the suit had abated, he dismissed the suit. The legal representatives have come up in appeal to this Court.