KALLIAN RAI Vs. KASHI NATH

JUDGEMENT

(1.) One point of law has been argued with great vigour by Mr. Gopal Samp Pathak appearing on behalf of the defendant appellant, and in order to appreciate the point it is necessary to state a few facts which are now established beyond any controversy. On 24 November 1935 Kallian Rai, the defendant, borrowed Rs. 4000 from one Sahu Gopi Nath and executed a promissory note. The details of the promissory note were that Rs. 2041 were taken in cash and it was acknowledged that Rs. 1959 were due on old account. It has been found by the Court below upon unimpeachable evidence that at the time of the execution of the promissory note in suit a sum of Rs. 1959 was due from the defendant on account of previous loans and a sum of Rs. 2041 in cash was taken by the defendant from Sahu Gopi Nath. The execution of the promissory note and the passing of full consideration is, therefore, clearly established. It was also contended in the Court below that the defendant was an agriculturist at all material times and was, therefore, entitled to the benefits which the Agriculturists Relief Act conferred and the plaintiff Was liable to certain disabilities imposed by the Act in the shape of deprivation of costs and interest if accounts were not submitted as enjoined by the Act. The Court below has found that the defendant paid income-tax which was in excess of the local sate paid by the defendant and therefore he could not be deemed to be an agriculturist within the meaning of the Act. These facts are also clear on the admissions made by the defendant and on the assessments made by the income- tax authorities.

(2.) It could not, therefore, be contended before us that there was any defect in the passing of consideration or that the defendant was entitled as an agriculturist to certain benefits conferred by the Act. The question that was argued was that the plaintiff who was the sole plaintiff in the case, was not entitled to maintain the suit and there was such nonjoinder of parties as either necessitated the dismissal of the suit or a considerable reduction in the amount claimed. As we said before, the debt was borrowed from Sahu Gopi Nath. He died on 7 September 1938 leaving behind two widows, Mt. Brij Rani and Mt. Lachmi Devi, and a son Sahu Kashi Nath and a grandson Krishna Chandra. The Court below says : It is proved by the evidence of Sohan Lal that Sahu Gopi Nath and his son and grandson constituted joint Hindu family and that the plaintiff and his son still constitute joint Hindu family. Sahu Gopi Nath was karta of his family during his lifetime and since his death plaintiff has been the karta of the family. It is also proved by the evidence of Sohan Lal that the loans to the defendant were advanced by Sahu Gopi Nath out of the joint family funds.

(3.) These findings of fact have not been and could not be challenged by learned Counsel for the appellant, but it is said that by reason of Act 18 of 1937, as amended by Act 11 of 1938, certain rights were obtained by the two widows of Sahu Gopi Nath and the plaintiff could not maintain the present suit in the absence of the two widows and it was absolutely necessary that they should also have figured as plaintiffs. Our attention was drawn to Section 3, Sub-sections (2) and (3) of the Act, which provide as follows : (2) When a Hindu governed by any school of Hindu law other than the Dayabhag school or by customary law dies intestate having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3), have in the property the same interest as he himself had. (3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate, provided however that she shall have the same right of claiming partition as a male owner.