JAINARAIN SINGH Vs. DINA SINGH

JUDGEMENT

(1.) This is an application by the plaintiff in a Small Cause Court suit. The suit was for recovery of a sum of money said to have been advanced as a loan to one Kali Singh. Kali Singh is dead and the defendants are his brother and nephew. The defendants did not appear and contest the suit. The learned Judge in the Court of Small Causes dismissed the suit on the ground that it had not been proved that the debt had been incurred by Kali Singh for the benefit of the joint family and as karta and head of the family. The learned Judge however himself observes that the defendants have been sought to be made liable as they were said to be in possession of the assets of the deceased.

(2.) He however held that a member of a joint Hindu family cannot have assets which can be held by the other members of the family. He has accordingly dismissed the suit. He has no doubt stated in the beginning of his judgment that the claim had not been proved; but he does not there by mean that the loan had not been incurred. In fact he proceeds on the assumption that the loan had been advanced and that Kali Singh had incurred the debt. The ground however for the dismissal of the suit does not appear to be sound. It cannot be laid down as a general proposition that a member of a joint Hindu family cannot leave assets which loan be inherited by his heirs.

(3.) The suit was instituted on the allegation that the defendants were the heirs of the deceased Kali Singh and that they were sought to be made liable only to the extent of the assets of the deceased that may be found in their possession. If no assets can be found it is clear that nothing can be realized from them, but that is no ground for dismissing the suit. Having regard to the fact that the debt has been found to have been actually incurred and there being no other objection to the maintainability of the suit, the decree of the Small Cause Court Judge must be set aside and the suit decreed with costs in the Court below as claimed, making the defendants liable only to the extent of the assets that they may have inherited from the deceased Kali Singh. There will be no order as to costs in this Court as no one appears on the other side.