CHUNILAL HARILAL Vs. BAI MANI

JUDGEMENT

(1.) In my opinion the learned Judge below is wrong. Before the present Civil Procedure Code, we had no statutory definition of "legal representative" such as is now incorporated in it. That being obviously restrictive in cases arising out of the status of members of a joint Hindu family, Section 53 has been enacted, in my opinion, expressly to enforce one recognised rule of the Hindu law, namely, that members of a joint Hindu family may not escape the payment out of the joint family property of any debt incurred and decreed against their father before his death provided that such debt is not tainted with immorality. The only possible ground upon which the respondent s argument could have been put, as far as I can see, is that Section 53 is generally descriptive and in no sense limitative. If it could be read as defining every kind of property which might in any circumstances be liable for a decreed debt of a deceased Hindu father in the hands of his descendants or sons as joint family property, then doubtless the property with which we are concerned would fall within that definition. I have already explained that in my opinion the object of the section is limitative and is intended to give effect to a well-known rule of the Hindu law referable to a religious rather than legal sanction which might otherwise have been rendered nugatory by the definition of "legal representative." Upon that view it follows that on the facts before us the present decree could not be executed against the appellants.

(2.) The suit was brought by the present respondent against her kinsmen who were with the present appellants members of a joint Hindu family. They were the father and uncle, respectively, of the present appellants. The suit was for an injunction and the plaintiff must have known perfectly well the constitution of the family. If she had wished to make the present appellants liable, she ought to have impleaded them in that suit. I do not agree with the learned Judge below in his view that it was the duty of the appellants to get themselves upon the record, that they knew of the suit, and having failed to apply to be made defendants, they must be regarded as bound by the decree. I do not know indeed whether the learned Judge means to carry that portion of his reasoning quite that length, but he apparently relies upon an early case in which the name principle was affirmed and that principle in the facts of that case seems to me to have been referable exclusively to estoppel. I do not see that there is any case of estoppel here, or that the conclusion, pointed at, if not definitely stated, by the learned Judge below is sound in law. Now, the result of the suit was that the plaintiff obtained an injunction against the father and uncle of the present appellants. Both the father and uncle have since died. The plaintiff has mortgaged the property and is seeking execution in the interest of her mortgagee. The appellants resisted the execution on the ground that they were not parties to the suit in which the decree had been obtained; nor were they in any sense legal representatives or heirs of their deceased father and uncle within the meaning of Section 50 of the present Code. In my opinion both those contentions are valid and ought to have been upheld. On no construction of the words "legal representative" can members of a joint Hindu family be brought within the definition now contained in our Statute. Neither in my opinion were they parties, by a very strained construction, to the suit in which the decree was obtained. Nor do I think that the result, I have reached, occasions any hardship or injustice. If the respondent is obliged to bring a separate suit for injunction, she has only herself to thank; and, in any event, as soon as the house was sold as it might.be any day, presumably she would, if the purchaser challenged her rights, be driven to a fresh suit after every such transfer. Here, however, she might have avoided the present additional delay and expense by impleading all the members of the joint family at the time she elected to sue only two of them.

(3.) I think the Darkhast ought to have been struck off against the present appellants and no execution given her against them; and I would so order. Heaton, J.