JAI KALI Vs. BALDEO SINGH

JUDGEMENT

(1.) THIS application arises under the following circumstances. A suit was brought by one Audhesh Chandar to enforce by specific performance an alleged contract to sell certain immovable property. Whilst the suit was pending the sole plaintiff died. His widow then applied to be brought on to the record in his place. Her application was opposed by some one or more of the defendants, who alleged that her deceased husband was a member of a joint Hindu family and that therefore his wife had no right to continue the suit. THIS contention met with the approval of the court below, which rejected the application of Musammat Jai Kali to be brought on to the record in the place of her deceased husband, and (we are informed) on a subsequent date declared that the suit had abated. We think the order rejecting the application of Musammat Jai Kali was incorrect. It would of course follow that any subsequent order declaring that the suit had abated was also incorrect. The suit by Audhesh Chandar was a suit upon an alleged contract to sell to him certain immovable property. THIS was a contract personal to himself, and, even if he happened to be a member of a joint Hindu family, his wife is the person who would represent him in the suit to enforce the alleged contract. The argument put forward by the other side is that a question arose as to who was the "legal representative" of the deceased plaintiff, and that according to the provisions of Order XXII, Rule 5, this question is to be determined by the court in which the suit is pending. In our opinion on the admitted facts of the present case no question arose as to whether any person other than his widow represented the deceased plaintiff. It is quite clear that the surviving members of a joint Hindu family could not in a case like the present represent the deceased plaintiff. It is no doubt true that where one member of a joint Hindu family dies all his rights cease and the property from thenceforward is held by the surviving members; but this proposition of law is in no way inconsistent with the other proposition which we have laid down, namely, that a deceased Hindu s wife (in the absence of male heirs) represents him in a suit for specific performance of a personal contract made with him. The court, therefore, refused to exercise a jurisdiction which it had, namely, to bring the applicant on to the record. We allow the application, set aside both orders of the court below, and direct that court to bring the name of the applicant on to the record in the place of her deceased husband and then to proceed to hear and determine the suit according to law. The applicant will have his costs in this Court. Other costs will follow the result.