Inder Dev Dua, J. - (1.) The Punjab National Bank Ltd., plaintiff-respondent brought a suit for the recovery of RS. 62,889/2/5 against the joint Hindu family firm Messrs. Ghaki Mal Hukam Chand of Ludhiana through Radha Kishan Manager, Lala Radha Kishan, Lala Girdhari Lal, Lala Sham Lal, Lala Madan Lal and Lala Jagdish Lal are members of the said joint Hindu family and they have also been impleaded as defendants. Defendants No. 3 to 6 are sons of defendant No, 2 (Lala Radha Kishan since deceased). Originally the plaintiff was the Punjab National Bank Ltd., Ludhiana, but later on with the permission of the Court, the plaint was amended and the name of the Punjab National Bank Ltd., Delhi was substituted as plaintiff.
(2.) The suit was based on a cash credit agreement executed by the defendants at Kasur (now in West Pakistan) on the 18th December, 1945. It was stated in para 8 of the plaint that the defendants borrowed money in question as members of the joint Hindu family in the interest and for the benefit of the joint Hindu family and its business. All the defendants were sought to be made jointly and severally liable for the payment of the amount claimed. On the pleadings of the parties various issues were framed by the trial Court on 31st December, 1949. The Subordinate Judge, 1st Class, Ludhiana, decreed with costs the plaintiffs claim for Rs. 82,889/2/5 with interest at 3 1/2 per cent per annum with monthly rests from the date of the suit till realisation. Against this judgment and decree the judgment-debtors have preferred the present appeal. 2a. When the case came up for hearing on 12th August, 1958, learned counsel for the appellants raised a preliminary objection on the ground that Shri Radha Kishan appellant was dead and no legal representative of his had been brought on the record with the result that the appeal had abated. Mr. Daya Kishan Mahajan, learned counsel appearing for the appellants, expressed his ignorance about this matter and wanted time to obtain instructions from his client. I may here state that the appeal had been filed by Shri N. L. Wadhera Advocate and Shri Daya Kishan Mahajan was only recently engaged in the case. Mr Mahajan has since filed an application under Order 22 Rules 3 and 10, Order 41, Rule 20, Order 30 Rules 1 and 4 and Section 151 of the Civil procedure Code, for bringing on record the widow of Shri Radha Kishan deceased as appellant along with her sons.
(3.) Mr. S. L. Puri, opposes this petition on behalf of the respondent and urges that Radha Kishan died as far back as 7th June 1955 and his widow has not been brought on the record within the period of limitation prescribed for the purpose with the result that the appeal has abated in toto. In support of his arguments he places reliance on Section 3 of the Hindu Women's Right to Property Act 1937, and submits that the wife on the death of her husband gets in his estate the same interest as the husband himself had. This section reads as follows: "3 (1) When a Hindu governed by the Dayabhag school of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property his widow, or if there is more than one widow all his widows together, shall, subject to the provisions of Subsection (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son: Provided that the widow of a pre-deceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such pre-deceased son: Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son. (2) When a Hindu governed by any school or Hindu Law other than the Dayabhag School or by customary law dies having at the time of his death an interest in a Hindu joint family properly, 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. (4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto decends to a single heir or to any property to which the Indian Succession Act, 1925, applies." The counsel's submission is that under this Act a widow becomes an heir and therefore a legal representative of her deceased husband; on the death of Shri Radha Kishan therefore his widow should, if the appeal is not to abate, have been brought on the record for prosecuting the appeal. He goes a step further and submits that the decree obtained by the Bank being joint and several, it can be executed against all the legal representatives of the deceased and if even one of the legal representatives has been omitted from being brought on the record the decree as against such legal representative must become final with the result that if such Court were to allow the appeal there would come into existence two inconsistant decrees which would give rise to an anomalous situation. According to the counsel, in order to avoid contradictory and inconsistant decrees being passed, it should be held that the present appeal has abated. In support of this contention he has cited the following authorities: Awadh Bihari Prasad v. Jhaman Mathon, AIR 1953 Pal 324, Bishan Narain v. Om Parkash, AIR 1952 Punj 167, Bala-Krishna Patro v. Balu Subudhi, AIR 1949 Pat 184 and Province of East Punjab v. Ladhu Ram, (S) AIR 1955 Punj 225.;