MODI, J. - (1.) THIS second appeal by the plaintiffs Jawarimal and Pukraj is directed against the judgment and decree of the learned District Judge, Merta City, dated the nth November, 1954, in a suit for damages for breach of a contract.
(2.) THE appeal, in my opinion, must stand concluded by a preliminary objection as to its abatement, and, therefore only a few facts having a bearing on this question require to be stated. THE plaintiffs Jawarimal and Pukraj were both brothers, being sons of one Shivlal. THEy brought the present suit as owners and managers of a joint Hindu family which carried on business in the name of Jawarimal Pukhraj at Nagour. This allegation is contained in paragraph one of the plaint. THE suit was decreed by the trial court but dismissed by the lower appellate court. THEreupon the present appeal was filed by both Jawarimal and Pukhraj. Again they described themselves as owners and managers of the joint Hindu family firm Jawarimal Pukhraj while filing the appeal. Jawarimal admittedly died some time in November, 1958. It is also admitted that apart from the other appellant Pukhraj, Jawarimal was survived by his son Faquir Chand, his widow Mst. Chunnibai and two married daughters Msts. Mina and Basanti. As all these legal representatives other than Pukhraj had not been brought on the record in place of the deceased Jawarimal within the time prescribed by law, an application was moved on behalf of the defendants respondents that appeal be dismissed as having abated. This application is dated the 4th April, 1960. To this a reply was filed on behalf of the plaintiffs appellants on the 6th April, 1960, in which it was admitted that Jawarimal had died about a year and a half ago leaving behind the aforesaid heirs, but it was contended that it was not necessary to bring on record the deceased's widow and his son and the daughters because the present suit had been brought by Jawarimal and Pukhraj in their capacity as managers and owners of a joint Hindu family business, and the appeal had also been brought by both of them as owners and managers of the said business and that as the surviving appellant Pukhraj adequately and affectively represented the appellants' firm, no question of abatement could arise, and therefore, it was prayed that the objection as to abatement be dismissed. It is in these circumstances that the question arises for determination as to whether the present appeal has abated at all, or in its entirety and should, therefore, be dismissed as such. During the course of the arguments an application was further moved on behalf of Pukhraj appellant that Jawarimal's daughters Msts. Mina and Basanti had no right or interest in the joint family firm Jawarimal Pukhraj, and in support of this an affidavit of one of them viz. , Mst. Basanti, was also submitted swearing that she had no right in the property of her deceased father, and, as for Mst. Mina, it was submitted it was not possible to submit her affidavit as she was living far away in Assam. But an attempt was made through Mst. Basanti's affidavit to show that Mst. Mina had also no right in the property of her deceased father. It was further prayed that in any case if this Court should be pleased to hold that the aforesaid widow, son and the daughters of the deceased Jawarimal should have been substituted for the deceased as his legal representatives, their names might be permitted to be brought on record even now and the benefit of sec. 5 of the Limitation Act be allowed to them. This application delayed one and that behalf of the respondents and it is urged that the application was a very was opposed on no sufficient grounds had been made out for condoning the delay. Be that as it may, the first question for determination is whether the aforesaid heirs of the deceased Jawarimal and in particular his married daughters must have been brought on the record on his death in accordance with the provisions of O. 22 of the Code of Civil Procedure, or whether it was unnecessary to do so as the surviving appellant Pukhraj being the manager of the joint Hindu family firm fully represented the estate of the deceased. Now, I have no doubt whatever that on the death of the appellant Jawarimal, the right to sue did not survive in favour of the surviving appellant alone within the meaning of O. 22, R. 3 C. P. C. and consequently, ordinarily speaking, an application to bring the legal representatives of the deceased Jawarimal on record should have been made within the time allowed by law ; and then only the appeal could have been proceeded with ; and as such an application has not been made, the appeal is bound to abate so far as the deceased appellant is concerned, and it would be a further question to consider whether the appeal should so abate with respect to the deceased appellant only or must abate in its entirety. It has been contended by learned counsel, however, that although this would be the normal course of things, the present case is somewhat different and falls outside the general rule inasmuch as this litigation had been brought by the two brothers Jawarimal and Pukhraj as managers of a joint Hindu family business and that on the death of Jawarimal, the surviving manager Pukhraj could and would adequately represent the estate of the deceased. This, in my opinion, would have been a sufficient answer to the question of abatement ; but unfortunately a further difficulty arises in the way of the appellants as a result of the provisions of the Hindu Succession Act, 1956 (hereinafter called the Act of 1956), and it is strongly contended in this connection that although the surviving manager Pukhraj would represent the interest of the deceased Jowarimal's son and perhaps his widow, he could not possibly represent the interest of his married daughters who were heirs of the deceased under the Act of 1956, and these daughters could not possibly be said to be members of the joint Hindu family whose Karta the surviving manager Pukhraj was, and these would be members of the joint Hindu families of their respective husbands. This contention, to my mind, has force. According to Sec. 6 of the Act of 1956, when a male Hindu dies after the commencement of this Act, having at the time of death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act. There is, however, a proviso enacted to this section, and that is that if the deceased had left him surviving a female relative specified in class I of the Schedule (or a male relative specified in that class who claims through such female relative - with winch situation we are not concerned in the present case) the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Then there is an explanation to this section which provider that for the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Now a daughter is one of the heirs mentioned in class (i) of the Schedule and the daughter whether married or unmarried inherits simultaneously with a son or widow or other heirs specified in class (i) of the Schedule and each daughter takes a share which would be equal to that of a son and takes that share absolutely and not as woman's estate (See secs. 9 and 10 in this connection ). It follows, therefore, that the daughters of Jawarimal deceased (who had died after the commencement of this Act) were undoubtedly his heirs within the meaning of Sec. 6 of the Act of 1956. That being so, these daughters certainly appear to me to be the legal representatives of the deceased, among others, within the meaning of O. 22 R. 3 read with sec. 2 clause (ii) of the Code of Civil Procedure. The expression "legal representative" is defined in clause (ii) Sec. 2 of the Code and that definition is, to my mind, a very extensive one The first part of this clause lays down that a person who in law represents the estate of a deceased person would be his legal representative. There can be no question, therefore, that Jawarimal's daughters who are, among others, his heirs at law must be accepted as falling within the class of legal representatives recognized in this clause. It also seems to me that in order to invest a person with the status of a legal representative of the deceased, it is not necessary that he should be in actual possession of the assets of the deceased if he is entitled to the deceased's estate in law, and it should be sufficient if he is entitled to the possession thereof and happens to be a person upon whom the estate could devolve. In this connection, I would draw pointed attention to the qualifying phrase "who in law represents the estate of the deceased person", occurring in clause (ii) after the words "a person" and, therefore, it clearly seems to me that the possession of the assets of the deceased by any of his heirs can hardly be accepted to be a condition precedent to his being accepted as a legal representative of the deceased person. What, therefore, to my mind, impresses upon a person the character of the legal representatives of a deceased person within the meaning of the first part of clause (ii) of Sec. 2 is whether the estate of the deceased in whole or in part devolves on him or not as a matter of law. If it does, he must be accepted as a legal representative of the deceased within the meaning of the provision of the first part of clause (ii), and if it does not, he would not be a legal representative unless he falls within the other two parts of clause (ii) of Sec. 2. See in this connection Ranjitsingh Vs. Mst. Narmadi (i ). I may also add that the expression legal representatives" must, broadly speaking, where there are more legal representatives than one, such as we have the case here, be read to cover the various legal representatives in their entirety and not only one or some of them. See Roop Chand Vs. Mitha Lal (2 ). I do not think, therefore, that, in this state of the law, the contention raised by learned counsel for the respondents that as one of the daughters of the deceased Jawarimal claims no share in the property of the deceased or for that matter both of them may not so claim, they are not his legal representatives within the meaning of the legal provisions with which we are concerned, is without force; and normally speaking, all such legal representatives would, in my opinion, be required to be brought on the record in compliance with R. 3 of O. 22 C. P. C. within the time limited by law, and if that is not done, the suit is bound to abate so far as the deceased is concerned. The further question which still falls to be considered in this connection is whether the aforesaid objection is met by the position taken up by learned counsel for the appellants that the deceased had brought the suit as also the appeal, as a manager of the joint Hindu family business, along with his brother Pukhraj, the surviving appellant, who was also a manager even during the life-time of his deceased brother, and, in any case, on the latter's death, and so the said Pukraj, as manager of the family, fully represents the same, and it was not necessary to bring on record all the other members of the family including the daughters. Now, as I look at the matter, this argument may hold good so far as the deceased's son and perhaps his widow are concerned, as they would still be members of the joint Hindu family of which, at any rate, after the death of the deceased Jawarimal, Pukhraj the surviving appellant, would be the Karta or the manager. The thing which creates serious difficulty in the way of the appellant is whether Pukhraj can be held to represent the married daughters of the deceased. It is well established that a joint Hindu family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. A daughter, however [ceases to be a member of her father's family on marriage and becomes a member of her husband's family. See para 212 of Mulla's Principles of Hindu Law, 12th Edition. I am, therefore, unable to accept the position that the married daughters of Jawar-mal were members of the joint Hindu family of Jawarimal and Pukhraj, which could only consist of themselves and their lineal descendants and their wives and their unmarried daughters; and the daughters as soon as they were married ceased to be members of the joint Hindu family and became the members of the families of their respective husbands. I am prepared to accept that on Jawarimal's death, his younger brother Pukhraj may indeed represent the joint Hindu family left behind by him, as manager of that family. And in that view of the matter, it may not be necessary to bring his son or widow on the record, who would still continue to be members of the joint Hindu family, unless a separation took place in the meantime which is not the case here and the appeal can certainly be proceeded With in their absence, by the successor manager, or as I may put it, the other manager being already on the record. But can such a manager be held to represent those who are not member of the joint Hindu family and yet are some of the legal representatives of the deceased in law. Having given my most careful and anxious consideration to this question, i have arrived at the conclusion that the manager of a joint Hindu family can only represent persons who fall within the ambit of the family and not those who fall outside it, howsoever closely related such persons may be to the family. I would illustrate what I mean by a simple example. Suppose on the death of a brother, the other brother becomes the manager of their joint Hindu family. The daughters of the deceased brother are also among the persons upon whom the estate of the deceased has partly devolved in law. Can the successor manager enter into a compromise with third parties relating to the assets of the joint Hindu family and can he by such compromise bind the married daughters of the deceased, assuming all the time that they are not parties to the compromise themselves or through the manager of their families. To my mind, the correct answer to this question can only be in the negative, the reason being that the manager who enters into the compromise has no authority in law to represent them, they being not members of the joint Hindu family presided over by the said manager. If that is the correct position in law, as it seems to me it is, then the only possible conclusion to which I can come in a case like the present is that the daughters would hot be bound by anything which a manager of their father's family may do, and so as inevitable corollary it must follow that such a manager cannot be held to represent the interest of the married daughters of the family who have on their marriage become members of the families of their respective husbands. As the result of the above discussion, I hold that there has been a breach of mandatory provisions of O. 22 R. 3 C. P. C. in the present case read with R. 11 thereof, and, therefore, the appeal in so far as it relates to Jawarimal certainly abates. Three more questions arise for decision at the stage and I shall address myself to them now. The first is whether the conclusion at which I have come above is in any way affected by the provisions of O. 41 R. 4 C. P. C. That rule provides that where there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants any one of the plaintiffs or defendants may appeal from the whole decree and thereupon the appellate court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. This question came up for consideration before me in Padmaram Vs. Surja (3), and after an elaborate discussion of all the relevant considerations bearing upon the matter, I felt presua-ded to hold that the enabling provision contained in O. 41 R. 4 cannot be allowed to override the mandatory provisions of O. 22, RR. 3 & 4, and the application of the former provision must be limited to those cases where all the appellants are alive at the date of the decision by appellate court, cannot be invoked where one or more of them have died and their legal representatives have not been brought on record in accordance with the requirements of O. 22. I still adhere to the same view and think that O. 41 R. 4 cannot be invoked by the appellant in his favour to get over the hurdle of abatement. The next question is whether the appeal having abated against Jawarimal, the abatement would be limited to Jawarimal alone or the appeal in its entirety abates. As held by me in Padmaram's case (3) cited above, the one test which has been almost universally employed to determine this question is whether it is possible to decide the entire appeal in the absence of the legal representatives of the deceased appellant without producing two inconsistent decrees in the same litigation, as two such decrees militating against each other would virtually cancel themselves and reside in a futility. Now let us apply this test to the present case. Suppose this Court came to the conclusion on the merits that the plaintiffs' appeal should be accepted. This would result in a decree for the plaintiffs and against the defendants. But so far as the legal representatives of Jawarimal are concerned, the decree of the lower appellate court would still stand and that is a decree dismissing the plaintiff's suit and must operate in favour of the defendants. The result is that a hearing of the appeal on the merits may result in two inconsistent decrees and such a situation is not possible in law as I understand it. I, therefore, come to the conclusion that the abatement cannot be allowed to be limited to a case like the present to the deceased appellant alone but must result in the abatement of the appeal in its entirety. I hold accordingly. The only other question which remains to deal with is whether the prayer of the appellant Pukhraj that the legal representatives of the deceased Jawarimal including his two married daughters may be allowed to be brought on record even now deserve to be accepted, having regard to all the circumstances of the case. A few facts may be recalled in this connection. The objection as regards abatement was raised on behalf of the respondents on the 4th April, 1960 that Jawarimal appellant had died some time about Nov, 1958, and that as his legal representatives including his married daughters had not been brought on the record the entire appeal had abated. This application was resisted by the appellant Pukhraj and it was contended that he as manager fully and adequately represented the joint Hindu family consisting of himself and Jawarimal and, therefore, it was not necessary to bring the deceased's legal representatives on the record. It was only later during the course of arguments on the 22nd August, 1960, that a further application was filed for permission to implead the legal representatives of the deceased even at that stage, and a prayer was made that the delay in impleading them be condoned under sec. 5 of the Limitation Act. Now, the period of limitation prescribed for filing an application to bring the legal representatives of a deceased on record in such cases is 90 days from the death of the appellant under Art 176 of the Limitation Act, this period certainly expired at the end of Feb. 1959. It was then open to the appellant to make an application for setting aside the abatement and the period of limitation for such an application, according to Art. 171 of the Limitation Act, is 60 days from the date of the abatement. In other words, such an application could have been made by the end of April or beginning of May, 1959. The application for condoning the delay has, however, been made in Aug. , 1960. This brings me to O. 22 R. 9 (2) C. P. C. , which inter alia provides that the plaintiff may apply for setting aside the abatement, and the court must set it aside where it is proved that he was prevented by any sufficient cause from continuing the suit. ( the word 'suit' must ofcourse be understood to include the word 'appeal' by virtue of O. 22 R. 11 C. P. C.), and it is further provided that the provisions of sec. 5 of the Limitation Act shall apply to such an application. The question which thus arises for decision is whether the appellant was prevented by sufficient cause for not having taken timely steps to have the married daughter of Jawarimal brought on the record. No reason has been given in the application of the appellant dated the 22nd August, 1960, the delay deserves to be condoned except that it was mentioned that the appellant Pukhraj was the manager of the joint Hindu family Jawarimal Pukhraj and he effectively represented the interests of Jawarimal's legal representatives and, therefore, the application for substitution was not made earlier. This, in my opinion, is not an adequate reason at all. The Hindu Succession Act of 1956 had come into force on the 17th June, 1956. The deceased Jawarimal died some time in November, 1958, more than two years after the coming into force of the Act of 1956. The plaintiff appellant and his advisers should have known that the position of the daughters in the matter of inheritance had been radically changed and that their rights had been considerably enlarged as a result of the enactment of the Act of 1956, and if they failed to size up the correct situation for all this time, that in my opinion, is no reason for giving them the benefit of sec. 5 of the Limitation Act. I am, therefore, unable to give the benefit of sec. 5 to the appellant. The net result is that the preliminary objection must prevail and this appeal must be held to have abated in its entirety in absence of the married daughters of the appellant Jawarimal having been brought on record in accordance with law. The appeal is, therefore, dismissed, as having abated. As the appeal fails on a preliminary point, I would leave the parties to bear their own costs in this Court. Leave to appeal is refused. . ;