Modi, J. - (1.) THIS is a plaintiffs' second appeal in a suit for money.
(2.) THE defendants respondents are the sons of one Chunnilal who had dealings with the plaintiffs. Chunnilal went into accounts with the plaintiffs on 17 -4 -1950, struck a balance entry and executed a 'Khata' in their favour. As the defendants failed to pay the money due on the Khata, the plaintiffs brought this suit against Misrimal and Pukhraj, sons of Chunnilal, in the first instance. These defendants resisted the suit on the plea 'inter alia' that there were two other sons of Chunnilal namely, Parasmal and Heerachand who were necessary parties to the suit, and that it was not maintainable in their absence. Thereupon the plaintiffs amended their plaint and impleaded the other two sons of Chunnilal as defendants also. Defendant No. 4 Heerachand contended that he was a minor whereupon the plaintiffs withdrew their suit against him and removed his name from the plaint. The remaining defendants again contended that the suit as framed was bad for want of necessary parties. The trial court upheld this objection and dismissed the suit. On appeal, the learned Civil Judge affirmed the decision of the trial court by his judgment & decree dated 29 -3 -52 from which the present appeal has been filed. The sole question for determination in this appeal, in the circumstances narrated above, is whether the suit as brought by the plaintiffs was not maintainable in the absence of one of the sons of the deceased Chunnilal. The contention of the defendants respondents has throughout been and still is that the liability of the sons of Chunnilal as his heirs was a joint and indivisible one, and all his sons were necessary parties to the suit brought for the recovery of a debt due from the deceased, and the suit must fail in the absence of any one of them. Reliance was placed in support of this view both in the court below and in this Court on - 'Sahed Shaik v. Krishna Mohan',, AIR 1917 Cal 829 (A). That was a suit brought by a landlord against the heirs of a deceased tenant. The trial court dismissed the suit on more grounds than one; but on appeal the Subordinate Judge decreed it against one of the defendants who was the eldest son of the deceased tenant. On second appeal, it was held by the Calcutta High Court that the defendants must be taken as one body of registered tenants holding one single holding, and, therefore, they were all necessary parties to the suit. It was held further that S. 43, Contract Act could not have any application, as there was no case of a joint contract but it was one where parties had become jointly interested by operation of law in a contract made by a single person. It is to be observed, however, that this case is one of doubtful authority, as the majority of the Judges of the same High Court who composed the full bench in - 'Kailash Chandra Mitra v. B.K. Chakravarti', : AIR 1925 Cal 1056 (FB) (B) did not adopt the view which was taken in the earlier case. B.B. Ghose J. who delivered the judgment of the majority held that the argument that the tenancy as well as the liability for payment or rent had been inherited by the representatives of the deceased tenant as one body and that that body as a whole was liable for the rent, was grounded on a misconception. The learned Judge proceeded to observe that the heirs did not take the tenancy as an entire body forming as it were a partnership or a corporation but as tenants in common where each of them was entitled to possession of every part of the estate and as each had estate in the entire land, there was no reason why he should not be held liable for the entire rent. Mukherji J. who gave a dissenting opinion was also of the same view so far as this aspect of the matter was concerned; but he took a different view on the question of the frame of the suit, and expressed the opinion that the other heirs of the deceased tenant were necessary parties to determine whether the liability which was prima facie joint was also joint and several and for protecting the defendant from being made to pay what may have already been paid by others, and so on and so forth. The learned Judge was further of the view, however, that the suit could not be dismissed on that ground forthwith and that the court must proceed under O. 1 R. 10, Civil P.C. to make an, order for the addition of the parties as were not on the record, and that it was only in the event of the necessary amendments not being made that the suit was liable to be dismissed. In the event of the necessary amendments being made however, the learned fudge was of the opinion that the suit would not fail because the plaintiff might have lost his remedy against the added defendants. With great respect to the learned Judge, if the suit cannot fail in such circumstances, there can be little meaning in holding that the liability of all heirs of the deceased was joint and indivisible, and it would be, in my humble opinion, nearer the mark to say that all the heirs of the deceased are not necessary parties to a suit brought against some of them although they may be very proper parties to it.
(3.) ANOTHER case relied upon by learned counsel for the respondents is - 'Hazara Singh v. Naranjan Singh', : AIR 1929 Lah 783 (C). In that case & mortgagee filed a suit for recovery of mortgage money against four out of five sons of the deceased mortgagor for his 2/3rds share of the entire mortgage (the l/3rd share having already been redeemed). The trial court decreed the plaintiff's suit for 4/5ths of 2/3rds share of the mortgage money, and this decree was upheld by the High Court. It is true that in this case the plaintiff was not awarded a decree for the amount of the mortgage money debitable to the 5th -son, but at the same time the plaintiff's suit was not thrown out on the ground that that son was not made a party to the suit. This authority, in my opinion, affords no help to the respondents and seems to me to go against them.;