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Kallian Rai Vs. Kashi Nath - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1943All188
AppellantKallian Rai
RespondentKashi Nath
Excerpt:
.....in question to the same extent as the present plaintiff and it was not open to the plaintiff to sue alone without impleading the widows as well. the act was intended to give better rights to women in respect of property--that is the preamble to the act--but there is no indication that the act intended to interfere with the established law relating to joint family. we have already said, and we may emphasise again, that by reason of the new legislation, to which reference has been made, there is not an automatic partition of the joint hindu family by reason of sub-section (2) to section 3, but the widow can claim partition like a male owner under sub-section (3), but so long as such partition has not been made the status of a joint hindu family continues......any controversy. on 24th november 1935 kallian rai, the defendant, borrowed rs. 4000 from one sahu gopi nath and executed a promissory note. the details of the promissory note were that rs. 2041 were taken in cash and it was acknowledged that rs. 1959 were due on old account. it has been found by the court below upon unimpeachable evidence that at the time of the execution of the promissory note in suit a sum of rs. 1959 was due from the defendant on account of previous loans and a sum of rs. 2041 in cash was taken by the defendant from sahu gopi nath. the execution of the promissory note and the passing of full consideration is, therefore, clearly established. it was also contended in the court below that the defendant was an agriculturist at all material times and was, therefore,.....
Judgment:

Bajpai, J.

1. One point of law has been argued with great vigour by Mr. Gopal Samp Pathak appearing on behalf of the defendant appellant, and in order to appreciate the point it is necessary to state a few facts which are now established beyond any controversy. On 24th November 1935 Kallian Rai, the defendant, borrowed Rs. 4000 from one Sahu Gopi Nath and executed a promissory note. The details of the promissory note were that Rs. 2041 were taken in cash and it was acknowledged that Rs. 1959 were due on old account. It has been found by the Court below upon unimpeachable evidence that at the time of the execution of the promissory note in suit a sum of Rs. 1959 was due from the defendant on account of previous loans and a sum of Rs. 2041 in cash was taken by the defendant from Sahu Gopi Nath. The execution of the promissory note and the passing of full consideration is, therefore, clearly established. It was also contended in the Court below that the defendant was an agriculturist at all material times and was, therefore, entitled to the benefits which the Agriculturists' Relief Act conferred and the plaintiff Was liable to certain disabilities imposed by the Act in the shape of deprivation of costs and interest if accounts were not submitted as enjoined by the Act. The Court below has found that the defendant paid income-tax which was in excess of the local sate paid by the defendant and therefore he could not be deemed to be an agriculturist within the meaning of the Act. These facts are also clear on the admissions made by the defendant and on the assessments made by the income-tax authorities.

2. It could not, therefore, be contended before us that there was any defect in the passing of consideration or that the defendant was entitled as an agriculturist to certain benefits conferred by the Act. The question that was argued was that the plaintiff who was the sole plaintiff in the case, was not entitled to maintain the suit and there was such nonjoinder of parties as either necessitated the dismissal of the suit or a considerable reduction in the amount claimed. As we said before, the debt was borrowed from Sahu Gopi Nath. He died on 7th September 1938 leaving behind two widows, Mt. Brij Rani and Mt. Lachmi Devi, and a son Sahu Kashi Nath and a grandson Krishna Chandra. The Court below says :

It is proved by the evidence of Sohan Lal that Sahu Gopi Nath and his son and grandson constituted joint Hindu family and that the plaintiff and his son still constitute joint Hindu family. Sahu Gopi Nath was karta of his family during his lifetime and since his death plaintiff has been the karta of the family. It is also proved by the evidence of Sohan Lal that the loans to the defendant were advanced by Sahu Gopi Nath out of the joint family funds.

3. These findings of fact have not been and could not be challenged by learned Counsel for the appellant, but it is said that by reason of Act 18 of 1937, as amended by Act 11 of 1938, certain rights were obtained by the two widows of Sahu Gopi Nath and the plaintiff could not maintain the present suit in the absence of the two widows and it was absolutely necessary that they should also have figured as plaintiffs. Our attention was drawn to Section 3, Sub-sections (2) and (3) of the Act, which provide as follows :

(2) When a Hindu governed by any school of Hindu law other than the Dayabhag school or by customary law dies intestate having at the time of his death an interest in a Hindu joint family property, 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 submission is that the two widows of Sahu Gopi Nath obtained a Hindu woman's estate in the property of Sahu. Gopi Nath and as the holders of this estate they were entitled in the promissory note in question to the same extent as the present plaintiff and it was not open to the plaintiff to sue alone without impleading the widows as well. We do not think that the new legislation has brought about any such result as is contended for by Mr. Pathak. The Act was intended to give better rights to women in respect of property--that is the Preamble to the Act--but there is no indication that the Act intended to interfere with the established law relating to joint family. Whatever inroads it may have made on the doctrine of survivorship, it does not effect a statutory severance or disruption of the joint family. The widow as a member of a joint Hindu family is to have the same interest in the joint property as the deceased husband had and this devolution does not otherwise affect the joint family status unless the widow availing herself of the provisions of Sub-section (3) claims a partition, As long as she does not do so, the status of a joint Hindu family continues and although she may not be a coparcener with the other sharers as was held in In re Hindu Women's Rights to Property Act in the sense that the principle of survivorship no longer subsists, it cannot be said that she is not a member of a joint Hindu family as long as there is no partition. She is there fore capable of being represented by the karta of the family.

5. The Act, as was pointed out in Mayne's Hindu Law, 10th Edn. at p. 722, is an ill-drawn Act and as pointed out by Mulla in his book on Hindu Law, 9th Edn. at p. 260 is not happily worded and is defective in many respects and likely to give rise to complicated questions in future which it is difficult to anticipate. And learned Counsel for the appellant has formulated certain difficulties, but it is not necessary for us to envisage those difficult questions that may arise on different sets of facts and attempt to answer them. We have got to decide the present case on the facts that have emerged from the evidence. The facts are that Sahu Gopi Nath was the karta of the family which consisted of himself, his son and his grandson and after his death the present plaintiff is the karta and the two widows have undoubtedly acquired certain rights. Their rights, however, are in no way inconsistent with the subsistence of the joint Hindu family and the representation of the joint Hindu family in business transactions and in suits by the karta. We think the meaning of Sub-section (2) to Section 3 of the Act is that the widow takes the same interest as the husband himself had, that is, the interest of an undivided member of a joint family in the joint family property, and this was so held in Saradambal v. S. Subbarama Ayyar ('42) 29 A.I.R. 1942 Mad. 212 at p. 213. Even under the Dayabhag law it has been held that if the members of the family choose to live as a joint Hindu family, they can be represented by managers in suits and in business transactions, see Bemola Dossee v. Mohun Dossee ('80) 5 Cal. 792 and Sukhadakanta v. Jogineekanta : AIR1934Cal73 . Under the Mitakshara law it has always been held that the manager represents the other members of the family: see Hori Lal v. Munman Kunwar ('12) 34 All. 549 and Achhaibar Singh v. Ram Sarup Sahu ('13) 35 All. 380. Although the facts were different, we might with advantage quote the observations of their Lordships of the Privy Council in Lingangowda v. Basangowda :

In the case of an Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he becomes of age, and then bring an action, or bring an action by his guardian before; and in each of these cases, therefore, the Court looks ... to see whether or not the leading member of the family has been acting either on behalf of minors in their interest, or if they are majors, with the assent of the majors.

6. In the present case, no objection has been advanced on behalf of the two widows that they have an interest in the subject-matter of the suit, an interest which cannot be protected by the plaintiff--and therefore the plaintiff is not entitled to sue alone. All that the defendant is interested in is that he should not have to pay the money twice over, and the promissory note having been executed on 24th November 1935 any claim by the widows is hopelessly barred by time now and the defendant runs no risk. We have already said, and we may emphasise again, that by reason of the new legislation, to which reference has been made, there is not an automatic partition of the joint Hindu family by reason of Sub-section (2) to Section 3, but the widow can claim partition like a male owner under Sub-section (3), but so long as such partition has not been made the status of a joint Hindu family continues. What exactly is meant by the widow obtaining a limited interest known as a Hindu woman's estate it is not necessary for us to expatiate upon. Difficult situations might arise by reason of different sets of circumstances but we need not anticipate them in the present case. It is sufficient for us to say that the frame of the suit on the circumstances of the present case is not irregular and the Court below was right in decreeing the plaintiff's suit on the various findings of fact at which it arrived after a discussion of the evidence. For the reasons given above, we dismiss this appeal with costs.


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