R.N. Gurtu, J.
1. Three persons, Ram Sanehi, Bindhachal Pande and Bhirgu Pande, the last two being the sons of Ram Sanehi, filed a suit for malicious prosecution against the appellants.
2. The suit was contested by the appellants and it was dismissed by the trial court.
3. The allegation in the complaint which the appellants had filed was that the three plaintiffs had beaten Smt. Moti Kuer.
4. Smt. Moti Kuer was examined in the suit for malicious prosecution and she repeated what had been said in the complaint.
5. The trial court, held that the plaintiffs have failed to definitely and affirmatively prove that the complaint filed by Smt. Moti Kuer was false and without any reasonable and probable cause.
6. On appeal, the court below has held the plaintiffs' case to be proved and decreed the suit as against the appellants for Rs. 425/-. It has held that the plaintiffs had never beaten Smt. Moti Kuer and her husband, Ram Das Pande, as alleged and that the complaint filed against them was false to the complainant's knowledge. The order of the court below shows that the damages sustained by the plaintiffs were assessed jointly and not separately. The decree was a joint decree in favour of all the plaintiffs.
7. The appellants impleaded all the three plaintiffs in this appeal as respondents but Ram Sanehi Pandey respondent died during the pendency of the appeal leaving a widow and two sons, Bindhachal Pande and Bhirgu Pande the last two were already on the record of this appeal. It was directed by the court that a note be made against their names that they were also the heirs of Ram Sanehi Pande. The learned judge before whom the application for a note being made to the above effect came up, made an order that the fact that Ram Sanehi Pande had a widow who had not been brought on the record should be brought to the notice of the Bench hearing the appeal.
8. When this appeal came up before me a point was raised that the appeal had abated because the widow of Barn Sanehi Pande had not been impleaded. Inasmuch as Ram Sanehi Pande's widow is admittedly also an heir of Ram Sanehi Pande, she would be entitled to the fruits of the joint decree in favour of her husband, Bindhachal Pande and of Bhirgu Pande. In effect, therefore, she would become one of the joint decree-holders and would be entitled to execute the decree.
Now if the appeal succeeds and the decree of the court below is reversed the result will only be that Bindhachal Pande and Bhirgu Pande may be prevented from executing it, but the widow of Ram Sanehi Pande could still execute the decree of the court below. In this way, two conflicting decrees would come in existence, one dismissing the suit and the other allowing it. In my view, therefore, this appeal has abated. It is not possible to split up the widow's interest in the decree. The decree was a joint decree in favour of Ram Sanehi Pande, Bindhachal Pande and Bhirgu Pande and, as I have pointed out, the assessment of damage is on a joint basis and not a separate basis qua each of the plaintiffs.
9. Learned counsel urged that the two sons of Bam Sanehi Pande were already on the record as the heirs and legal representatives of Bam Sanehi Pande and that, therefore, Bam Sanehi Pande should be deemed to be fully represented. He cited the case of Jehrabi Sadullakhan v. Bismillabi Sadruddin, AIR 1924 Bom 420, where the Bombay High Court had gone to the length of saying that it is sufficient for the plaintiff in a suit, if a defendant dies, to put one only of the heirs on the record as his legal representative who will then represent the estate of the deceased for the purpose of the suit.
The Court opened that 'It would be impossible for a plaintiff to find out who are all the heirs of a deceased defendant and it is for those who claim to be heirs to come in if they wish to be represented in the suit. It seems to me that that is not the correct position at all in law. If the cause of action is one which would only survive if the entire body of representatives of a deceased opposite party were on the record, then there is no obligation on the other representatives who had not been caused to be impleaded, to get themselves impleaded so as to get a decree passed against themselves also. Of course, it is a different matter if the cause of action can still survive wholly as against the person who was brought on record or partially in the suit, then the plaintiff can get a partial relief as against the representatives so brought on the record.
10. Learned counsel drew my attention to the decision in Badha Raman v. Anant Singh AIR 1945 Oudh 196, and relied upon the passage which runs as follows : --
'Therefore when the manager of a joint family dies after the institution of a suit in respect of a joint family fund, his sons, who are the managing members of the family, are competent to represent other members, and if they are brought on the record within time the suit or the appeal does not abate by lapse of time. It is not necessary to bring the manager's widow on the record.'
When a decree is obtained by a Hindu father and his two sons in a suit for malicious prosecution on the ground that they had been wrongly prosecuted and a decree is passed, in my view, the rights created under the decree do not constitute a joint family right or fund. In order to constitute a joint family fund, there must either be some nucleous of joint family property which must go to the creation of the fund or the fund must be shown to have been agreed to be treated as a joint family property or it must, in fact, be a joint family fund.
The bringing of a decree into existence in a suit by a Hindu father and his sons against tort teasers in an action for malicious prosecution does not make the decree a joint family estate merely because the plaintiffs happen to be father and sons who belong to a joint family. In the malicious prosecution case, the prosecution was of three individuals and they set up a case in the present suit that they had suffered a joint loss, but that does not mean that they set up a case that they had been maliciously prosecuted as members of a joint family and even that, to my mind, would not make any difference. I can see no reason for importing the doctrines, which are more specifically applicable to a joint family property, into a suit of this nature.
The simple position, therefore, is that the widow is undoubtedly also an heir succeeding to what may be considered to be a joint and several right of her husband in the decree and she is not now represented. Therefore, the decree cannot now be reversed against her. To reverse the decree against others who are at the moment entitled to certain rights under the decree would undoubtedly be tantamount to bringing two conflicting decrees into existence. I am supported in my view by what flows from the decision in Arjun Singh v. Matukdhari Singh, reported in : AIR1955Pat391 , and the cases mentioned in that ruling.
11. Accordingly, I declare this appeal to have abated.
12. Learned counsel asks for leave to file aspecial appeal. I am not quite sure whether suchleave can be granted against an order of abatement, but even if it can, I refuse leave in thiscase.