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Jai Kali Vs. Baldeo Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported inAIR1919All189; (1919)ILR61All515
AppellantJai Kali
RespondentBaldeo Singh and ors.
Excerpt:
suit for specific performance of an agreement to sell in favour of a member of joint hindu family personally - death of plaintiff--application by widow to be substituted for her deceased husband--legal representative. - - .....by some one or more of the defendants who alleged that her deceased husband was a member of a joint hindu family and that, therefore, his wife had no right to continue the suit, this contention met with the approval of the court below, which rejected the application of musammat jai kali to be brought on to the record in the place of her deceased husband, and (we are informed) on a sub-sequent date declared that the suit had abated. we think the order rejecting the application of mtuammat jai kali was incorrect. it would, of course, follow that any subsequent order declaring that the suit had abated was also incorrect. the suit by audhesh chunder was a suit upon an alleged contract to sell to him certain immoveable property. this was a contract personal to himself and even if he.....
Judgment:
1. This application arises under the following circumstances. A suit was brought by one Audheah Chunder to enforce, by specific performance, an alleged contract to sell certain immoveable property. Whilst the suit was pegging the sole plaintiff died. His widow then applied to be brought on the record in his place. Her application was opposed by some one or more of the defendants who alleged that her deceased husband was a member of a joint Hindu family and that, therefore, his wife had no right to continue the suit, This contention met with the approval of the Court below, which rejected the application of Musammat Jai Kali to be brought on to the record in the place of her deceased husband, and (we are informed) on a sub-sequent date declared that the suit had abated. We think the order rejecting the application of Mtuammat Jai Kali was incorrect. It would, of course, follow that any subsequent order declaring that the suit had abated was also incorrect. The suit by Audhesh Chunder was a suit upon an alleged contract to sell to him certain immoveable property. This was a contract personal to himself and even if he happened to be a member of a joint Hindu family, his wife is the person who would represent him in the suit to enforce the alleged contract. The agreement put forward by the other side is that a question arose as to who was the "legal representative' of the deceased plaintiff, and that according to the provisions of Order XXII, Rule 5, this question is to be determined by the Court in which the suit is pending. In our opinion, on the admitted facts of the present case, no question arose as to whether any person other than his widow represented the deceased plaintiff. It is quite clear that the surviving members of a joint Hindu family could not, in, a case like the present, represent the deceased plaintiff. It is no doubt true that where one member of a joint Hindu family dies, all his rights cease and the property from thenceforward is held by the surviving members; but this proposition of law is in no way inconsistent with the other proposition which we here lay down, namely that a deceased Hindu's wife (in the absence of male heirs) represents him in a suit for specific performance of a personal contract made with him The Court, there fore, refused to exercise a jurisdiction which it had, namely, to bring the applicant, on to the record. We allow the application, set aside both orders of the Court below and direct that Court to bring the name of the applicant on to the record in the place of her deceased husband and then to proceed to hear and determine the suit according to law. The applicant will have his costs in this Court including fees on the higher scale. Other costs will follow the result.

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