Y. K. Sabharwal, J.

( 1 ) PLAINTIFF bank has filed this suit for the recovery of Rs. 10,25,801-102. Defendant I firm, it is claimed, in the plaint, was the sole proprietary concern of Major R. S. Chadha, since deceased. Major Chadha who died before institution of the suit according to the plaintiff, bad taken from it certain loans. Defendant 2 (a) is the daughter of Major R. S. Chadha: Defendant 2 (b) is his mother: Defendant 3 is his father and Defendant 4 is his brother. Defendants 2 (a) and (b) have been impleaded as surviving Class I legal heirs of deceased Major R. S. Chadha. Defendants 3 and 4 have been impleaded by the plaintiff alleging that the said defendants are intermeddling with the estate and are functioning as de facto administrators of the estate of late Major R. S. Chadha who expired on 23-12-1982 and that the plaintiff understands that they are in possession of his estate. Paras 3 and 4 of the plaint read as under:-

PARA 3. "the defendant I, Indian Apparel Industries was a sole proprietary concern of Maj. R. S. Chadha since deceased. The First Defendant has its offices at 48, Vasant Lok, Vasant Vihar, New Delhi-110057 as also at 3/16, Shanti Niketan, New Delhi- 110021. It also maintains a godown-cum-office at 401. Munirka New Delhi. The proprietor of the firm. Major Rajeshwar Singh Chadha expired recently (23rd Dec. , 1982 ). The said Major R. s. Chadha was a divorce and being a Sikh governed by the Hindu Succession Act his two surviving Class I legal heirs entitled to the 18 properties arc his minor daughter Defendant No. 2 (a) and bit mother Defendant 2 (b) and failing them his father. Dr. M. S. Chadha and his brother, Mr. R. S. Chadha being Defendants 3 and 4 hereto both residents of 3/16, Shanti Niketan, New Delhi- 110021.-Miss. Jagriti Chadha is a minor. She is being sued through her grandfather Defendant No. 3. He is her natural guardian in the absence of her mother (a divorcee) Defendant No. 3 has no adverse interest to that of the minor Defendant 2 (a ).

PARA 4. The plaintiffs understands that the local guardian of the minor daughter of the deceased Maj. R,s. Chadha, is Dr. M. S. Chadha Defendant 3 but she has since migrated to Australia and the property and assets of the deceased Maj Chadha are in the active management and control of Dr. MS. Chadha, Defendant 3 herein and Defendant No 4 herein, who are intermeddling with the estate and are functioning as de facto administrators of the estate of late Maj. R. S. Chadha who expired on the 23rd Dec. , 1982 and the plaintiff understands that they are in possession of his estate. The Defendants 3 and 4 are being sued to recover the properties and dues of the plaintiff due and owing from Maj R. S. Chadha to the plaintiff. "

( 2 ) DEFENDANTS 2 (b), 3 and 4 are the applicants and seek dismissal of the suit or striking out their names from the suit.

( 3 ) FOR deciding this application the averments made in the plaint are to be taken as correct in its manner and form. It may be noticed that although in some paragraphs of the plaint there is some ambiguity but learned counsel for the plaintiff conceded during course of arguments that defendants are being sued only in their capacity as legal representatives of Maj. Chadha and not in their individual capacity and their liability would be only to the extent of the estate inherited by the said defendants or in their capacity as intermeddlers.

( 4 ) LEARNED counsel for the applicants has submitted that plaint does not disclose any cause of action against the said defendants even on the averments made in the plaint. He submits that assuming that Major R. S. Chadha was governed by Hindu Succession Act, without prejudice to the contentions of the applicants that he was a Christian at the time of his death, lather (Defendant 3) and brother (Defendant 4) cannot be impleaded in presence of Class I heirs. According to the plaint Defendants 2 (a) and (b) are Class 1 heirs.

( 5 ) THE case set up against Defendants 3 and 4 in th

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