The death of one of the defendants in a suit where the liability is joint and indivisible, without bringing his legal representatives on record, results in the abatement of the suit as against all the defendants.

( 1 ) THIS suit was filed by Devi Dayal (who has since been substituted by his legal representatives) for the recovery of Rs. 2,50,000. 00. It was alleged in the suit that one Ch. Ram Narain Bishnoi took from the plaintiff different loans totalling Rupees 1,43,000. 00 and executed pronotes in favour of the plaintiff on the said dates. It was also stated in para 4 of the plaint that about a year back Ch. Ram Narain died and the defendants are his sons and legal representatives of his estate and are bound to pay the just debts of their father. A decree for Rupees 2,50,000. 00 comprising of Rs. 1,43,000. 00 as principal and Rs. 1,07,000. 00 as interest was therefore prayed. Suit was filed on 18-1-1965. In the suit when the evidence was being taken on commission on 6-2-1971 the advocate for the defendants made a statement that Banwari Lal, defendant No. 2 had died by failure of heart on 31-1-1971. On this the advocate for the plaintiff stated that the case could not proceed in the absence of the deceased defendant and the case was, therefore, adjourned for further proceedings. On this the Commissioner adjourned the matter and returned the proceedings to the court for further necessary action.

( 2 ) I. A. 492/72 dated 20-3-1972 has been filed in which it is stated that as three defendants had been sued jointly as representing the estate of their father, Ch. Ram Narain, and the plaintiffs having taken no steps to bring the legal representative of deceased, defendant No. 2, on record the suit of the plaintiffs has abated altogether as the right to sue did not survive against the other two defendants as their liability if any was joint and indivisible.

( 3 ) A reply has been filed on behalf of plaintiffs. The factum of death of defendant No. 2 is not denied. The liability of the sons is stated to be not personal and is only confined to the share of each son enjoyed by him of the ancestral property. The liability is, therefore, stated to be joint and several and the right to sue survives against the other two defendants. It is denied, therefore, that there is any abatement.

( 4 ) THE position thus boils down. to this that the suit was filed against three defendants, each representing the estate of Ch. Ram Narain who was alleged to have taken the loan from the plaintiff. Admittedly defendant No. 2 died on 31-1-1971 but no legal representative of the deceased has been brought on record. The question that arises in these circumstances is whether the suit as such has abated partly or wholly or not at all.

( 5 ) THE contention of Mr. Gupta, learned counsel for defendants Nos. 1 and 3 is that the liability of all the three defendants as heirs of Ch. Ram Narain was joint and indivisible and as defendant No. 2 has died and his legal representatives have not been brought on record the suit abates as a whole. Mr. Sood learned counsel for the plaintiffs, however, maintains that the liability of defendants 1 to 3 was joint and several and, therefore, it was open to him even in the first instance to file a suit against any one of the sons of Ram Narain without impleading other sons and, therefore, the fact that one of the defendants has died during the pendency of the suit and his legal representatives have not been brought on record is of no consequence and the suit can proceed in their absence.

( 6 ) NOW as regards the liability of an heir of a deceased Hindu to pay the debts of the deceased, it is settled law that he is liable only to the extent of the assets inherited by him from the deceased. The heir is not personally liable to pay the debts of the deceased vide para 288, Hindu Law by Mulla, 13th Edition. Also under the Hindu Law, according to the Mitakshara school two or more persons inheriting jointly take as tenants-in-common vide para 31 Hindu Law by Mulla.

( 7 ) THE main question, therefore, that arises is whether it was open to the plaintiffs to have filed the suit against any one of the sons of the deceased, Ch. Ram Nara