J. B. MEHTA, M. U. SHAH, J.

( 1 ) THIS appeal arises out of dismissal of a Civil Suit for compensation instituted under the Fatal Accidents Act 1855 (Act XIII of 1855 by a young widow of 25 years and her two infant sons for the benefit of themselves and of two minor daughters named Shanta and Kamla. The compensation prayed for in the suit which was filed in the Court of the Civil Judge Senior Division at Nadiad as Special Civil Suit No. 28 of 1957 was for loss occasioned by the death of one Bhoi Shana Kalyan to the said dependants of the deceased who was the husband of the plaintiff-widow and father of the four minor children. The death of said Bhoi Shana Kalyan is alleged to have been caused by wrongful acts of the original defendants who are respondents herein. Deceased Bhoi died at a young age of 25 years leaving behind him the plaintiff-widow and four minor children aged 9 2 8 and 4 respectively. The plaintiffs claim damages against the defendants as joint tortfeasors for their tortious acts which in this case amount to a crime.

( 2 ) THE plaint-allegation is that deceased Bhoi Shana Kalyan along with his wife Nanda the first plaintiff and her four minor children Asha Raoji Shanta and Kamla was residing in a hut situated in a field on the outskirts of village Anklav in taluka Borsad in Kaira District. On the night of August 11 1954 the whole family had supper between 9-00 and 10 P. M. and thereafter they went to sleep in the hut. Five defendants- respondents who bore enmity and malice against deceased formed an unlawful assembly and came to the hut of the deceased on that night with common object to cause murder of the deceased. The defendants were at that time armed with deadly weapons. The plaint-allegation further is that in prosecution of their common object to cause death of the deceased the respondents asked the deceased to go out of the hut and as the deceased did not move out the first respondent dealt a dharia blow on the deceased and with the aid of the other defendants dragged the deceased out of the hut. The deceased was then dealt dharia blows by the defendants in the neighbouring field of the second respondent Parshottam and murder of the deceased was committed by belabouring him cruelly and intentionally out of enmity and malice. The allegation is that all the defendants were parties to this crime and the death of the deceased was instantaneous. The allegation further is that the third defendant and some others beat the plaintiff-widow and caused her hurt.

( 3 ) ON a complaint being filed by the plaintiff-widow all the five defendants were arrested for alleged offences under secs. 147 148 149 302 and 323 Indian Penal Code and were charge-sheeted and ultimately committed to the Court of the Sessions Judge at Nadiad to stand their trial for the said offences. In Sessions Case No. 64 of 1954 the learned Additional Sessions Judge Nadiad to whom the case was transferred held the present defendants guilty of being members of an unlawful assembly the common object of which was to voluntarily cause hurt to deceased Shana and convicted the defendants under various sections of the Indian Penal Code and sentenced them to varying terms of imprison- ment. In appeal the High Court enhanced the sentence of the first and second defendants.

( 4 ) THE plaintiffs have claimed damages for loss to the plaintiffs and two other beneficiaries; as also for loss of expectation of life of the deceased and for physical and mental injury for which the plaintiffs as stated in the plaint were entitled to compensation. The damages are claimed at Rs. 20 0 and these include the provision for maintainence clothing marriage and educational expenses of the four minor children of the deceased and the first plaintiff.

( 5 ) ALL the five defendants have filed a joint written statement wherein they have denied the plaint allegations of the defendants having caused death of deceased Shana. They have stated that in the Sessions Case the charge of murd

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