Rughoobeer Persad and Others vs Jutadhari Lal

Mitter, J.—The plaintiffs are the minor sons of one Jubhoo Sahoo. It appears that Jubhoo Lal Sahoo had brought a suit against the defendant No. 2, in this case, viz., Dukhit Sahoo, for recovery of possession of a house and for recovery of the rent due on account of that house. This suit was dismissed on the 9th of October 1874, and Jubhoo Lal was made liable for costs. Against that decree Jubhoo Lal preferred an appeal, and while that appeal was pending Jubhoo Lal died. The appeal was then prosecuted by Mohabeer Persad, who was the sole adult son of Jubhoo Lal, the other two sons, the plaintiffs in this case, being minors. The appeal was dismissed, and the appellant was made liable for costs. The decrees for costs passed by the Court of First Instance as well as by the Court of Appeal, having been the ground that they not having been represented either in the Appellate Court or in the execution proceedings, their shares were not affected by the sale what passed under it was the share of Mohabeer Persad alone, who prosecuted the appeal, and against whom alone the execution proceedings were taken. There is no doubt in this case that one of the decrees was against Jubhoo Lal himself: It is also the fact, thasold by the defendant No. 2 to. the defendant No. 1, Jutadhari Lal, the appellant before us, they were executed, and the property now in suit was sold in execution, and purchased by Jutadhari Lal himself. The present suit was brought to recover the share of the plaintiffs in the property sold, on t Jubhoo Lal had himself preferred the appeal which was subsequently dismissed; it having been prosecuted after his death by his adult son, Mohabeer Persad. The original suit related to ascertain property appertaining to the estate of Jubhoo Lal, and if the appeal had succeeded the plaintiffs would have shared in the benefit arising from that success. Under these circumstances, it is but just to hold that Mohabeer Persad prosecuted the appeal as the representative of the joint family, consisting of himself and his minor brother, who were all interested art the result of that litigation. This is precisely the view, which was taken under similar circumstances by their Lordships of the Privy Council in the well known case of Bissessur Lal Sahoo v. Luchmessur Sing LR 6 I.A 233. That being so, it seems to us clear that the view of the rights of the parties taken by the Court of First Instance is correct; what was sold was the property of Jubhoo Lal, who was the real debtor. That he was the real debtor so far as the decree of the first Court is concerned admits of no and, having regard to the circumstances of the case, it seems to us that, as to the costs of the Appellate Court, the real debtor was also Jubhoo Lal, that is to say, that his estate was liable for these costs. The lower Appellate Court, in deciding in favour of the plaintiffs, relied upon the Full Bench decision in Assamathem Nessa Bibee v. Roy Lutchmeeput Singh ILR 4 Cal. 142. That case seems to us to be distinguishable from the present in many ways, but the principal and most striking distinction that appears to us is this: There the original debtor was a Mahomedan, and the persons who were sued in that case after the death of the original debtor could not, as in a Hindu family, be said to have represented the particular heir whose name was left out. It is sufficient to refer to this distinction in order to show that the principle laid down in that case cannot apply to the present case.

On the whole, we are of opinion that in this case what was sold was the property of Jubhoo Lal.

We therefore set aside the decree of the lower Appellate Court and restore that of the Munsiff with costs.