Ramaswami, J.

1. This is an application for leave to appeal to the Supreme Court on behalf of the plaintiff under rticle 133 of the Constitution.

2. The petitioner and his brother, since deceased, brought Title Suit No. 24/15 of 1943/1945 in the Court of the 1st Subordinate Judge, Patna, for a declaration that an ex parte decree dated 19-11-1938, granted by the 2nd Subordinate Judge of Patna in Title Mortgage Suit No. 14 of 1938 and the sale in execution of that decree were fraudulent and collusive and not binding upon the plaintiffs nor on the share of the joint family properties to which the plaintiffs were entitled. There was also a prayer for recovery of possession of the properties and for ascertainment of mesne profits. A further relief was also claimed for a permanent injunction against the opposite party restraining them from taking delivery of possession over the properties in suit. The suit was contested by the opposite party and on 22-5-1946, the suit was dismissed by the Additional Subordinate Judge, Patna. The plaintiff preferred First Appeal No. 374 of 194S in the High Court against the judgment and decree of the Additional Subordinate Judge, Patna.

When the appeal was heard in the High Court it was argued on behalf of the opposite party at the outset that the whole appeal had abated in view of the circumstance that respondent 1 Raghunandan Prasad and respondent 7 Sohrai Mahton were dead and no substitution had been made in their place on behalf of the appellants. It was alleged that the heirs of Sohrai Mahton were respondents 1 to 7 and also Nawalkishore Prasad, who was a coparcener of the joint family and who was not brought on the record of the case. As regards Raghunandan Prasad, it was said that his widow Mt. Parbati Devi was not substituted. This objection was upheld by a Division Bench, and the First Appeal was dismissed on the ground that the whole appeal had abated. It was held that the appeal had abated not only against respondents 1 and 7 but the entire appeal had abated since the suit was for setting aside a mortgage decree obtained by the defendants first party and for setting aside the sale in execution in course of which defendants first and second parties had purchased the mortgaged properties and obtained possession thereof.

3. In support of this application Mr. Janak Kishore submitted, in the first place, that it was not incumbent on the appellants to substitute the widow, Mt. Parbati Devi, in place of Raghunandan Prasad, and the High Court was erroneous in holding that the appeal had abated, either against Raghunandan Prasad or against other respondents arrayed in the appeal. The argument of learned counsel is based upon -- Balgajan v. Sughu Rai, : AIR 1948 Pat 288 [LQ/PatHC/1947/31] (A), in which it was held by Shearer, J. that there was no abatment of the appeal if the legal representatives of the deceased party to the appeal had concealed certain facts from the Court. In that case, during the pendency of the appeal one of the respondents died leaving behind him a widow & sons & no steps were taken to bring them on the record. The appeal was disposed of in the presence of the respondents who were allowed to prosecute the suit as the representatives of the deceased and the legal heirs did not intimate to the Court that they ought to be brought on the record. In this state of facts it was held by the High Court that there was no abatement of the appeal. The material facts of the present case are manifestly different and Mr. Janak Kishore is not certainly right in saying that the principle laid down in -- (A) is applicable to the present case. It was contended by learned counsel that the other members of the joint family were already on the record of the case and the interest of the widow was in fact represented by the karta of the joint family, and no question of abatement would, therefore, arise.

This argument cannot possibly be accepted in view of the decision of this Court in -- Prahlad Das v. Dasrathi Satpathi, : AIR 1940 Pat 117 [LQ/PatHC/1939/127] (B) in which Khwaja Mohamad Noor, J. observed that "when sons and grandsons are parties to a suit, the question of their father representing them cannot possibly arise". The reason is that the suit was not brought by the petitioner against the karta of the joint family, taut the suit had been brought against the individual members of the Joint family and not in a representative capacity. It is, therefore, not open to learned counsel for the petitioner to argue that the interest of the widow of Raghunandan Prasad was represented by the other members of the joint family on the record of the case. This view is supported by--Deonarain v. Bibi Khatoon, A. I. Rule 1949 Patna 401 (C) in which a decree was passed against A, his five sons and three grandsons, but in the execution proceeding two of the sons and the grandsons were not made parties. It was held that the father could not represent the sons and grandsons who were not made parties to the execution proceeding and they were not under the pious obligation to pay off the fathers debt, and therefore their share in the properties sold in execution of the decree did not pass.

4. The second branch of the argument of learned Counsel is that the interest of a Hindu widow under the Hindu Womens Rights to Property Act, 1937, was not the interest of a coparcener, that on the death of her husband the widow does not become a member of the coparcenary, and therefore the widow was not a "legal representative" within the meaning of Order 22, Rule 3 read with Section 2 Sub-section (11), Civil P. C. Section 2 Sub-section (11) defines a legal representative to be

"a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased.."

In support of his contention learned Counsel relied upon -- Radha Raman v. Anant Singh AIR 1945 Oudh 196 (D), in which it was held that when the manager of a joint family dies after the institution of a suit in respect of a joint family fund, his sons, who were the managing members of the family, were competent to represent other members, and if they were brought on the record within time, the suit or the appeal did not abate by lapse of time, and it was not necessary to bring the managers widow on the record. The ratio of this case is of no assistance to the petitioner, for the suit was brought by the manager in a representative capacity and the sons or even one of the sons could effectively prosecute the suit on behalf of the joint family after the managers death.

The facts of the present case are manifestly different for the suit was not brought against the karta in a representative capacity but against the individual coparceners who had obtained the previous mortgage decree. The present case is governed in fact by a decision in -- F. A. No. 124 of 1926 D7- 29-1-1952 (Pat) (E), by a Bench consisting of the Chief Justice and Reuben, J. (as he then was) holding that it was necessary to substitute the widows of the plaintiffs who died during the pendency of the appeal in this Court, and in the absence of substitution being effected, the whole appeal abated. In that case the plaintiffs had obtained a mortgage decree for sale of the mortgaged properties and the defendants had preferred an appeal against that decree in the High Court. Now, under Section 3(2), Hindu Womens Right to Property Act, 1937, a Hindu widow acquires on the death of her husband, who is a coparcener of the joint family, the same interest as the coparcener had, and under Section 3(3) of the Act, any interest devolving on a Hindu widow under the provisions of this section would be the limited interest known as a Hindu womans estate, provided however that she shall have the same right of claiming partition as a male owner. In view of the provisions of the statute it is difficult to accept the contention of learned counsel that a Hindu widow is not a legal representative of the deceased coparcener within the meaning of Section 2(11) read with Order 22, Rule 4, Civil P. C.

Reference has also been made on opposite partys behalf to -- Siveshwar Prasad v. Har Narain, : AIR 1945 Pat 116 [LQ/PatHC/1944/59] (F), in which it was held by this Court that interest acquired by a widow under the Hindu Womens Rights to Property Act, 1937, is not as a survivor but as an heir of her husband. The interest, therefore, is an asset of her husband in her hands and can be proceeded against by a creditor even though it may be an undivided, interest in a joint family property. For all these reasons I am inclined to hold that there is no substantial question of law involved in this case, and the petitioner is not entitled to a certificate under Article 133 of the Constitution.

5. I have proceeded so far on the assumption that the valuation of the property involved in the suit is over Rs. 20,000/- as the petitioner has claimed. It appears that the suit was valued at RS. 12,600/- but it is the case of the petitioner in para. 22 of the affidavit that the real value of the property was more than Rs. 20,000/- at the time of the institution of the suit and at the date on which the final order was passed by the High Court, a counter-affidavit has been filed on behalf of the opposite party challenging the valuation given on behalf of the petitioner. It is stated in para. 4 of the counter-affidavit that the value of the share of the plaintiff was not even to the extent of Rs. 10,000/- at the time of the filing of the suit, and the value of the property could not be Rs. 20,000/- even at the date of the application for leave to appeal. But assuming that the valuation given by the petitioner is correct, I hold that there is no substantial question of law involved in the suit, and the application does not satisfy the requirements of Article 133 of the Constitution.

6. This application is accordingly dismissed; hearing fee five gold mohurs.

7. DAS J.: I agree. I think the decision in AIR 1946 Oudh 196 (D), can be distinguished. In that case the suit was brought by Jang Bahadur Singh in his representative capacity as representing the joint family. His sons were not plaintiffs in the suit. When Jang Bahadur Singh died during the pendency of the appeal, his sons, who were the managers of the joint family, were brought on the record, and it was stated that the sons represented the joint family. It was in that context that an observation was made to the effect that when the manager of a joint family dies after the institution of a suit in respect of a joint family fund, his sons, who are the managing members of the family, are competent to represent other members, and if they are brought on the record within time, the suit or the appeal does not abate by lapse of time. In the case before us the fundamental fact to be remembered is that the present petitioner, who was the plaintiff, wanted to get rid of a mortgage decree obtained by several persons, and the petitioner brought all those persons into the record and did not sue anyone of them as representing the joint family. In these circumstances, I think, it was incumbent on the present petitioners to bring the heirs of the two respondents on the record who had died during the pendency of the appeal.