JUDGMENT : ( 1. ) THIS is an application by the defendant in a small cause suit brought by some but not all the heirs of the original creditor. The basic defence which alone has to be considered at this stage is whether some of the heirs of the original "creditor", could sue leaving out the other heirs. In the instant case the heirs left out are the daughters; but the father had died after the commencement of the Hindu Succession Act and the suit itself had been filed in 1969. ( 2. ) THE circumstances leading to the suit are somewhat complicated. The following summary is sufficient for our purposes. There was some accommodation in the ownership of Badrilal Onkarji father of the present plaintiffs who died sometime in 1967. In Badrilals time this accomodation had been rented out at Rs. 5 per month to one Shivharak. Shivharak himself is not now in the picture because the person in possession is the present defendant-appellant claiming to be the sub-tenant of Shivharak. Badrilal having obtained a decree tried to take possession which was resisted by the present defendant. But it has. been held as the final decision of the Courts that the defendant is not the tenant of Badrilal. Actually the defendant himself had brought a declaratory suit which itself had been dismissed on 18-11-1968. Ultimately the defendant did quit but for a period he had been in unlawful possession. For that period the present plaintiffs filed a suit for damages calculating it at rs. 12 a month. For three years it comes to Rs. 432. They added also about rs. 20 as interest and filed the suit in the Small Cause Court. Though the amount claimed is of the nature of damages it is a liquidated sum and there is no difficulty about the jurisdiction of the Small Cause Court. The plaintiffs were three, they being Badrilals widow and his two sons. It is common ground that Badrilal has left two daughters and he having died after the commencement of the Hindu Succession Act not only do the daughters get a share but also by virtue of the explanation to section 6 of that Act their share would be deemed to have been nationally ascertained and partitioned at the time of their fathers death. At that stage the defence was that the suit was not competent because all the heirs of Badrilal had not joined; nor was there an administration or succession certificate enabling one or more of the heirs to sue on that basis. This was a point taken in the written statement and it should have been easy for the present plaintiffs to have impleaded the daughters at least as proforma defendants, if they did not want to join as plaintiffs. They had failed to do so and taken the stand that after Badrilals death the eldest son Ramkishan (plaintiff No. 1) was the karta of the family. It is difficult to understand how at this stage Ramkishan suing as "karta" can represent the two daughters. Ultimately the Court allowed the suit holding that - "a suit against a trespasser by even one of the co-parceners of a joint family is maintainable because the suing co-parcener would be deemed to be representing the others. " Case-law has been cited by the both sides but those on which the plaintiff has relied and the Court has approved relate to a period before the commencement of the Hindu Succession Act To be sure, one of the rulings relates to a later period Ram Niranjan Das v. Loknath Mandal ( AIR 1970 Pat. 1 . ). But a study of the judgment shows that there was no occasion there to consider the effect of the Hindu succession Act of 1956. Actually the case law set out in that judgment relates to a period before the commencement of that Act. Here we are dealing with a case in which the succession itself had opened after the Hindu Succession Act. ( 3. ) IN the Calcutta Ruling reported in Narayan Prasad Ruia v. Mutini kohain ( AIR 1969 Cal. 69 .) the effect of the non-representation in the suit by some of the co-sharers succeeding under the Mitakshara law after the commencement of the Hindu succession Act has been dealt with. It was a suit for the eviction of a tenant; but the general principles are applicable to all classes of cases. In that case one of the sons had died during pendency of the suit and there having been no substitution the suit was held to have abated not only in regard to the dead co-sharer but in respect of all of them. In that case one of the sons had died during pendency of the suit and there having been no substitution the suit was held to have abated not only in regard to the dead co-sharer but in respect of all of them. "the female heir having been left, the proviso to section 6 read with Explanation 1 thereto was attracted and the result was that the share of the deceased co-parcener must be deemed to have been partitioned out immediately before his death and devolved on his mother. " In the ruling reported in Champalal v. Padamchand ( 1969 MPLJ 918 - 1969 JLJ 1005 .) it was held:- "the proviso to section 6 of the Act contemplates devolution of interest by intestate succession on certain females not because they are co-parceners but on account of their relationship to the deceased. . . . . . When the owner of a single right. . . dies and his right passes by devolution to his heirs, all of them must join in a suit to enforce that entire right as a whole. If any of them refuses to join as plaintiff he must be impleaded as a defendant. The reason is that joint promisee cannot divide the debt among themselves and sue severally for parts of the debt. It follows that a suit to enforce the right by one or some one of the promisees is liable to be dismissed. " The same principle has been laid down in the ruling as Bhanwarlal v. Dewa (1970 MPWR Note 136. ). ( 4. ) THE defendant-applicants have also urged that in any view of the matter interest could not have been granted on damages in the absence of an express agreement to this effect. But this is only a matter of detail which does not come up for consideration in view of the decision that the suit itself was incompetent without impleading either as joint plaintiffs or as proforma defendants some of the heirs to the estate of Badrilal. ( 5. ) ACCORDINGLY the application is allowed and the decree of the Small cause Court is set aside. In the special circumstances there will be no order for costs. Application allowed.