Union of India Vs. Sree Ram Bohra
& Ors  INSC 15 (29 January 1965)
29/01/1965 DAYAL, RAGHUBAR
DAYAL, RAGHUBAR BACHAWAT, R.S.
CITATION: 1965 AIR 1531 1965 SCR (2) 830
Hindu Law-Suit by two persons representing
joint Hindu family--Death of one-Appeal against the other-If competentCode of
Civil Procedure (Act 5 of 1908), 0.22. r. 11.
The respondent and B filed a suit and
obtained a decree for a certain sum against the appellant. The appellant
appealed to the High Court and subsequently B died. The High Court dismissed an
application setting aside the abatement of the appeal against B and for
substitution as it was of opinion that there had been gross negligence on the
part of the appellant. when the appeal came up for hearing a preliminary
objection was raised by the respondent that the appeal had abated entirely
which was upheld by the High Court. On appeal by certificate, the appellants
contended that there could be no abatement of the appeal as the had been
brought by the respondent and B as the Kartas of the joint family and on the
death of one of the Karta, the other Karta continued to represent the joint
family, the real plaintiff-respondent.
HELD: The appeal against the respondent was
When two representatives of a joint Hindu
family sued and obtained a decree in their favour for the benefit of the joint
Hindu family, and an appeal was filed against both of them as respondents
representing the joint Hindu family, the other representative would not continue
to represent the joint family on the death of one of the representatives.
[835 B-D] Any one of them could not represent
the joint family after the death of the other till his authority to represent
the family was confirmed by the members of the family. [835 F-G] The State of
Punjab v. Nathu Ram,  2 S.C.R. 636, relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 611 of 1962.
Appeal by special leave from the judgment and
decree dated February 11, 1959. of the Patna High Court in Appeal from Original
Decree No. 525 of 1951.
Bishan Narain. D. R. Prem. B. R. G. K. Achar
and R. N. Sachthey, for the appellant.
A. V. Viswanatha Sastri and K. K. Sinha, for
respondents Nos. 1 to 5.
The Judgment of the Court was delivered by
Raghubar Dayal J. Bilas Rai Bohra, son of Bansidhar Bohra and Sree Ram Bohra,
son of Ganpat Ram Bohra, sued the Union of India for the recovery of Rs. 13,448
from the defendant for 831 compensation on account of loss and damage suffered
by the plaintiffs owing to non-delivery of II bales of cloth which had been
consigned on October 20, 194 8 by M/s Ram Kishan Das Sagarmal of Bombay to the
plaintiffs under the description of M/s Banshidhar Ganpat Rai. It was alleged
in para 1 of the plaint that the plaintiffs carried on business in cloth and
other articles in the name and style of M/s Bansidhar Ganpat Rai which was
their joint family trading firm governed by the Mitakshara School of Hindu Law
of which joint family the plaintiffs were the kartas and representatives and
that they sued as such. This statement in para 1 of the plaint was not admitted
in the written statement. The trial Court decreed the suit on August 29, 1951.
The decree, inter alia, said :
"It is ordered that the suit be decreed
with costs defendants do pay to the plaintiffs the sum of Rs. 13,448 with
interest thereon." The Union of India appealed to the High Court of Patna
and prayed for the setting aside of the decree and for the dismissal of the
suit with costs. The plaintiffsrespondents were served with notice of the
Subsequently Bilas Rai Bohra died on July 24,
1957. On September 5, 1958, the Union of India presented an application for
substitution under 0. 22, r. 4 read with 0.
22, r. 1 1, C.P.C. for setting aside the
abatement and condonation of delay. It was stated in the application that the
applicant's advocate came to know of the death of Bilas Rai Bohra, plaintiff
No. 1, on May 14, 1958 when the case was on the daily list with a note to that
effect, that he promptly communicated the fact to the railway authorities but
due to the mistake of the Attacher, proper steps for substitution could not be
taken in time. It was further stated that after a good deal of enquiry and
efforts for three days the date of the death of Bilas Rai Bohra and the names
and addresses of his heirs and legal representatives could be ascertained. A
prayer was made for substituting the heirs of Bilas Rai Bohra, they being his
sons, a widow and a daughter. Their names were mentioned in the application.
This application was opposed on behalf of the
heirs of Bilas Rai Bohra. It was mentioned therein that on September 27, 1957,
an application for substitution of the heirs of Bilas Rai Bohra was made in
another appeal in which the Union of India was a respondent and that therefore
the Union of India and its Advocate were aware of the death of Bilas Rai Bohra
and of the names of his heirs.
832 On December 1, 1958, the High Court
dismissed the application for the setting aside of the abatement of the appeal
against Bilas Rai Bohra and for the substitution of the heirs as it was of
opinion that there had been gross negligence on the part of the appellant, the
Union of India, as its counsel had information about the death of Bilas Rai
Bohra at least on May 16, 1958. The High Court did not feel satisfied on the
facts of the case that any ground had been made out for setting aside the
abatement of the appeal.
It may be mentioned here that it was not
urged in the High Court that there had been no abatement of the appeal against
the heirs and legal representatives of Bilas Rai Bohra. It could not have been
urged when the Union of India itself had applied for the setting aside of the
abatement and the substitution of the heirs and legal representatives of Bilas
The appeal of the Union of India against the
surviving respondent, viz., Sree Ram Bohra, came up for hearing on February II,
1959, when a preliminary objection was raised on behalf of the respondent to
the effect that the appeal had abated entirely as it had abated against the
heirs of plaintiff-respondent No. 1. It was contended for the Union of India
that the two plaintiffs, viz., Bilas Rai Bohra, deceased, and Sree Ram Bohra,
had filed the suit as kartas of the joint family which was the owner of the
firm of M/s Bansidhar Ganpat Rai and that after the death of one of the kartas
the other plaintiff who was also described in the plaintiff's suit as karta was
competent to represent the family and so there could be no question of
abatement of the entire appeal. Again, it was not contended that the appeal
against the heirs of Bilas Rai Bohra had not abated.
The High Court upheld the preliminary
objection and held that the appeal had become incompetent and was liable to be
dismissed. It was of opinion that even if it be taken that both th plaintiffs
had filed the suit in their capacity as kartas of the same joint family, the
joint family had gained by virtue of the appeal having abated against the heirs
of Bilas Rai Bohra as the decree passed in favour of the joint family through
the representation of Bilas Rai Bohra could not be set aside and in case the
appeal was permitted to proceed against the joint family in the presence of the
other karta Sree Ram Bohra, there might be occasion for the coming into
existence of two inconsistent decrees. The High Court, accordingly, dismissed
the appeal. It was against 83 3 this order that the Union of India obtained the
certificate from the High Court under Art. 133 and then filed this appeal.
The sole point for decision in the appeal then
is whether the appeal of the Union of India before the High Court against the
respondent Sree Ram Bohra, respondent No. 2, was competent after it had abated
against respondent No. 1, Bilas Rai Bohra, on account of his heirs and legal
representatives being not brought on the record. It has not been disputed for
the appellant that in case it is held that the appeal had abated against the
heirs and legal representatives of Bilas Rai Bohra, it became incompetent
against the surviving respondent alone. The suit was filed by both the
plaintiffs. Both were respondents in the appeal. The decree was a joint one,
without any specification regarding the shares of each of the decreeholders.
The appeal must, therefore, become incompetent if it has abated against one of
What is really urged for the appellant is
that there could be no abatement of the appeal on the death of Sree Ram Bohra
and the omission to bring on record his heirs and representatives, as the real
plaintiff was the joint family which owned the firm Bansidhar Ganpat Rai, the
consignee of the bales which were not delivered and as the suit had been
brought by the two named plaintiffs as the kartas of the joint family. It is
said that on the death of one of the kartas, the other karta continued to
represent the joint family, the real plaintiff-respondent, and that therefore
there could not be any abatement of the appeal. We do not consider the
We have not been referred to any text of
Hindu Law or any decided case in support of the proposition that a joint Hindu
family can have more than one karta. The very idea of there being two kartas of
a joint Hindu family does not appear, prima facie, consistent with the concept
of a karta.
Their describing themselves as kartas of the
joint Hindu family owning the firm and their suing as such cannot make them
kartas of the joint Hindu family if the Hindu Law does not contemplate the
existence of two kartas.
In paragraph 236 of Mulla's Hindu Law, XII
Edition, is said "Property belonging to a joint family is ordinarily
managed by the father or other senior member for the time being of the family.
The manager of a joint family is called karta.
834 The father is in all cases naturally, and
in the case of minor sons necessarily, the manager of the joint family
property-" The existence of two kartas cannot lead to the smooth
management of the property of the joint Hindu family and the other affairs of
the family in view of the powers which the karta of a joint Hindu family
possesses under the Hindu Law, powers which are not restricted to only such
powers which ordinarily the manager of property of certain persons who confer
authority on him to manage the property possesses. The karta of the joint Hindu
family is certainly the manager of the family property but undoubtedly
possesses powers which the ordinary manager does not possess.
The karta cannot therefore be just equated
with the manager of property.
Reference was made to the case reported as
Bhagwan Dayal v. Mst. Reoti Devi(1). It was stated at p. 482 :
"The legal position may be stated thus :
Coparcenary is a creature of Hindu law and
cannot be created by agreement of parties except in the case of reunion. It is
a corporate body or a family unit. The law also recognizes a branch of the
family as a subordinate corporate body. The said family unit, whether the
larger one or the subordinate one, can acquire, hold and dispose of family
property subject to the limitations laid down by law. Ordinarily the manager,
or by consent, express or implied, of the members of the family, any other
member or members can carry on business or acquire property. subject to the
limitations laid down by the said law, for or on behalf of the family."
The fact that any other member or members other than the manager of the joint
Hindu family, carry on business etc., on behalf of the family, does not mean
that such members who act for the family do so as kartas of the family.
In the absence of any text of Hindu law or of
any previous decision that a joint Hindu family can have two kartas we are not
prepared to express any definite opinion on the question whether there can be
two kartas of a joint Hindu family and, if there can be two kartas, what would
be the effect of the death of one of them on the maintainability of a suit
brought by both of them.
(1)  3 S.C.R. 440.
835 Two persons may look after the affairs of
a joint Hindu family on the basis of the members of the joint Hindu family
clothing them with authority to represent the family. They would be two persons
entitled to represent the family and their power to represent would depend on
the terms of the authority conferred on them by the members of the joint Hindu
family. Their authority to act for the family is not derived under any
principle of Hindu law, but is based on the members of the joint Hindu family
conferring certain authority on them. It cannot, therefore, be said that when
two such representatives of a joint Hindu family sue and obtain a decree in
their favour for the benefit of the joint Hindu family, and an appeal is filed
against both of them as respondents representing the joint Hindu family, the
other representative would continue to represent the joint family on the death
of one of the representatives. He could not possibly do so when the authority
given by the joint Hindu family be to the effect that both of them were to act
jointly. In the absence of any knowledge about the terms of authority of the
two representatives, it is not possible to urge successfully that on the death of
one of the representatives, the other representative still continued to
represent the joint Hindu family. On the death of one of the representatives,
the karta of the family, in accordance with the principles of Hindu law, will
automatically be the person entitled to represent the joint Hindu family till
such time that the family again decides to confer the authority on specified
members of the joint Hindu family to represent it. There is no material on the
record to indicate the terms and scope of the authority conferred on the two
plaintiffs by the joint Hindu family.
We, therefore, consider the matter in appeal
on the basis that the suit was brought by two persons as plaintiffs.
They can at best be taken to represent the
joint Hindu family which owned that firm Bansidhar Ganpat Rai. Any one of them
cannot represent the joint family after the death of the other till his
authority to represent the family is confirmed by the members of the family.
There is no allegation or proof about such confirmation or fresh vesting of
authority in the second plaintiff, viz., Sree Ram Bohra.
For the purpose of the suit, there were two
plaintiffs and on the death of one of them it was necessary for the opposite
party to implead his heirs and legal representatives within time. It failed to
do so and therefore the appeal against those heirs and representatives of Bilas
Rai Bohra was rightly held to have abated. The result of such abatement makes
this appeal against the other respondent incompetent as the decree against both
the respon836 dents viz., Bilas Rai Bohra and Sree Ram Bohra was a joint
decree. There was nothing in the decree to indicate for whose benefit it was
passed or in what proportions the two decree-holders were to get the decretal
amount. The appeal against Sree Ram Bohra was therefore incompetent.
This view is supported by the decision of
this Court in The State of Punjab v. Nathu Ram(1). It was held there that when
the decree in favour of the respondents is joint and indivisible, the appeal
against the respondents other than the deceased respondent cannot be proceeded
with if the appeal against the deceased respondent has abated.
We are, therefore, of opinion that the High
Court was right in holding that the appeal against Sree Ram Bohra alone became
It has been further argued for the appellant
that the High Court should have allowed the appellant's application for setting
aside the abatement. The High Court exercised its discretion judiciously, after
taking into consideration the facts urged in support of the prayer that the
abatement of the appeal be set aside. We do not find any reason to consider
that the discretion was not properly exercised.
We, therefore, do not consider this a fit
case to interfere with the discretion exercised by the High Court in this
We, therefore, dismiss the appeal with costs.
(1)  2 S.C. R. 636.