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Municipal Council, Mandsaur Vs. Fakirchand & ANR [1997] INSC 137 (6 February 1997)

G.N. RAY, G.T. NANAVATI

ACT:

HEAD NOTE:

O R D E R Delay Condoned.

Application for amendment in substitution application is allowed.

The snort question that arose for decision in this appeal is whether the High Court has correctly decided by the impugned judgment in S.A. No. 115 of 1968 that the appeal preferred by the appellant-Municipal Council, Mandsaur stood abated in view of the fact that legal representatives of one of the co-owners were not brought on record when the appeal was pending before the lower appellate court.

It may be stated were that initially three plaintiffs being droners claiming to be the owners of the joint Hindu family property, filed a suit against Municipal Council.

Mandsaur for a permanent injunction by asserting their title to the property. Such suit was decreed by the trial court and the Municipality thereafter preferred an appeal before the lower appellate court. During the pungency of such appeal. one of the three brothers had died. The Municipality did not bring the heirs and legal representatives of the deceased brother on record despite knowledge of such death but made an application that the name of the deceased brother should be deleted from the array of parties. The question thereafter was raised by the remaining plaintiffs that the appeal had abated as a whole because the heirs and legal representatives of one of the co-owners had not been brought on record. Such contention has ben upheld by the impugned decision.

Mr. S.K. Gambhir, the learned counsel appearing for the appellant has contended before us that since in the plaint the plaintiffs had stated that the property was a joint Hindu family property, such property must be deemed to be represented by the Karta of the joint family and as the eldest brother was alive, it must be held that such joint Hindu family property was represented by the eldest brother and in that case, there was no question of abatement of the appeal as a whole.

We are however unable to accept such contention of Mr. Gambhir for the reason that from the statement made in the plaint it cannot be definitely held that the property was coparceners property which could be represented by a karta.

It has been alleged in the plaint that after the death of the father, all the three partners became owners of the said joint Hindu family property. It may be indicated were that if it was a codarcenery property then the sons would have been codarceners even before the death of the father and there was no necessity to wait will the death of the father to get ownership of the property. The averments in the plaint really means that the disputed property was the undivided property of the saic three joint owners who had inherited the father's interest after his death. That apart, even it is assumed that it was codarcenary property there is nothing an record to indicate that any one member or the eldest male member of the family was acting as a karta of the joint family. On the contrary, it appears that all the co-owners filed the said suit for injunction, which on the face of it, only indicates that all of them intent to exercise their right as co-owners of the property and they have not authorised any one of them to represent the property as a karta of the joint Hindu family property. In the aforesaid circumstances, the decision of the High Court cannot be saic to be erroneous for which any interference by this Court is called for. The appeal, therefore, falls and is dismissed without any order as to costs.

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