Council, Mandsaur Vs. Fakirchand & ANR  INSC 137 (6 February 1997)
RAY, G.T. NANAVATI
O R D
E R Delay Condoned.
for amendment in substitution application is allowed.
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.
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
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.
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
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.
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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