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PETITIONER: MUNICIPAL COUNCIL, MANDSAUR

       Vs.

RESPONDENT: FAKIRCHAND AND ANR.

DATE OF JUDGMENT:       06/02/1997

BENCH: G.N. RAY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          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

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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.