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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: SREE RAM BOHRA AND OTHERS

DATE OF JUDGMENT: 29/01/1965

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR BACHAWAT, R.S. RAMASWAMI, V.

CITATION:  1965 AIR 1531            1965 SCR  (2) 830

ACT: Hindu  Law-Suit  by  two persons  representing  joint  Hindu family--Death of one-Appeal against the other-If  competent- Code of Civil Procedure (Act 5 of 1908), 0.22. r. 11.

HEADNOTE: 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 incompetent. 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, [1962]  2  S.C.R.  636, relied on.

JUDGMENT: 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

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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   plaintiffs- respondents   were  served  with  notice  of   the   appeal. 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  applica- tion  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

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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 Rai Bohra. 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  decree- holders.  The appeal must, therefore, become incompetent  if it has abated against one of the respondents. 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

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family,  the real plaintiff-respondent, and  that  therefore there  could not be any abatement of the appeal.  We do  not consider the contention sound. 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

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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)  [1962] 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 respon- 836 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

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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 incompetent. 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 regard. We, therefore, dismiss the appeal with costs. Appeal dismissed. (1) [1962] 2 S.C. R. 636. 837