Full Judgment Text
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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.