1. Suit for permanent injunction regarding joint family property — Death of co-owner during appeal — Failure to bring legal representatives on record — Issue of abatement. (Para 3 , 4 )
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1997 Supreme(SC) 218
1997(2) Supreme 504
SUPREME COURT OF INDIA
G.N. Ray and G.T. Nanavati, JJ.
Municipal Council, Mandsaur -Appellant
versus
Fakirchand and Anr. -Respondents
Civil Appeal No. 3012(N) of 1982
Decided on 6-2-1997
Counsel for the Parties :
For the Appellant : S.K. Gambhir, Advocate.
For the Respondents : Dr. N.M. Ghatate, Sr. Advocate and S.V. Deshpande, Advocate.
Important Points
The court held that an appeal abates if the legal representatives of a deceased co-owner are not brought on record, unless the property is proven to be coparcenary property represented by a Karta. Mere inheritance of joint family property does not automatically establish a Karta's representation.
Subject
Civil Law - Abatement of Appeal
Act Referred
Headnote
APPEAL-Abatement-Suit for permanent injunction filed by three brothers as co-owners of joint family property against Municipal Council decreed-During pendency of appeal one of the three brothers died-Heirs of deceased not brought on record despite knowledge-Suit filed by all the co-owners showing that all of them intended to exercise their right as co-owners-They had not authorised any one of them to represent the property as a Karta of joint Hindu Family property-High Court decision suffers no error that appeal before lower appellate Court abated as a whole. (Para 6)
Legal Category Hierarchy
Table of Contents
2. Whether joint Hindu family property is represented by the Karta, thereby preventing the abatement of an appeal upon the death of a co-owner. (Para 5 )
3. Plaint indicated ownership was acquired after the father's death, suggesting undivided property of joint owners rather than coparcenary property represented by a Karta. (Para 6 )
4. An appeal abates if legal representatives of a co-owner are not brought on record, unless the property is coparcenary and represented by a Karta. (Para 6 )
5. Appeal dismissed. (Para 6 )
6. Does the death of a co-owner in a suit for injunction lead to the abatement of the appeal if legal representatives are not brought on record?
Yes, if the property is held as undivided property of joint owners and not as coparcenary property represented by a Karta, the failure to bring legal representatives of a deceased co-owner on record can lead to the abatement of the appeal. (Para 6 )
7. When is a property deemed to be coparcenary property representable by a Karta for the purpose of avoiding abatement?
Property is coparcenary if the sons are coparceners even before the father's death. If ownership is claimed to be acquired only after the father's death, it is treated as undivided property of joint owners. (Para 6 )
8. Does the act of all co-owners filing a suit together indicate the existence of a Karta's representation?
No, when all co-owners file a suit for injunction, it indicates they are exercising their rights as individual co-owners and have not authorized a Karta to represent the joint family property. (Para 6 )
ORDER
Delay condoned.
2. Application for amendment in substitution application is allowed.
3. The short 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.
4. It may be stated here that initially three plaintiffs being brothers 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 pendency 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 been upheld by the impugned decision.
5. 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.
6. 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 brothers became owners of the said joint hindu family property. It may be indicated here that if it was a coparcenary property then the sons would have been coparceners even before the death of the father and there was no necessity to wait till 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 said three joint owners who had inherited the father s interest after his death. That apart, even it is assumed that it was coparcenary property there is nothing on 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 intend 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 said to be erroneous for which any interference by this Court is called for. The appeal, therefore, fails and is dismissed without any order as to costs.
Appeal dismissed.
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