The eldest male member of a joint family is presumed to be the karta on the death of the previous karta, and he can represent the family in an execution proceeding. However, the principle of substantial representation of the estate by one of the heirs and legal representatives cannot be invoked to overrule an objection raised at the early stage of the proceeding.

( 1 ) THIS is an appeal by an objector whose objection under Section 47 of the Civil P. C. has been dismissed by the learned Subordinate Judge, Darjeelins by his order dated February 28, 1967 passed in Misc. Case No. 52 of 1966. The said misc. case arose out of an execution case being Order C. Execution Case No. 21 of 1960.

( 2 ) THE respondent obtained a mortgage decree by consent against a joint mitakshara family represented by the then karta thereof namely Ramrup Mistry and put the same decree into execution in the aforesaid O. C. Execution Case No. 21/60. Pending the execution, Ramrup Mistry died and the present appellant was brought on the record as the succeeding karta of the joint family. There is no dispute that the appellant is the eldest son of the deceased Ramrup Mistry and being himself one of the coparceners was the eldest male member of the family.

( 3 ) THE appellant filed an objection under Section 47 of the Code raising a plea that he is not the karta of the joint family, that he alone cannot represent either the family or the other coparceners and hence the execution case cannot proceed against him as the karta of joint family and unless the other heirs and legal representatives are brought on record, the execution case should be dismissed.

( 4 ) THE learned Judge overruled the said objection. On the evidence of the appellant himself, the learned Judge found that the joint family is still in existence and that there had been no severance of such a joint family. Though the appellant claimed in his evidence that he is not the karta, the learned Judge refused to accept such a claim as according to him the appellant being the eldest, male member of the joint family must be presumed to be the karta. The learned Judge further held that the appellant being one of the heirs and legal representatives and having been brought on record he could at least represent the estate.

( 5 ) MR. Ghose appearing in support of this appeal has assailed both the conclusions of the learned Judge. He has first contended that in the absence of any evidence or finding that the appellant had been acting as a karta of the family with the consent of the other members there can be no presumption that on the death of the father, the appellant became the Karta and as such entitled to represent the joint family.

( 6 ) SECONDLY, he has contended that the learned Judge went wrong in thinking that one of the heirs and legal representatives can substantially represent the estate. That principle according to Mr. Ghose cannot be invoked to overrule an objection of the nature raised by the appellant at the earliest stage of the proceeding.

( 7 ) MR. Banerjee on behalf of the respondent has contested both the points thus raised by Mr. Ghose and he supported the findings of the learned Judge. According to Mr. Banerjee on the evidence on record the learned Judge in the Court below was justified in arriving at a conclusion that on the death of Ramrup Mistry the present appellant who is the eldest of the sons could reasonably be held to be the karta of the family succeeding the father. It is more so, according to Mr. Banerjee when the appellant has failed to show that there had been any severance of the joint family or that somebody else had been acting as the karta.

( 8 ) WE have carefully considered the two contentions raised by Mr. Ghose. In our opinion, there is some substance in the second point raised by Mr. Ghose. Here the objection as to not bringing on record all the heirs and legal representatives of the deceased judgment-debtor had been raised at the very outset of the execution proceeding. It is not a case where the decree or the final order had been passed in the ignorance of an heir and legal representative being left out. An objection of the present nature raised at the early stage cannot be defeated on the application of a principle that one of the legal representatives may well represent the estate under certain circ