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1963 DIGILAW 49 (ALL)

Bhimsen Singh v. Milap Singh

1963-02-13

A.P.SRIVASTAVA

body1963
JUDGMENT A.P. Srivastava, J. - This is a defendant's appeal. The plaintiffs claimed the land in suit which according to them was part of plots Nos. 26 and 27 and 28, to be their agga Sahan. They said that en the portion F G D E K L the defendants had wrongfully made constructions and had also closed a door of the plaintiffs shown by letter O in the plaint map. They claimed possession over the land and the demolition of the newly made constructions. They also claimed the reopening of the door at point O. They further claimed an injunction restraining the defendants from interfering with the plaintiff's rights. The defendants contested the suit and denied that the land in dispute belonged to the plaintiffs or that they had a right of suit in respect of it. They also pleaded that the plaintiffs had no door towards the east which they could claim to maintain. The trial court dismissed the suit on 6-4-1954. An appeal was then filed by the plaintiffs on 24-5-1954. During the pendency of this appeal Raghubir Singh one of the defendants died. No notice was, however taken by any body about his death. The appeal proceeded and was allowed on 20-7-1956. The decree of the learned Munsif was set aside and the case was remanded to him. The plaintiffs, then, made an application praying that the name of Raghubir Singh be deleted because he was a member of a joint Hindu family with his nephew Raj Ballabh Singh and the latter had succeeded to his interest by survivorship. It was according to the plaintiffs not necessary to bring on record the widow of the deceased as Raj Ballabh Singh was already a party. The name of Raghubir Singh was thereupon deleted and the suit proceeded. The plea that the entire suit had abated was, not accepted. The trial court on the 24th of September, 1957 dismissed the suit in respect of the other reliefs but decreed it for the reopening of the door on the east at point O. Against this decree the plaintiffs filed an appeal and the defendants filed a cross-objection. The cross-objection of the defendants was dismissed and the decree about the reopening of the door was maintained. The appeal of the plaintiffs was however allowed in part. The cross-objection of the defendants was dismissed and the decree about the reopening of the door was maintained. The appeal of the plaintiffs was however allowed in part. Though the dismissal of the suit in respect of the rest of the land was maintained the suit was decreed for possession by demolition in respect of that part of the land in dispute which was shown by letters A B H G in the map prepared by Sri P.S. Mathur Commissioner and a permanent injunction was also granted as prayed in respect of that part of the land. The plea that the entire suit had abated because of the death of Raghubir Singh and his wife had not been brought on record in his place was not accepted. 2. The plaintiffs have submitted to the decree but the defendants have filed this second appeal. Two contentions have been pressed on their behalf. The first is that the entire suit should have been declared to have abated because the widow of Raghubir Singh was not brought on record and two inconsistent decrees were therefore, likely to come into existence if any part of the plaintiff's suit was decreed. The second contention is that the finding of the learned Civil Judge that the portion A B H G was really the sahan of the plaintiffs and they were entitled to a decree in respect of it was not correct. 3. The second contention is clearly untenable, because according to the finding of the learned Civil Judge the land A B H G is really a part of plot No. 26 which belonged to the plaintiffs and with which the defendants had no concern. Title to this land being with the plaintiffs their possession could be presumed and as the defendants had wrongfully interfered with that possession the plaintiffs were entitled to the reliefs which have been granted to them. The finding that this land belonged to the plaintiffs and was in their possession is a finding of fact which cannot be questioned here. 4. So far as the first contention is concerned it is common ground that Raghubir Singh died during the pendency of the case leaving a widow who was not brought on record in his place. The finding that this land belonged to the plaintiffs and was in their possession is a finding of fact which cannot be questioned here. 4. So far as the first contention is concerned it is common ground that Raghubir Singh died during the pendency of the case leaving a widow who was not brought on record in his place. There is on record an uncontroverted affidavit on behalf of the plaintiffs to the effect that Raghubir Singh and his nephew Raj Ballabh Singh, who was originally defendant No. 8 and is now defendant No. 7 formed a joint Hindu family and all the rights of the family passed on, after the death of Raghubir Singh, to Raj Ballabh Singh by reason of survivorship. Raghubir Singh admittedly died in December, 1955 or January 1956, after the Hindu Womens Right to Property Act came into force. The question, therefore, is whether if two members of a joint Hindu family are impleaded in a suit and one of them dies leaving a widow who is entitled to the benefit of the Hindu Womens Right to Property Act, the suit can be held to have abated if that widow is not brought on record, and the other surviving member of the family is held to continue representing the family. It appears to be well settled now that simply because after the death of a coparcener his widow gets certain rights under the Hindu Womens Right to Property Act, 1937, the joint family does not get disrupted and continues to be joint. If, therefore, there are members of the joint family who are entitled to represent the family in the litigation the mere fact that the widow is not brought on record would not cause the abatement of the case. This was the view taken by a Division Bench of the Oudh Court in Lala Radha Raman v. Anant Singh, A.I.R. 1945 Oudh 196. The first head note in that case reads :- "Although the Hindu Womens Right to Property Act vests in a Hindu widow the limited interest of her husband in the joint family property, it does not operate to alter the Hindu law of joint family so as to make her a member of the coparcenary. The first head note in that case reads :- "Although the Hindu Womens Right to Property Act vests in a Hindu widow the limited interest of her husband in the joint family property, it does not operate to alter the Hindu law of joint family so as to make her a member of the coparcenary. The mere devolution of the husband's interest would not otherwise affect the joint family status as such or invest the widow with the rights of a male coparcener other than those necessary for enforcing the interest expressly conferred on her. The right of coparcener ship or a representation of the joint family is not included among the rights so conferred, and it is difficult to regard her as a legal representative of her husband in that sense. Therefore, when the manager of a joint family dies after the institution of a suit in respect of a joint family fund, his sons, who are the managing members of the family are competent to represent other members, and if they are brought on the record within time, the suit or the appeal does not abate by lapse of time. It is not necessary to bring the manager's widow on the record." The same view was taken in Kalyan Raj v. Kashi Nath, 1943 A.L.J. 161 where it was held that a widow who had got the benefit of the Hindu Womens Right to Property Act was capable of being represented by the karta of the family. Later, in Fateh Chand v. Brij Bhushan Prakash, AIR 1957 Allahabad 801 it was held that the joint status of the family was not disrupted simply because the widow of a deceased coparcener got an interest in the joint family property in respect of which she could claim partition. The karta of the family could, therefore, continue to be entitled to manage the affairs of the family and to represent the family including the widow's own affairs. If this principle is applied, the omission to implead the widow of Raghubir Singh when his nephew and the survivor of his joint family Raj Ballabh Singh was already on the record could not lead to the abatement of the suit. 5. Learned counsel for the appellant referred to Mst. Gujrati v. Mst. If this principle is applied, the omission to implead the widow of Raghubir Singh when his nephew and the survivor of his joint family Raj Ballabh Singh was already on the record could not lead to the abatement of the suit. 5. Learned counsel for the appellant referred to Mst. Gujrati v. Mst. Ramdei, 1955 A.L.J. 364 That case does not appear to be of any help to the learned counsel because it was not laid down in it that the joint family was disrupted by the widow's getting certain rights under the Hindu Womens Right to Property Act. What was held in that case was that the rights which the widow got under the Act were substantial rights which could not be ignored by the other coparceners and that she was entitled to challenge any alienations of the joint family property made by the other coparceners to the prejudice of her rights. The case does not deal with the point whether the omission to implead a widow would lead to the abatement of the suit. 6. The next case relied upon is Jugal Kishore Jodha Lal Kalwar v. Wardhasa Padamasa Lad, AIR 1955 Nagpur 166 . That case instead of supporting the learned counsel for the appellant really goes against him. The second head note of that case reads :- "Where a suit is brought against the individual members of a joint family and not in a representative capacity, the interest of the widow of a deceased member is not represented by the other members of the joint family on the record of the case. In this view the widows are necessary legal representatives." From this it follows that the impleading of the widows is necessary only if the suit is against the individual members of the family and not in a representative capacity. Where, however, all the coparceners of the family are there and one dies leaving the others as the surviving coparceners the suit being in a representative capacity, the surviving coparceners can represent the family and it would not be necessary to implead the widow. 7. The other two cases which are relied upon are of the Patna High Court and are Dhanukha Singh v. Saudagar Singh, A.I.R. 1955 , Pat. 240 and Arjun Singh v. Matuk Dhari Singh, AIR 1955 Patna 391. 7. The other two cases which are relied upon are of the Patna High Court and are Dhanukha Singh v. Saudagar Singh, A.I.R. 1955 , Pat. 240 and Arjun Singh v. Matuk Dhari Singh, AIR 1955 Patna 391. In both these cases a partition suit had been filed against the individual members of the joint Hindu family and it was found necessary to implead the widow of the deceased party who had succeeded to his rights under the Hindu Womens Right to Property Act. No question of the family being represented by the other member or members arose in those cases. As was pointed out in Fateh Chand's case Patna High Court also had in Kamal Kishore Prasad v. Hari Har Prasad Single, AIR 1951 Patna 645 taken the view that the coparcenary continue even though a widow succeeds to the interest of a coparcener under the Hindu Wowens Right to Property Act and there is no disruption of the joint family. 8. The courts below were, therefore, right in overruling the contention that the suit had abated because the widow of Raghubir Singh was not brought on record. As Raj Ballabh was already a party any decree against him would be binding on the entire family including the widow of the deceased. The suit could not, therefore, be declared to have abated. 9. Both the grounds urged are thus unacceptable and the appeal fails and is dismissed with costs.