Mool Narain v. Mohan Krishna — 1969 DIGILAW 7 (ALL)

JUDGMENT Satish Chandra, J. - This is a defendants' appeal arising out of a suit for declaration. 2. The two plaintiffs were sons of Ranaeshwar Prasad, defendant No. 4. Defendant No. 5, Jageshwar Prasad was their uncle. Defendants Nos. 1, 2 and 3 are the sons and widow of Ram Narain, who represented another branch of the plaintiffs' family. The plaintiffs alleged that they and defendants Nos. 4 and 5 constituted a joint Hindu family. Previously, all the parties constituted a joint Hindu family, but, after partitions in the family, they became separate in status and properties. The house of the parties are situate in the same Ahata. House No. 30/71 belonged to the family of the plaintiffs and defendants Nos. 4 and 5, whereas houses Nos. 30/70 and 30/72 were owned by defendants Nos. 1, 2 and 3. The plaintiff's house (No. 30/71) was a very old one. It had wooden balconies on the northern and western sides. They became decayed and needed reconstruction. In 1950, defendant No. 4, as the head and Karta of the joint family, demolished and re-constructed the said balconies. The defendants Nos. 1, 2 and 3, thereupon, instituted a suit (No. 1598 of 1951) against the plaintiffs' father, defendant No. 4, and uncle, defendant No. 5, for demolition of the two balconies and for an injunction directing them not to make any projection over the passage land. The plaintiffs of that suit, namely, the present defendants Nos. 1, 2 and 3, alleged that the passage below the balconies belonged exclusively to them, and the projection over it was an encroachment upon it. The defendants were alleged to have only a right of way over the said passage. In defence, the plaintiffs' father and uncle claimed exclusive ownership of the passage and pleaded that they had built the balconies on the pre-existing site and had not made any fresh encroachment over the passage land. At the trial, both parties gave a statement that the plaintiffs of that suit owned a 314th and the defendants thereof a 114th share in the passage land. The two balconies were found to be new constructions, and not a replacement of the old ones. The suit was, therefore, decreed for demolition as well as the injunction. The plaintiffs' father and uncle went up in appeal. The two balconies were found to be new constructions, and not a replacement of the old ones. The suit was, therefore, decreed for demolition as well as the injunction. The plaintiffs' father and uncle went up in appeal. The appellate court held that previously a wooden balcony did exist on the western side, but it was only 2 feet wide. The balcony now built was much wider than that, and the portion in excess of two feet in width was liable to be demolished. Northern balcony was held to be entirely new and liable to be demolished. The suit was, therefore, decreed for demolition of the northern balcony and for demolition of so much of the western balcony as exceeded two feet in width. The plaintiffs' father and uncle came up to the High Court in Second Appeal, but the same was dismissed. The decree was put in execution. The judgment-debtors resisted by taking various pleas, but their objections were dismissed. Thereupon, the present suit was filed for a declaration that the decree in the previous suit was not binding on the present plaintiffs, as they were not parties to it. The plaintiffs' father and uncle were sued in their individual capacity. They did not represent the family. They contested the suit with culpable negligence inasmuch as they did not raise the plea that even if the projection of the balconies over the passage land infringed the rights of the other side, they were not liable to be demolished, as the parties were co-sharers in the passage land, and the plaintiffs could well be compensated by award of damages. 3. In defence, it was pleaded that the plaintiffs' father and uncle were sued as the head of the family as representing the entire family. They contested the suit tooth and nail and took all possible pleas. They had engaged eminent lawyers, and were not guilty of any negligence. The decree operated as res-judicata in the present suit. 4. The trial court held that the plaintiffs' father and uncle were sued as representing the joint family, and not in their individual capacity, and that the previous decree operated as res judicata between the parties. The suit was dismissed. The plaintiffs went up in appeal. The appellate court, on a review of all the facts and the law, held that the defendants 4 and 5 were not sued as representing the family. The suit was dismissed. The plaintiffs went up in appeal. The appellate court, on a review of all the facts and the law, held that the defendants 4 and 5 were not sued as representing the family. They were guilty of negligence in not raising the plea that the case was not a fit one for the grant of the relief for demolition. Since no substantial injury was caused to the plaintiffs of that suit by the projection of the balcony, the case was such in which demolition need not have been ordered. As such, the present plaintiffs, who were not parties to that litigation, did suffer prejudice to their rights. They were, therefore, not bound by the previous decree. The suit was decreed for the requisite declaration. Aggrieved, the defendants have come to this Court in Second Appeal. 5. For the appellants, it was urged that, admittedly, the plaintiffs were minors, when the previous suit was instituted in 1951, and were sufficiently represented by their father, who was the Karta of the family. In a case where the Karta of a family improves a joint family property by reconstructions, a suit to challenge the validity of such an act of the Karta would relate to the affairs and properties of the family and the Karta would be deemed to be sued in his representative capacity. The result of the litigation would be binding on the entire family. The finding of the lower appellate court was contrary to law. 6. The lower appellate court has found that in the previous suit, defendants 4 and 5 were not described or alleged to be sued as Karta or representatives of the family. If the intention was to sue the family, only defendant No. 4, who was the Karta of the family, need have been impleaded. The fact that defendant No. 5 was also impleaded showed an intention not to sue the family as such, but those two individuals. The plaint of that suit did not make any allegations that the impugned contructions related to joint family properties or that the impugned act was an affair of the joint family of the defendants to that suit. The fact that defendant No. 5 was also impleaded showed an intention not to sue the family as such, but those two individuals. The plaint of that suit did not make any allegations that the impugned contructions related to joint family properties or that the impugned act was an affair of the joint family of the defendants to that suit. It was also emphasised, on the strength of the Privy Council decision in Effush Arnissah v. Effush Kraliah, A.I.R. 1936 PC 147, that an action against a family may bind the absent members of the family if it was constituted as a representative suit according to the local rules of procedure or by a representation order. In the previous case, the suit was not so constituted and no such procedure was undergone. The lower appellate court further held that the fact that the defendants did not take the plea that demolition, being a discretionary relief, ought not be granted, showed that they did not effectively represent the family. 7. It is noticeable that in paragraph 23 of the plaint it was alleged that the reconstructed balconies projected over the joint land of the parties, but did not in any way, interfere with the user of the said joint land nor amount to the ouster of the defendants, and, as such, the decree for demolition was neither just nor appropriate. This was denied in paragraph 43 of the written statement. But, there is no finding by either of the two courts below as to whether the act of projecting the balconies over common land constituted ouster of the defendants, and, as such, their construction was unauthorised and illegal. Both the courts have proceeded on the assumption that it would be an encroachment upon the rights of the defendants. In the previous suit, however, this question was gone into and it was held that the whole column of space above the joint land is joint immoveable property, and making of constructions over it would amount to exclusive appropriation of a joint property. That was illegal. 8. In the previous suit, however, this question was gone into and it was held that the whole column of space above the joint land is joint immoveable property, and making of constructions over it would amount to exclusive appropriation of a joint property. That was illegal. 8. Since the present plaintiffs were not parties to the previous decree, it would operate as res-judicata against them under Explanation VI to Section 11, C. P. C. It states that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such rights shall, for the purposes of this Section, be deemed to claim under the persons so litigating. The previous litigation ought to have been conducted bona fide, that is to say, without any fraud or collusion. The Privy Council in Talluri Venkata Seshayya v. Thadkonda Kotiswara Rao, A.I.R. 1937 PC 1, held that negligence or gross negligence could not, in the absence of fraud or collusion, be treated as want of bona fides. There is no allegation or finding of fraud or collusion in the present case. It will, therefore, be held that the parties to the previous litigation conducted it bona fide. The other condition for the application of Explanation VI is that the private right was claimed in common by the parties and that the absent persons were interested in such right. It is not necessary that the right be expressly so claimed. If it was implicit in the litigation that it was in truth and substance a right so claimed, then this condition would also be satisfied. If Explanation VI applies, then the previous decree would operate to preclude the trial of any issue which was directly and substantially in issue in the previous suit; Any matter which might or ought to have been made a ground of defence in the former suit cannot under Explanation IV to Section 11, C. P. C. be reagitated. Thus, all pleas, which could have been taken in the previous suit, would be barred, but the pleas, which could not be taken in the previous suit, would remain open. Thus, all pleas, which could have been taken in the previous suit, would be barred, but the pleas, which could not be taken in the previous suit, would remain open. For instance, a decree against a father based on a debt would not be binding on the sons in a suit filed by them on the cause of action that the action of the father was wrongful, because the father could not take that plea in the former suit. In the subsequent suit, the question whether the incurrence of the debt was wrongful could be raised and decided see Shanker Rao v. Kamta Prasad, A.I.R. 1947 Nag. 129. In the present case, the plaintiffs do not allege that the action of their father in reconstructing the joint family house was unlawful. They specifically state that the action was in relation to the joint family property and for the benefit of the family. The plea of the plaintiffs that their father acted negligently because he did not raise the defence that, under the circumstances, the relief for demolition ought not to be granted, would be barred by the 'might and ought rule' engrafted by the fourth Explanation to Section 11, C. P. C., because it is implicit in the present plea that the father could have taken that plea in the former suit. The question, therefore, arises whether the right was claimed by the plaintiffs' father and uncle in common for themselves and the present plaintiffs, expressly or impliedly. The defence in the former suit was that the house of the defendants was very old and the balconies existed by over 50 years, with had been rebuilt on their former site. The plaint allegations as well as the defence proceeded on the assumption that the house belonged jointly to both the defendants who were brothers. The answer to the question whether the right could be deemed to have been claimed in common for the other members of the family, who were not parties to the suit, would primarily depend upon the position, powers and duties of the Karta of a Hindu joint family. 9. In Hindu law, joint family or co-parcenery is created and sustained by the tie of Sapindaship. Hindus become members of the co-parcenery by birth. Hindu law recognises the right of succession by survivorship within the co-parcenery. 9. In Hindu law, joint family or co-parcenery is created and sustained by the tie of Sapindaship. Hindus become members of the co-parcenery by birth. Hindu law recognises the right of succession by survivorship within the co-parcenery. A Hindu co-parcenery differs materially from other co-ownerships such as joint tenancy or tenancy in common. Shankeran Nair, J. in Pothi v. Naganna, (1916) 33 Madras Law Journal 62 (FB), observed :- "The difference between the joint tenancy of a Hindu family and as it is understood in English law must be borne in mind. In the former, the joint tenancy has its origin in birth and not by conveyance. There is no unity of possession, the managing member being alone entitled to it against the others. There is no unity of title as the members do not derive their interest at the same time. There is no unity of time as they do not hold for the same time and from the same time. There is no unity of interest, as some may be entitled to a larger share than others. The only co-extensive right of co-parceners is survivorship." 10. The Privy Council in Raghunadha v. Brow Kishor, 1876 (3) Indian Appeals 154 at 191 observed that an undivided Hindu family is ordinarily joint not only in estate, but also in food and worship. Therefore, not only the concerns of the joint property, but whatever relates to their commensality and their religious duties and observance must be regulated by its members, or by the manager to whom they have expressly or by implication, delegated the of regulation. 11. In Suraj Bunsikoer v. Sheo Prasad, (1880) 6 Indian Appeals 88. the Privy Council held that so long as the family remains undivided, the father is, in all cases naturally, and in the case of minor sons necessarily, the manager of the joint family property. In the present case, the present plaintiffs were minors when the former suit was instituted in 1951. Their father was necessarily the manager of the joint family property. He alone was entitled to its possession and management. In the course of management, the manager has the authority to do all things necessary for the purposes of the family and the benefit of the family. Their father was necessarily the manager of the joint family property. He alone was entitled to its possession and management. In the course of management, the manager has the authority to do all things necessary for the purposes of the family and the benefit of the family. An act of the manager within his authority would bind every other member of the family, be he a minor or an adult, so far as their interest in the joint family property is concerned. 12. In my opinion, these principles and the decisions of the Privy Council, to which I would presently refer, lead to the conclusion that where a suit relates to an act or transaction in respect of joint family property, and the person sued is the father or the head of the family, even though he was not alleged or described as such in the pleadings and even though the decree may not have been passed expressly against him as such, the father will be deemed to have been sued as the Karta. 13. In Bissassur Lall Sahoo v. Luchmesur Singh, (1880) 6 Indian Appeals 233 (PC), the facts were that one Nath Dass had taken a lease of the property. A decree for recovery of rent was passed against his grandson Mosahab, recoverable from the properties left by the deceased Nath Dass. In execution of the decree, village Muddunpore, which belonged to the joint family, was sold. Chooman, an undivided brother of Mosahab, challenged the validity of the execution sale, on the ground that he was not a party to the decree and the same was not binding on him or the joint family property. The Privy Council held the sale to be valid and binding on both the brothers. It was observed :- "Acting an the principle which follows from their finding that this family was joint, it must be assumed that Mosahao Dass is sued as a representative of the family and that it must further be assumed that Nath Dass in taking the lease of the Mouzah be referred to, Ramnugger, in respect of which the rent was due must be assumed to have taken it on behalf of the family, and that the debt must be deemed to be a debt from the family ...... Looking to the substance of the case, this decree is a decree against the representative of the family in respect of a family debt and that it is one which could be properly executed against the joint property of the family, and that Muddunpore was a part of that joint property." 14. In Dowlat Ram v. Mehar Chand, (1887) 14 Indian Appeals 187, the plaintiff, who was the mortgagee and auction purchaser at an execution sale, filed a suit for a declaration that he had purchased not only the share of the mortgagors, but also of all members and the interest of the entire family. In the former suit to enforce the mortgage, he had sought to recover the amount not only from the mortgagors but also from the mortgaged property. The other members of the family defended the suit not on the ground that the original mortgage was confined to the mortgagors' interest in the joint family property, but rested their defence on the ground that they had not been made parties to that suit and consequently, their shares in the property could not be sold. The court found that what was intended to be mortgaged was the whole of the mortgaged joint family property, and not the mortgagors' share alone. The circumstance that the mortgage was of the joint family property, led the Privy Council to hold that the mortgagors were sued as managers in their representative character. The entire family was bound by the decree. 15. In Kishen Prasad v. Nar Narain Singh, (1911) 38 Indian Appeals 45 (PC), the suit was originally brought by the managing members of the family on a loan. The other members were not initially impleaded. The question was whether they were necessary parties. The Privy Council held that they were not. It characterised the observations of Turner, C. J., in Pisharody v. Narayanan Somayajipad, 1881 (3) Madras 234 to the effect that all the owners in such a case must be joined and they could not invest the managers with a right to sue in a re-presentative capacity, as being too broadly stated. The Judicial Committee held that this proposition, thus broadly stated as to co-ownership, cannot be applied to managing members of an undivided Hindu family. 16. The Privy Council decision in Sheo Shankar Ram v. Jaddo Kunwar, A.I.R. 1914 PC 136 is equally interesting. The Judicial Committee held that this proposition, thus broadly stated as to co-ownership, cannot be applied to managing members of an undivided Hindu family. 16. The Privy Council decision in Sheo Shankar Ram v. Jaddo Kunwar, A.I.R. 1914 PC 136 is equally interesting. In that case, a foreclosure decree on foot of a mortgage was passed against the managing members of a joint Hindu family. The managing members did not exercise the right to redeem. The decree was made absolute. The other members of the family then brought a suit claiming a right to redeem the mortgaged property. Their claim was negatived. In that case, the mortgagee had no notice of the fact that the mortgage property was the joint family property. He did not describe the mortgagors as managers of the joint family, nor was the decree expressly against them in their representative character. The Privy Council noted that the mortgagors were at the time of acquiring the properties and also at all material times in the foreclosure suits, the managers of the joint family, and they acted as such both in acquiring the properties and in abstaining from redeeming them. From this circumstance, they deduced that the joint family was effectively represented by the managers. The Privy Council decision in Lingam Gowda v. Basan Gowda, A.I.R. 1927 PC 56 is on the same lines. It was observed in that case that in the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he becomes of age and then bring an action or bring an action by his guardian before. 17. These decisions establish :- (a) That the managing member effectively represents the entire family and a decree passed against him would be binding upon all the members; (b) That it is not necessary that the pleadings should expressly state that he was sued in his capacity as the manager; (c) That the suit will be deemed to have been brought by or against him in his representative character, if the circumstances of the case show that the transaction in question related to joint family property. 18. In the present case, the house in dispute is admittedly a joint family property of the plaintiffs and the defendants 4 and 5. 18. In the present case, the house in dispute is admittedly a joint family property of the plaintiffs and the defendants 4 and 5. The defendant 4 was the Karta. His action in repairing or reconstructing the family property was undoubtedly an act as the Karta done in the interest of the family property and thus for the benefit of the family. The transaction which led to the former suit being an act of defendant No. 4 done by him as the Karta of the family, he would be presumed to be defending his action in the same capacity. There is nothing in the pleadings or evidence or findings of the former suit to indicate that the defendant 4 had disclaimed his representative capacity and had claimed to contest the suit only as an individual. Under the circumstances, he would be deemed to have represented the, family in that litigation. 19. The lower appellate court has relied upon the Privy Council decision in Effush Amissah v. Effush Kraliah. That was a case from Gold Coast colony in Africa. It did not relate to Hindus. The parties were of a Mohammedan family and were regulated by their customary laws. No such custom as may be akin to the incidents of the coparcenery was either alleged or found in that case. The observations that an action by or against some members of the family may bind others if the suit was constituted in a representative manner according to the local rules of procedure, would, therefore, be not relevant to the case of a manager of a joint Hindu family. A Full Bench of our Court in Thakur Din v. Sita Ranz, AIR 1939 Allahabad 399 distinguished that Privy Council case on this very ground, and held that it was inapplicable to the case of a manager of a joint Hindu family. 20. A Full Bench of this Court in Hari Lal v. Munman Kuar, (1912) 9 ALJ 189 has held that a suit in relation to the joint family property brought against the manager would be deemed to be against the entire family and the omission of the names of the other members from the array of the parties would not be a defect fatal to the suit. I am unable to read in that decision that the head of the family must be described as such, before he would be deemed to have been sued in a representative capacity. The previous decree would, therefore, operate as res judicata in the present suit. 21. The lower appellate court has held that the father could not be deemed to have contested the former suit in a representative capacity because he did not take an available plea that the case was not fit for granting the relief of demolition and thus caused prejudice to the other members of the family. In my opinion, the learned Judge was in error on this point as well. It is true that in the full bench decision of Chhedi Lal v. Chhote Lal, AIR 1951 Allahabad 199, it was held that the question of relief was separate and distinct from the rights of co-sharers. While a co-sharer is entitled to object to any co-sharer exclusively appropriating the land to himself to the detriment of the other co-sharers, the question as to what relief should be granted to the aggrieved co-sharer depends upon the circumstances of the case. The court may be persuaded to grant the relief for demolition and in-junction if it is satisfied that the plaintiff could not be adequately compensated at the time of the partition and that greater injury will result to him by the refusal of the relief than by granting it; but, if material and substantial injury will be caused to the defendant by the granting of relief, the court will no doubt, be exercising proper discretion in withholding such relief. The crucial basis for the distinction drawn by the Full Bench was the fact that the plaintiff could be adequately compensated at the time of partition. This decision will not be applicable where the damage could not be remedied by partition. In the present case, the encroachment was on a joint land left so at previous partitions in the family, for passage to the various houses. It is a small strip of land, 4 feet wide at some places and 6 or 8 feet wide at others. The houses of the parties abut on the two sides of this strip of land. Both parties have a right of way over it. The present plaintiffs have not alleged or proved that this land was partible. It is a small strip of land, 4 feet wide at some places and 6 or 8 feet wide at others. The houses of the parties abut on the two sides of this strip of land. Both parties have a right of way over it. The present plaintiffs have not alleged or proved that this land was partible. Since it was left joint at previous partitions for the purposes of passage, it would normally appear that it was not capable of partition. In any event, the plainffs could not say that they were prejudiced by the negligence of their father, unless they established that the common land was capable of partition and that the other side could be adquately compensated at the time of partition for the damage to their rights by the impugned encroachment. They have neither pleaded nor established that fact. The finding that their rights were prejudiced by the inaction of their manager in not taking this plea in the former suit, cannot hence be sustained. The plaintiffs had alleged that the alleged projection of the balconies did not amount to the ouster of the defendants from the joint property. This point does not appear to have been pressed before either of the two courts below. The point was not argued before me. It is, therefore, unnecessary to give a finding on that point, or to hold that the finding in the former suit that the space above the joint property is also a joint immoveable property and an encroachment thereupon would amount to exclusive appropriation thereof, was incorrect. 22. In the result, the appeal succeeds, and is allowed. The decree is set aside, and-the suit is dismissed. But, under the circumstances, the parties will bear their own costs throughout.