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Madhya Pradesh High Court · body

1978 DIGILAW 78 (MP)

Rajaram v. Phool Singh

1978-01-27

J.P.BAJPAI

body1978
Short Note : This second appeal was at the instance of the defendants against whom the plaintiff's claim for possession and mesne profits has been decreed by the lower appellate Court after reversing the Judgment and decree made by the trial Court. 2. On behalf of the respondent, a preliminary objection was raised by contending that since Gopal appellant-defendant No. 1 died during the pendency of this appeal and his legal representatives have not been brought on record, this appeal finally stands abated with effect from the expiry of the period of limitation for moving an application for setting aside the abatement. It would be significant to mention that the name of appellant-defendant No. 1 has been deleted from the cause title and the appeal is being prosecuted by the remaining appellants only. 3. In reply to the aforesaid objection, Shri R.K. Pandey, learned counsel for the appellants, contended that since as pleaded by the respondent plaintiff and also according to the finding arrived by the Courts below, the suit lands form part of the property of the joint Hindu family constituted by all the defendants including the deceased defendant No.1 and since according to the specific averments made in the plaint, the deceased defendant Gopal was sued in his representative capacity as Karta of the Joint Hindu family, the appeal did not abate, because Rajaram, who, on the death of Gopal, succeeded as Karta of the family being an eldest adult male member is already on record and has been recognised as such by the plaintiff also as per pleadings made in the plaint. The argument was that since the person who succeeded as Karta after the death of Rajaram is already on record, the estate of the joint Hindu family was sufficiently represented and the omission to bring on record the widow and daughters of Gopal was not material. Held : On behalf of the respondent, Shri B.M. Lal, placed reliance on the observations made by their Lordships of the Supreme Court in the case reported in Rameshwar Prasad v. Shambehari Jagannath, AIR 1963 SC 1901 . In the aforesaid case, it has been observed that the provisions of Order 41, rule 4 do not override the provisions of Order 22, rule 9 of the Code of Civil Procedure. In the aforesaid case, it has been observed that the provisions of Order 41, rule 4 do not override the provisions of Order 22, rule 9 of the Code of Civil Procedure. Shri Lal also relied on the observations made by the Supreme Court in Srichand v. Jagdish Prasad Kishanchand, AIR 1966 SC 1427 . In the aforesaid decision, it has been held that even if despite diligent and bonafide inquiry, certain heirs are left from being brought on record and the estate of the deceased is sufficiently represented, the other heirs are also bound by the decision given in the suit. Thus, it is the case which upholds the theory of sufficient representation. Reliance was also placed on some decisions of this Court reported in Shakoor Khan v. Rammohan, 1977 JLJ 783 : 1977 MPLJ 795 and Habibanbi v. Rammohan, 1977 MPLJ 263. In the aforesaid two decisions, the facts are apparently distinguishable. The question arising in the present case was not at all involved in any of the decisions cited. The question arising in this appeal is about the representative capacity of the person already on record who succeeded as Karta of the joint Hindu family and in my opinion, the decision of a Division Bench of this Court reported in Mukundilal v. State Bank of India, 1972 JLJ 671 : 1972 MPLJ 1048 is fully applicable and the present appeal does not abate even if the heirs of the deceased appellant No. 1 have not been brought on record inasmuch as appellant No. 2, who succeeded as Karla of the family, being already on record represented the entire estate of the joint family. 4. It is true that by virtue of the provisions of section 6 read with Explanation 1, (of the Hindu Succession Act, 1956) a notional partition is contemplated, but the same does not bring about the actual disruption of the coparcenary so as to enable one to contend that the Karla of the family stands deprived of his representative capacity. The object and purpose of providing a notional partition is for ascertaining the quantum of shares to be allotted to the deceased coparcener. It was not made for abolishing the Hindu coparcenary, if one of the coparceners happened to die leaving some female heirs behind him. The object and purpose of providing a notional partition is for ascertaining the quantum of shares to be allotted to the deceased coparcener. It was not made for abolishing the Hindu coparcenary, if one of the coparceners happened to die leaving some female heirs behind him. It is true that the female heirs, as specified in clause (1) to the Schedule of the Act are not coparceners, but the same does not bring about a disruption of the coparcenary despite the fact that they had a definite share in the undivided interest of the deceased coparcener in the property belonging to the joint family and, therefore, the share will have to be fixed by presuming as if there was a notional disruption of the status of the joint family. But so long as there is no actual disruption, the representative capacity of the Kana does not come to an end. For the purpose of representing the entire joint family estate which is the subject-matter of dispute in the present appeal, Rajaram who undisputedly became the Karla of the joint family on the death of Gopal is fully competent. It is true that the female heirs and relatives of the deceased appellant Gopal may be appropriate parties and if they would have sought to join the proceedings, the Court might have been inclined to permit them to be impleaded as parties, but, in any case, they are not necessary parties so long as the Karta of the family is already on record and therefore, no question of abatement of the appeal, either in part or in whole, arises. The preliminary objection raised on behalf of the respondent is, therefore, rejected.