MUNICIPAL COUNCIL, MANDSAURversusFAKIRCHAND AND ANR.

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                            MUNICIPAL COUNCIL, MANDSAUR                                 A
                                         v.
                               FAKIRCHAND AND ANR.

                                      FEBRUARY, 6, 1997

                            [G.N. RAY AND G.T. NANAVATI, JJ.]                           B

                  Code of Civil Procedure, 1908 :

                 Appeal-Abatement for not bringing legal representatives on
            recor~Suit filed by co-owners seeking pennanent injunction against appel-
            lant-Municipality-Suit decreed by Trial Court-Appeal preferred by
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            Municipality-Death of the co-owner during pendency of ap-
            peal-Municipality not bringing on record legal representatives of deceased
            co-owner--Consequently High Court holding that appeal stood abate~Ap­
            peal preferred by Municipality before Supreme Court-Held from the plaint it
            cannot be definitely held that property was coparcenery property which could D
            be represented by a Karta--Assumi11g it was coparcenery property there was
            nothing to suggest that any member was acting as Karta--On the other hand
            it was clear that plaintiffs i11tended to exercise their right as co-owners of
            property a11d have 11ot authorised anyo11e to act as Karta-Held in such
            circumstances order of High Court was not erroneous.
                                                                                        E
                  CIVIL APPELLATE JURISDICTION : Civil appeal No. 3012 {N)
            of 1982.

                 From the Judgment and Order dated 31.8.79 of the Madhya Pradesh
            High Court in S.A. No., 115 of 1968.
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                  S.K. Gambhir for the Appellant.

                  Dr. N.M. Ghatate and S.V.Deshpande for the Respondents.

                  The following Order of the Court was delivered :
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                  Delay condoned.

-""\              Application for amendment in substitution application is allowed.

                 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.       H
                                             1007
    1008                  SUPREME COURT REPORTS                 [1997] 1 S.C.R.
A No. 115 of 1968 that the appeal preferred by the appellant-Municipal
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    Council, Mandsaur stood abated in view of the fact that legal repre-
    sentatives of one of the co-owners were not brought on record when the
    appeal was pending before the lower appellate court.

           It may be stated here that initially three plaintiffs being brothers
B claiming to be the owners of the joint Hindu family property, filed a suit
  against Municipai Council, Mandsaur for a permanent injunction by assert-
  ing 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 appeiil, one of the three brothers had
C died. The Municipality did not bring the heirs and legal representatives of
  the deceased brother on record despite knowledge of such death put 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 whofe because the heirs
D and legal representatives of one of the co-owners had not been brought on
  record. Such contention has been upheld by the impugned decision.

          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
E   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

p       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 coparcenery
G 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
  t~ 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 o\vners who had inherited the father's interest after his death. That
H apart, even it is assumed that it was coparcenery property there is nothing
                     MUNICIPAL COUNCIL, MANDSAUR v. FAKIRCHAND                 1009
         on record to indicate that any one member or the eldest male member of A
         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
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         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.

         T.N.A.                                                  Appeal dismissed.




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