Case Note & Summary
This civil appeal by special leave arose from the judgment and decree of the Patna High Court dated February 11, 1959, in Appeal from Original Decree No. 525 of 1951. The background involved a suit filed by two plaintiffs, Bilas Rai Bohra and Sree Ram Bohra, against the Union of India for recovery of Rs. 13,448 as compensation for loss and damage due to non-delivery of eleven bales of cloth consigned on October 20, 1948. The plaintiffs alleged they were kartas and representatives of a joint Hindu family trading firm, M/s Bansidhar Ganpat Rai, governed by Mitakshara School of Hindu Law. The trial court decreed the suit on August 29, 1951, ordering the defendant to pay Rs. 13,448 with interest. The Union of India appealed to the Patna High Court. During pendency of the appeal, Bilas Rai Bohra died on July 24, 1957. The Union of India filed an application on September 5, 1958, for substitution under Order 22 Rule 4 read with Rule 11 CPC, seeking to set aside abatement and condone delay, but the High Court dismissed it on December 1, 1958, holding gross negligence. When the appeal came up for hearing on February 11, 1959, the surviving respondent raised a preliminary objection that the appeal had abated entirely. The High Court upheld the objection and dismissed the appeal, reasoning that even if both plaintiffs sued as kartas, the joint family gained by abatement against one heir and proceeding against the other karta could lead to inconsistent decrees. The Union of India obtained certificate under Article 133 and filed Civil Appeal No. 611 of 1962 before the Supreme Court. The sole legal issue was whether the appeal against the surviving respondent was competent after abatement against the deceased respondent. The appellant contended that no abatement occurred because the real plaintiff was the joint family and the surviving karta continued to represent it. The respondent maintained that the decree was joint and the appeal must abate entirely. The Supreme Court rejected the appellant's contention, holding that a joint Hindu family cannot have more than one karta under Hindu law, and that persons described as kartas in the plaint do not become kartas if law does not contemplate two kartas. The Court further held that representatives other than karta act under authority conferred by family members, and after death of one, the other does not automatically continue unless the terms of authority so provide. Relying on State of Punjab v. Nathu Ram, the Court concluded that the appeal against the surviving respondent was incompetent because the decree was joint and the appeal had abated against one respondent. Accordingly, the Supreme Court dismissed the appeal.
Headnote
A) Civil Procedure - Abatement of Appeal - Order 22 Rule 4 read with Rule 11, Code of Civil Procedure, 1908 - When an appeal is filed against two joint decree-holders and abates against one due to failure to substitute legal representatives, the appeal becomes incompetent against the surviving respondent alone; joint decree cannot be set aside in part. The Union of India appealed against a joint decree passed in favour of two plaintiffs. One plaintiff died and the appeal abated against his heirs due to gross negligence. Held that the appeal against the surviving respondent was incompetent because the decree was joint and the appeal had abated against one respondent. (Page 835 B-D) B) Hindu Law - Karta and Joint Family Representation - Hindu Law (no specific Act) - A joint Hindu family cannot have more than one karta under Hindu law; two persons described as kartas in a plaint cannot be so if law does not contemplate two kartas. The karta has powers beyond an ordinary manager. The Court observed that the very idea of two kartas is prima facie inconsistent with the concept of a karta and that the existence of two kartas cannot lead to smooth management of family property. (Page 834) C) Hindu Law - Authority to Represent Joint Family - Hindu Law (no specific Act) - Persons other than karta may represent family by consent or authority of members; their authority depends on terms; on death of one such representative, the other does not continue automatically unless authority so provides. The Court held that when two representatives sue and obtain a decree for the family, the surviving representative cannot continue to represent the family after the death of the other in the absence of knowledge about the terms of authority. (Page 835)
Issue of Consideration
Whether an appeal against a surviving respondent is competent after abatement against another respondent when both plaintiffs sued as representatives/kartas of a joint Hindu family and decree was joint.
Final Decision
The Supreme Court dismissed the appeal and upheld the High Court's decision that the appeal before it was incompetent due to abatement against one respondent. The Court held that a joint Hindu family cannot have more than one karta and that two representatives acting under family authority do not continue to represent the family after death of one unless authority so provides.
Law Points
- Appeal abates if abates against one joint decree-holder
- joint Hindu family cannot have more than one karta under Hindu law
- persons acting for family under authority are not kartas
- on death of one representative other does not continue to represent unless authority provides
- joint decree makes appeal incompetent if abated against one respondent
