Hukum Mahto and Others vs Sant Saho and Another

Foster, J.—The facts of this case are as follows: Hukum Mahto is the father of four sons and they form a joint Mitakshara family. In the course of a revisional record-of-rights in their village the defendants were recorded as the raiyats in possession of 10 kathas, 2 dhurs, the property now in dispute. That property had admittedly once belonged to the uncle of Hukum Mahto and it is the defendants'' case that they acquired the same by purchase. In the course of the Settlement operations a larger area, including this 10 kathas, 2 dhurs, had been at first recorded in the name of Hukum Mahto''s son, Makhoo Mahto. When the ultimate decision of the Settlement authorities was against the plaintiff, Hukum Mahto and his son. Makhoo Mahto, brought a suit for the following reliefs, stated briefly:

A declaration that the record-of-rights is incorrect, recovery of possession and mesne profits.

The plaint is not on the record of this present case but it appears to be agreed between the parties that this is a correct statement of what happened. For some reason or other, in the course of that suit Hukum Mahto and Makhoo Mahto as plaintiffs applied for leave to withdraw the suit with permission to bring a fresh suit. The order on this application was passed on the 1st November, 1919, to the following effect:

The plaintiffs are to pay the defendant his costs within one month from this date. On failure the suit will stand dismissed.

The plaintiffs did not deposit the costs in Court within the appointed period, nor were the costs in fact paid till about eight months subsequently. On the 10th November, 1919, that is nine days after the order I have quoted, the present suit was instituted for the same reliefs as those of the previous suit and on the same cause of action; the only distinction in the form of the suit being that the plaintiffs were no longer only Hukum Mahto and his eldest son, but were Hukum Mahto and all his four sons. The defendant resisted the suit on the ground that the costs not having been paid within one month in the previous suit and that suit having in consequence been dismissed, the plaintiffs were debarred from bringing a fresh suit on the same cause of action. On the other hand, the plaintiffs stated that whatever may be the effect of the order as against Hukum Mahto and Makhoo Mahto, the right of the other plaintiffs who sued remained unaffected by the dismissal of the previous suit. The Munsiff dismissed the present suit. In appeal to the Subordinate Judge, this decision was upheld on the ground that in the previous suit Hukum Mahto sued not only for himself but in a representative capacity as manager on behalf of his three younger sons. This is the decision upon the correctness of which I have to pass judgment.

The provisions of the CPC that are pertinent to the question are Sections 10 to 12 and Order XXIII, Rule 1, Section 10 has only an unimportant bearing upon the question because it only affects the position of Hukum Mahto during the period between the 10th November, 1919 when he filed the present suit and the 1st December, 1919 when his suit became dismissed; during that period the previous suit must be considered to have been pending. Under Clause (3) of Order XXIII, Rule 1 it is provided that, "where the plaintiff withdraws from a suit, without permission to bring a fresh suit, he shall ... be precluded from instituting any fresh suit in respect of such subject-matter." Section 11 provides that "no Court shall try any suit in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties ... litigating under the same title, in a Court competent to try such subsequent suit and has been heard and finally decided by such Court," and Section 12 provides that, "where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which the Code applies."

The principal question in deciding this appeal appears to me to be whether Hukum Mahto in the previous suit represented his three younger sons. If he did represent them, then they would undoubtedly have reaped the benefit of any decree obtained by him and it would be irrational to suppose that in those circumstances they would not also suffer the ill effects of the representative''s failure in the suit. So, if Hukum Mahto was their representative and if he was precluded by the order of the Court from bringing a fresh suit, that order must debar the three younger sons just as much as their father. Against the contention that he was a representative, it may be argued that there is nothing on the record that expressly shows that he sued as a representative and it may be argued that if he was suing as manager of the joint family, where was the necessity to join Makhoo, the eldest son, as co-plaintiff? In respect of the latter contention, a ready answer suggests itself, namely, that Makhoo''s name stood in the record-of-rights before the dispute in the course of Settlement which resulted in the present cause of action. The question whether a Hindu father represents his co-parceners is a question to be decided with reference to the circumstance of each case. There is a great difference between the case of a Hindu father suing in respect of contracts which the Mitakshara Law empowers him as manager to make on behalf of the family and a father suing in respect of rights in immovable property, rights which he can only hold equally with his co-parceners. At the same time, the right of the father and of the manager to represent the joint family in the latter class of suits has been recognised traditionally in the Courts. Where the interest of a joint undivided family is in issue and one member of that family has prosecuted a suit or has defended a suit, and a decree has been made in that suit, that decree may afterwards be considered as binding upon all the members of the family, their interest being taken to have been sufficiently represented by the party in the original suit. This practice of the Courts has been referred to in Jogendro Deb Roy v. Funindro Deb Roy (1872) 14 M.I.A. 367. The question whether a manager of a joint Hindu family is competent to bring a suit under the Bengal Tenancy Act was raised in the case of Muhammad Sadiq v. Khedan Lal (1916) 1 Pat. L.J. 154, but not decided. It was, however decided that there was nothing to prevent such a manager from bringing a suit to recover possession of proprietor''s private land. The present suit in regard to this first relief is obviously one which the plaintiff is empowered to make by virtue of Section 111-A of the Bengal Tenancy Act. Such a relief can, of course, be claimed by any member of a joint Mitakshara family. But the second relief is for recovery of possession of land alleged to belong to the joint family and it follows that any co-parcener who sues for such a relief as that, must be taken to be claiming to recover possession on behalf of the other members of the joint family. Therefore, from the very nature of the suit it appears to me that Hukum Mahto in the previous suit must be deemed to have been suing in a representative capacity; for, otherwise, I do not see how ho could claim recovery of land from a person who alleges that he has purchased from a deceased member of the plaintiffs'' family. Where a manager or the head of a family sued for such a relief as this, it is always open to the defendant under Order I, Rule 13 of the Code to raise a plea of defect of parties, but if the plea is not raised at the earliest opportunity it will not affect the progress of the suit. I do not see how I can hold otherwise than that Hukum Mahto in the previous suit not only sued on his own behalf but also on behalf of those members of the joint family who had a title coincident with his own. It is noticeable that in the plaint of the present suit there is no repudiation by the younger sons of the acts done on their behalf by their father.

It is urged that the dismissal in the previous suit should be taken to be valid only against Hukum Mahto and his son Makhoo and that the three younger sons should be allowed to proceed with the suit after making Hukum Mahto and Makhoo Mahto defendants, for such relief as they are entitled to. In support of this the learned Vakil for the appellants has cited the case Gopi Lal v. Lala Naggu Lal 15 C.W.N. 998. In my opinion there is no real resemblance between that case and this. In that case Gopi Lal first sued alone for a debt. It does not appear that he was a manager of the joint family to which he belonged. The other members of the joint family did not appear to have been his sons or even his younger brothers, so far as we can see from the judgment. In the first suit, the defendant raised a plea of non-joinder of plaintiffs and Gopi Lal obtained permission to withdraw the suit on condition that he must pay the defendants'' costs before bringing a fresh suit, or else the suit would stand dismissed with costs. Gopi Lal joined these other two persons as plaintiff''s, namely, Mewa Lal and Shamraj, and filed a fresh suit before paying the costs. It was held that Gopi Lal could no longer sue and should be joined as defendant, but the rights of the other two plaintiffs were not affected by the previous decision.

There was no question of representation in the case.

For these reasons I hold that Hukum Mahto and Makhoo Mahto are precluded from bringing the present suit and that the three younger sons are equally precluded inasmuch as their father and their representative is debarred. For these reasons I dismiss the appeal with costs.