Rajeshwari Prasad Singh and Others vs Saheb Singh and Others

Harries, C.J.—This is a Letters Patent appeal from a judgment of a learned single Judge of this Court in a second appeal. The suit out of which the appeal arises was brought by nine plaintiffs for the recovery of possession of certain joint family property. One of the plaintiffs was a minor and during the pendency of the suit plaintiff 1, who was the senior member of the family, died. Eventually the remaining eight plaintiffs obtained a decree in their favour in the trial Court, and this decree was affirmed by the lower Appellate Court and by the learned single Judge of this Court. In these proceedings the minor plaintiff who had now become respondents, was represented by the Deputy Registrar as guardian ad litem. The minor was impleaded as one of the respondents in this Letters Patent appeal, but certain costs payable to the guardian were not paid. On 2nd August 1938 the learned Registrar ordered the appellants to deposit these costs within a period of two weeks. On 9th August 1938 it appears from an order of the Deputy Registrar that the appellants abandoned their proceedings in so far as respondents 8 to 24 were concerned. Respondent 8 was, as I have stated, the minor plaintiff who had been represented later through the learned Deputy Registrar, his guardian ad litem.

Mr. Sushil Madhav Mullick who appears on behalf of the respondents has taken a preliminary objection that this appeal is incompetent. He has argued that the decree under appeal is in favour of eight plaintiffs including respondent 8 who was a minor. The decree gave to the plaintiffs possession of family property and by abandoning their appeal as against respondent 8 the whole of the appeal is bound to fail. Reliance has been placed upon the case in Dharanjit Narayan Singh v. Chandeshwar Prosad Narayan Singh 11 C.W.N. 504. In that case during the pendency of an appeal against a decree setting aside the sale of a joint estate for arrears of revenue, two of the plaintiffs-respondents died and there was no application for substitution of the heirs of the deceased respondents, the right to sue not surviving against the other respondents. It was held that the appeal ''abated inasmuch as the decree could not be reversed without the representative of the deceased being placed on the record. It was further held that under no circumstances could the decree be affirmed as to the unascertained shares of some joint share-holders and reversed as to the unascertained shares of the other joint share-holders. Mr. Mullick has argued that there is no distinction in principle between the Calcutta case and the case now before us. In my view this preliminary objection is well founded and must be sustained. The decree was a decree in favour of eight members of a joint family granting them possession of certain joint family property. If this appeal could proceed against the remaining seven plaintiffs, it might be that the decree would be reversed as to the unascertained shares of seven of the members of the family and remain unaffected as against the unascertained share of the minor plaintiff 8. Such a position cannot be allowed, and that being so, I must hold that the appeal is incompetent as against the remaining seven respondents.

Dr. Dwarka Nath Mitter who appears on behalf of the appellants has contended in the first place that the abandonment of the appeal in so far as it was directed against respondent 8 in no way affects the matter. Plaintiff 1 was described in the plaint as the karta of the family and undoubtedly he could have brought these proceedings on behalf of the family without any of the other members being added as co-plaintiffs. Plaintiff 1 died, but the new karta was also amongst the plaintiffs. At the time the appeal against respondent 8 was given up the name of the karta of the family Was on the record, and it is contended that such being the case, the minor respondent was still represented though in terms the proceedings had been given up against him. In my view as the decree was in terms in favour of eight plaintiffs including respondent 8, it was essential that the eight of them should have been impleaded. Where a decree is obtained in the names of the individual members of a joint family, then the question of representation does not arise. Any appeal against such a decree must be brought against all the persons in whose name the decree stands. In the present case it was, in my view, essential that the appeal should have been continued against the eight plaintiffs and the result of giving up the appeal against one of them is that the appeal cannot be continued against the remainder.

Dr. Mitter has further argued that the properties in question in this suit were not joint family properties. He has pointed out that the properties were not in terms purchased in the name of the joint family; but throughout the proceedings it is clear that they have been regarded as joint family properties. In fact, it is pleaded in the plaint that though the properties were not purchased in the name of the joint family they were in fact purchased for the joint family and that all the plaintiffs as members of a joint family were interested in the same. Dr. Mitter has argued that the properties are self-acquired properties in which the plaintiffs had an interest as tenants-in-common. In my view the properties were clearly joint family properties in which the plaintiffs had unascertained shares. That being so, the case falls completely within the principle laid down by the Calcutta case, Dharanjit Narayan Singh v. Chandeshwar Prosad Narayan Singh 11 C.W.N. 504 to which I have previously referred.

Dr. Mitter has argued that if the effect of giving up appeal against respondent 8 is to render the appeal against the remaining respondents incompetent, then we should allow respondent 8 to be added afresh as a party. He has argued that the abandonment of the appeal against respondent 8 was due to a mistake. Junior counsel who appears for the appellants has informed us that he did not intend to give up the appeal against respondent 8; but from the order-sheet it is clear that there was no mistake at the time this order was madef It may well be that learned Counsel at that time did not realize the importance of retaining respondent 8 on the record, and it appears that a few days afterwards when it was brought to the counsel''s notice that the appeal had been given up against respondent 8, even then the importance of the fact was not appreciated. I can well believe that there is an element of mistake in this case; but even so, I am unable to agree that we should at this late stage again add respondent 8 to the array of respondents and thus enable the appeal to proceed.

Had application been made immediately or within a reasonable time of the learned Deputy Registrar''s order, I might have been inclined to accede to it. However, at this late stage it would be manifestly unjust to the respondents to allow respondent 8 to be added in order to enable the appellants further to prosecute the appeal. For the reasons which I have given, I am bound to hold that the appeal, as at present constituted, is incompetent and accordingly I would dismiss it with costs.

Wort J.

I agree that the preliminary objection succeeds.