Sualal and others vs Bhanwarlal

Nigam, J.C.

Rodmal and Bhanwarlal filed Civil Suit No. 262 of 1946 against Sualal and five others claiming a decree for possession and for mesne profits. The suit was decreed by the learned IInd Additional Subordinate Judge and the defendants appealed to the District Judge. During the pendency of the appeal, Rodmal died and the question arose whether the appeal had abated or not. The learned District Judge held that Rodmal and Bhanwarlal had filed the suit in their personal capacity and, as such, Bhanwarlal alone did not represent the interest of Rodmal as Bhanwarlal''s brother and his mother were alive. The learned District Judge, accordingly, held that the appeal had abated as a whole. Against that judgment and decree, the defendants have come up in second appeal. I have heard the learned counsel for the appellants.

The learned counsel for the appellants has urged that the plaintiffs Rodmal and Bhanwarlal were members of a joint Hindu family. It is also urged that in view of the presumption that all properties owned by the members of a joint Hindu family belonged to a joint family, it must be held that the property in suit was also joint family property. The learned counsel further argues that if it is held that the property was joint family property, and in case of doubt an enquiry should have been held, Rodmal''s death will not have any effect as the joint family which is the real owner of the property is fully represented by Bhanwarlal.

I agree. There would be no difficulty if Rodmal and Bhanwarlal had filed the suit as ''karta'' of the family or its managers. But the plaint does not give any indication of the suit having been filed in a representative capacity. The learned District Judge is right in his conclusion that the suit was instituted by the two plaintiffs in their individual capacity and not as members of a joint family or as ''karta'' or managers of any such family. In such a case, it is obvious that the heirs of the deceased plaintiff should have been brought on to the file. The learned counsel for the appellant has referred me to - ''Kanakmal v. Udai Chand'', AIR 1951 Ajmer 64 (1)(A) and - Dhondo Khando Vs. Waman Balwant, . These will not help the learned counsel as the question for consideration in the appeal was not discussed in those cases.

No other point has been pressed before me.

Accordingly, I see no force in this appeal and dismiss it with costs.