HAZARILAL HARIRAM Vs. NATHMAL CHAMPALAL

JUDGEMENT

(1.) THIS is a plaintiffs' appeal against the reversing decree of the lower appeal Court by which their suit for a declaration that the disputed house is the joint family property of themselves and the defendant No. 2, that the decree for pre -emption, which the defendant No. 1 obtained against the plaintiff No. 2 and the defendant No. 2 in Civil Suit No. 92 of 1947 dated 10th April 1950 does not bind the plaintiffs and that the defendant No. 1 is disentitled to execute that decree. 1. Hazarilal (plaintiff No. 1) and his two sons, Sardarmal (plaintiff No. 2) and Bagmal (defendant No. 2) are members of a Hindu joint family. By a sale deed dated 5th August 1947, the disputed house was acquired in the names of Sardarmal and Bagmal. Nathmal (defendant No. 1) filed Civil Suit No. 92 of 1947 against them and obtained a decree for pre -emption which was affirmed in two successive appeals.

(2.) HAZARILAL and Sardarmal have assailed the decree in the pre -emption suit mainly on two grounds. The one is that the disputed house was acquired for the joint family with joint family fund and Hazarilal is, therefore, a joint owner of the house. Since he was not made a party to the pre -emption suit, the decree obtained therein does not bind him. The other ground is that throughout the proceedings in the pre -emption suit, Sardarmal was a minor and was not represented by any guardian -ad litem because be was fraudulently shown to have attained majority. In consequence, the decree is a nullity.

(3.) THE two Courts below have found that the plaintiff No. 2 was a minor on the date on which the pre -emption suit was finally decided. Since he was a defendant in that suit and a guardian -ad litem was admittedly not appointed to represent him at any stage, the decree passed against him must be regarded as a nullity. Since the lower Courts have found that the disputed house was acquired with the aid of joint family fund for the joint family of the plaintiffs and the defendant No. 2, the question is whether, in the pre -emption suit, the defendant No. 2, who has been held to be the karta of the family, acted on behalf of the minor plaintiff No. 2 in his interest and also with the assent of the plaintiff No. 2. Only when it is alleged and proved that the defendant No. 2 acted in that manner could the decree in the pre -emption suit bind the other two members of the family: Lingangowda v. Basangowda AIR 1927 PC 56 : 54 IA 122. In this connexion, I may also notice three other principles which are equally well established. The consent of the adult members need not be express and may be implied from conduct and other circumstances of the case. It is also not necessary that the manager, who is sued in a representative capacity, should he described as such in the pleadings and that fact can be established by other evidence including the record of the suit. Finally, the fact that, besides the manager, some other members of the family were added as parties will not necessarily lead to the conclusion that the manager was not sued in a representative capacity. But the rule in the Privy Council case will not apply when a decree is obtained against individual members of the joint family as such.