KEDARNATH KANORIA Vs. KHAITAN SONS AND CO

JUDGEMENT

(1.) This is an anneal from an Order made by my learned brother G. K. Mitter. J., in suit No. 1252 of 1948. The, suit was originally instituted, in the name of Surajmull Hanumandas, claiming the price of: goods sold and delivered to the defendant. By an order dated 16-1-1950, the plaint was amended by substituting the name of Hanumandas Kanoria the then karta of the joint family business carried on under the name and style of Surajmull Harmmandas, as plaintiff. On or about 1-11-1951, the joint family, of which Hanumandas was the karta, was disrupted and thereupon Hanumandas and one Subhkaran Kanoria and one Biswanath Kanoria became the kartas of the three branches of the family and as such became entitled to the business of Surajmull Hanumandas and the assets thereof including the claim against the defendant firm. On or about 24-7-1952, Hanumandas Kanoria died leaving Kedarnath as Karta of his branch of the family. On 27-7-1958, an application was made on behalf of Kedarnath Kanoria, Subhkaran Kanoria and Riswanath Kanoria for an amendment of the plaint. The application, though in form an application for amendment of the plaint, was in substance one for substitution of the petitioners as plaintiffs and for consequential amendment of the plaint and has been treated as such. G.K. Mitter, J., referred to the decision in Ganeshmal v. Nagraj Surana, 88 Cal LJ 271 : (AIR 1953 Gal 294), in which Banerjee, J., held that when during the pendency of a suit, the karta, who filed the suit, dies, the next karta can apply to be brought on the record, there being no question of abatement of the suit, G. K. Mitter, J., then pointed out that in the instant case the application had been made! more than three years after the death of the karta Hanumandas and also more than three years after the disruption of the family. Ha held that there clearly was some devolution or creation of interest within the meaning of Order XXII, Rule 10, of the Code of Civil Procedure and that the application before him fell under Order XXII, Rule 10 or Order I, Rule 10, of the Code of Civil Procedure. He then observed that the only question before him was whether the application was hit by Article 181 of the Limitation Act. He thereupon dismissed the application. Although, he docs not say so clearly, it appears that he must have dismissed the application on the ground that the application was tarred by limitation.

(2.) I am inclined to agree with G. K. Mitter, J., that upon disruption of the joint family there was some sort of devolution or creation or interest within the meaning of Order XXII, Rule 10, of the Code of Civil Procedure. Hanumandas was and the applicants are governed by the Mitakshara School of Hindu Law. So long as the joint family was undivided, there was community of interest and no member of the family had any defined share in the coparcenary properties. Upon partition and disruption of the joint family, there was severance of the joint status and the members of the family came to hold the coparcenary properties in defined shares and as separated owners. In the Mitakshara School of Hindu Law partition consists in defining the shares and actual partition by metes and bounds is not necessary.

(3.) Mr. Bhabhra on behalf of the appellants contended that, in the circumstances, the application for substitution of the applicants is not barred by the law of limitation. I am inclined to agree with Mr. Rhabhra that the right of an assignee pendente lite to apply for leave to continue a pending suit and to be added as a party accrues from day to day and that if the suit had not abated on the date of the application, it would not have been barred by limitation. The question still remains whether the suit has abated and if so, whether the application is maintainable.