AWADH BIHARI PRASAD Vs. JHAMAN MAHTON

JUDGEMENT

(1.) This is an application for leave to appeal to the Supreme Court on behalf of the plaintiff under rticle 133 of the Constitution.

(2.) The petitioner and his brother, since deceased, brought Title Suit No. 24/15 of 1943/1945 in the Court of the 1st Subordinate Judge, Patna, for a declaration that an 'ex parte' decree dated 19-11-1938, granted by the 2nd Subordinate Judge of Patna in Title Mortgage Suit No. 14 of 1938 and the sale in execution of that decree were fraudulent and collusive and not binding upon the plaintiffs nor on the share of the joint family properties to which the plaintiffs were entitled. There was also a prayer for recovery of possession of the properties and for ascertainment of mesne profits. A further relief was also claimed for a permanent injunction against the opposite party restraining them from taking delivery of possession over the properties in suit. The suit was contested by the opposite party and on 22-5-1946, the suit was dismissed by the Additional Subordinate Judge, Patna. The plaintiff preferred First Appeal No. 374 of 194S in the High Court against the judgment and decree of the Additional Subordinate Judge, Patna. When the appeal was heard in the High Court it was argued on behalf of the opposite party at the outset that the whole appeal had abated in view of the circumstance that respondent 1 Raghunandan Prasad and respondent 7 Sohrai Mahton were dead and no substitution had been made in their place on behalf of the appellants. It was alleged that the heirs of Sohrai Mahton were respondents 1 to 7 and also Nawalkishore Prasad, who was a coparcener of the joint family and who was not brought on the record of the case. As regards Raghunandan Prasad, it was said that his widow Mt. Parbati Devi was not substituted. This objection was upheld by a Division Bench, and the First Appeal was dismissed on the ground that the whole appeal had abated. It was held that the appeal had abated not only against respondents 1 and 7 but the entire appeal had abated since the suit was for setting aside a mortgage decree obtained by the defendants first party and for setting aside the sale in execution in course of which defendants first and second parties had purchased the mortgaged properties and obtained possession thereof.

(3.) In support of this application Mr. Janak Kishore submitted, in the first place, that it was not incumbent on the appellants to substitute the widow, Mt. Parbati Devi, in place of Raghunandan Prasad, and the High Court was erroneous in holding that the appeal had abated, either against Raghunandan Prasad or against other respondents arrayed in the appeal. The argument of learned counsel is based upon -- 'Balgajan v. Sughu Rai', AIR 1948 Pat 288 (A), in which it was held by Shearer, J. that there was no abatment of the appeal if the legal representatives of the deceased party to the appeal had concealed certain facts from the Court. In that case, during the pendency of the appeal one of the respondents died leaving behind him a widow & sons & no steps were taken to bring them on the record. The appeal was disposed of in the presence of the respondents who were allowed to prosecute the suit as the representatives of the deceased and the legal heirs did not intimate to the Court that they ought to be brought on the record. In this state of facts it was held by the High Court that there was no abatement of the appeal. The material facts of the present case are manifestly different and Mr. Janak Kishore is not certainly right in saying that the principle laid down in -- A. I. R. 1948 Pat. 288 (A)' is applicable to the present case. It was contended by learned counsel that the other members of the joint family were already on the record of the case and the interest of the widow was in fact represented by the karta of the joint family, and no question of abatement would, therefore, arise. This argument cannot possibly be accepted in view of the decision of this Court in -- 'Prahlad Das v. Dasrathi Satpathi', AIR 1940 Pat 117 (B) in which Khwaja Mohamad Noor, J. observed that "when sons and grandsons are parties to a suit, the question of their father representing them cannot possibly arise". The reason is that the suit was not brought by the petitioner against the karta of the joint family, taut the suit had been brought against the individual members of the Joint family and not in a representative capacity. It is, therefore, not open to learned counsel for the petitioner to argue that the interest of the widow of Raghunandan Prasad was represented by the other members of the joint family on the record of the case. This view is supported by--'Deonarain v. Bibi Khatoon', A. I. Rule 1949 Patna 401 (C) in which a decree was passed against A, his five sons and three grandsons, but in the execution proceeding two of the sons and the grandsons were not made parties. It was held that the father could not represent the sons and grandsons who were not made parties to the execution proceeding and they were not under the pious obligation to pay off the father's debt, and therefore their share in the properties sold in execution of the decree did not pass.