DEOKINANDAN PRASAD Vs. DEOKI KUMAR

JUDGEMENT

(1.) The appellant sued for recovery of possession of certain property. The judgment-debtors were the karta and members of a joint Hindu family. In execution of the decree obtained in that suit the plaintiff himself purchased the property. An application was then made by the karta under Order 21, Rule 90, to have the sale set aside on the ground of irregularity in the condition of the sale and inadequacy of price. That matter was compromised between the karta and the auction-purchaser on 9 May 1931, it being agreed between them that if the judgment-debtors paid the decretal amount by 3 August 1931, the sale would be set aside, and in the absence of such payment, the sale would stand confirmed. The amount was not paid and the sale was in due course confirmed on 19th September 1931.

(2.) On 6 June 1932 another application under Order 21, Rule 90, was made by another member of the family, Devaki Kumar, alleging that she first heard of the sale on 4 June 1932. The Court below has found as a fact that Devaki was living in the same house as the karta of the family at the time when the latter made his application under Rule 90 and therefore she must have had notice of the previous application and of the sale. He has held however that all the provisions of Rule 54 were not complied with and consequently the sale was void. In my view the effect of the application of the karta of the family in the previous application must be considered in the light of the observation of the Privy Council in 50 Bom 450 Lingangowda V/s. Basangowda 1927 PC 56 at p. 453 where their Lordships said: In the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he becomes of age, and then bring an action, or bring an action by his guardian before; and in each of these cases, the Court locks to Expl. 6, Section 11, Civil P.C., to see whether or not the leading member of the family has been acting either on behalf of minors in their interest, or, if they are majors, with the assent of the majors.

(3.) Now, in the present case, the effect of the compromise entered into by thekarta of the family was in every respect to the advantage of the family as it enabled them, in the event of their paying off the decretal amount, to get back the family property without the payment of interest subsequent to the decree. The present application was not made until more than a year after that compromise had been entered into. This delay, in my opinion, is evidence of the assent of Devaki Kumar to the arrangement entered into by the karta. It is not stated that she was not a major at the time of the compromise. For these reasons therefore I would allow the appeal and set aside the order of the Court below. The appellant is entitled to his costs throughout. Saunders, J.