RAJESHWARI PRASAD SINGH Vs. SAHEB SINGH

JUDGEMENT

(1.) This is a Letters Patent appeal from a judgment of a learned single Judge of this Court in a second appeal. The suit out of which the appeal arises was brought by nine plaintiffs for the recovery of possession of certain joint family property. One of the plaintiffs was a minor and during the pendency of the suit plaintiff 1, who was the senior member of the family, died. Eventually the remaining eight plaintiffs obtained a decree in their favour in the trial Court, and this decree was affirmed by the lower Appellate Court and by the learned single Judge of this Court. In these proceedings the minor plaintiff who had now become respondents, was represented by the Deputy Registrar as guardian ad litem. The minor was impleaded as one of the respondents in this Letters Patent appeal, but certain costs payable to the guardian were not paid. On 2 August, 1938 the learned Registrar ordered the appellants to deposit these costs within a period of two weeks. On 9 August 1938 it appears from an order of the Deputy Registrar that the appellants abandoned their proceedings in so far as respondents 8 to 24 were concerned. Respondent 8 was, as I have stated, the minor plaintiff who had been represented later through the learned Deputy Registrar, his guardian ad litem.

(2.) Mr. Sushil Madhav Mullick who appears on behalf of the respondents has taken a preliminary objection that this appeal is incompetent. He has argued that the decree under appeal is in favour of eight plaintiffs including respondent 8 who was a minor. The decree gave to the plaintiffs possession of family property and by abandoning their appeal as against respondent 8 the whole of the appeal is bound to fail. Reliance has been placed upon the case in Dharanjit Narayan Singh V/s. Chandeshwar Prosad Narayan Singh 11 C.W.N. 504. In that case during the pendency of an appeal against a decree setting aside the sale of a joint estate for arrears of revenue, two of the plaintiffs-respondents died and there was no application for substitution of the heirs of the deceased respondents, the right to sue not surviving against the other respondents. It was held that the appeal abated inasmuch as the decree could not be reversed without the representative of the deceased being placed on the record. It was further held that under no circumstances could the decree be affirmed as to the unascertained shares of some joint share-holders and reversed as to the unascertained shares of the other joint share-holders. Mr. Mullick has argued that there is no distinction in principle between the Calcutta case and the case now before us. In my view this preliminary objection is well founded and must be sustained. The decree was a decree in favour of eight members of a joint family granting them possession of certain joint family property. If this appeal could proceed against the remaining seven plaintiffs, it might be that the decree would be reversed as to the unascertained shares of seven of the members of the family and remain unaffected as against the unascertained share of the minor plaintiff 8. Such a position cannot be allowed, and that being so, I must hold that the appeal is incompetent as against the remaining seven respondents.

(3.) Dr. Dwarka Nath Mitter who appears on behalf of the appellants has contended in the first place that the abandonment of the appeal in so far as it was directed against respondent 8 in no way affects the matter. Plaintiff 1 was described in the plaint as the karta of the family and undoubtedly he could have brought these proceedings on behalf of the family without any of the other members being added as co-plaintiffs. Plaintiff 1 died, but the new karta was also amongst the plaintiffs. At the time the appeal against respondent 8 was given up the name of the karta of the family Was on the record, and it is contended that such being the case, the minor respondent was still represented though in terms the proceedings had been given up against him. In my view as the decree was in terms in favour of eight plaintiffs including respondent 8, it was essential that the eight of them should have been impleaded. Where a decree is obtained in the names of the individual members of a joint family, then the question of representation does not arise. Any appeal against such a decree must be brought against all the persons in whose name the decree stands. In the present case it was, in my view, essential that the appeal should have been continued against the eight plaintiffs and the result of giving up the appeal against one of them is that the appeal cannot be continued against the remainder.