# UNION OF INDIA v. SREE RAM BOHRA AND OTHERS

- **Citation:** [1965] 2 S.C.R. 830
- **Court:** Supreme Court of India
- **Decided:** 1965-01-29
- **Case number:** Civil Appeal No. 611 of 1962
- **Bench:** Raghubar Dayal, R. S. Bachawat, V. Ramaswamy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-sree-ram-bohra-and-others-3348
- **Pages:** 7

## Headnote

Hindu Ltw-Suit by two persons representing joint Hindu familyDealh of on~Appea/ against the otMr-1/ competenl-C111le of Civil
ProcedlJ1'e (Act S of 1908), 0.22. r. 11.
A
B
The respondent and B filed a suit and obtained a decree for a certain SlllD against the appellant.
The appellant appealed to the High
Court !Jld subsequently B died.
The High Court dismissed an applicaC
lion setting aside the abatement of the appeal against B and for substitution as it was of opinion that there had been gross negligence on the
part of the appellant. When the appeal came up for hearing a preliminary
objection was raised by the respondent that the appeal had abated entirely
which was upheld by the High Court. On appeal by certificate, the appellants contended that there could be no abatement of the appeal as the
suit had been brought by the respondent and B as the Kartas of the
D
joint family and on the death of one of the Karta, the other Karla continued to represent the joint family, the real plaintiff-respondent.
HELD : The appeal against the respondent was incompetent.
When two representatives of a joint Hindu family sued and obtained
a decree in their favour for the benefit of the joint Hindu family, and an
appeal was filed against both of them as respondents representing the
joint Hindu family, the other representative would not continue to repreI:
seat the joint family on the death of one of the representatives.
[835
B-DJ
Any one of them could not represent the joint f8lD11y after the death
of the other till his authority to represent the family was confirmed by
the members of the family. [835 F-G]
The State of Punjab v. Nathu Ram, [1962] 2 S.C.R. 636, relied on.
F
CML APPELLATE JURISDICTION: Civil Appeal No. 611 of
1962.
Appeal by special leave from the judgment and decree dated
February 11, 1959, of the Patna High Court in Appeal from Original Decree No. 525 of 1951.
Bishan Narain, D. R. Prem. B. R. G. K. Achlll' and R. N.
G
Sachthey, for the appellant.
A. V. Viswanatha Sostri and K. K. Sinha, for
respondents
Nos. 1 to 5.

## Text

UNION OF INDIA
v.
SREE RAM BOHRA AND OTHERS
January 29, 1965
[RAGHUBAR DAYAL, R. S. BACHAWAT AND
V. RAMASWAMY, JJ.J
Hindu Ltw-Suit by two persons representing joint Hindu familyDealh of on~Appea/ against the otMr-1/ competenl-C111le of Civil
ProcedlJ1'e (Act S of 1908), 0.22. r. 11.
A
B
The respondent and B filed a suit and obtained a decree for a certain SlllD against the appellant.
The appellant appealed to the High
Court !Jld subsequently B died.
The High Court dismissed an applicaC
lion setting aside the abatement of the appeal against B and for substitution as it was of opinion that there had been gross negligence on the
part of the appellant. When the appeal came up for hearing a preliminary
objection was raised by the respondent that the appeal had abated entirely
which was upheld by the High Court. On appeal by certificate, the appellants contended that there could be no abatement of the appeal as the
suit had been brought by the respondent and B as the Kartas of the
D
joint family and on the death of one of the Karta, the other Karla continued to represent the joint family, the real plaintiff-respondent.
HELD : The appeal against the respondent was incompetent.
When two representatives of a joint Hindu family sued and obtained
a decree in their favour for the benefit of the joint Hindu family, and an
appeal was filed against both of them as respondents representing the
joint Hindu family, the other representative would not continue to repreI:
seat the joint family on the death of one of the representatives.
[835
B-DJ
Any one of them could not represent the joint f8lD11y after the death
of the other till his authority to represent the family was confirmed by
the members of the family. [835 F-G]
The State of Punjab v. Nathu Ram, [1962] 2 S.C.R. 636, relied on.
F
CML APPELLATE JURISDICTION: Civil Appeal No. 611 of
1962.
Appeal by special leave from the judgment and decree dated
February 11, 1959, of the Patna High Court in Appeal from Original Decree No. 525 of 1951.
Bishan Narain, D. R. Prem. B. R. G. K. Achlll' and R. N.
G
Sachthey, for the appellant.
A. V. Viswanatha Sostri and K. K. Sinha, for
respondents
Nos. 1 to 5.
The Judgment of the Court was delivered by
Raghubar Dayal J.
Bilas Rai Bohra, son of Bansidhar Bohra
and Sree Ram Bohra, son of Ganpat Ram Bohra, sued the Union
of India for the recovery of Rs. 13,448 from the defendant tor
H
•
UNION V. RAM BORRA (Dayal, /.)
831
A
compensation on account of loss and damage suffered by the plaintifts owing to non-delivery of 11 bales of cloth which had been
consigned on October 20, 1948 by M/s Ram Kishun Das Sagarmal
of Bombay to the plaintiffs under the description of M/ s Banshidhar Ganpat Rai. It was alleged in para 1 of the plaint that the
plaintiffs . carried on business in cloth and other articles in the
B name and style of M/s Bansidhar Ganpat Rai which was their
joint family trading firm governed by the Mitakshara School of
Hindu Law of which joint family the plaintiffs were the kartas
and representatives and that they sued as such.
This statement
in para 1 of the plaint was not admitted in the written statement.
C
The trial Court decreed the suit on August 29, 1951. The decree,
inter alia, said :
"It is ordered that the suit be decreed with costs
defendants do pay to the plaintiffs the sum of Rs. 13,448
with interest thereon ... "
D
The Union of India appealed to the High Court of Patna and
prayed for the setting aside of the decree and for the dismissal of
the suit with costs.
The plaintiffs-respondents were served with
notice of the appeal. Subsequently Bilas Rai Bohra died on July
24, 1957. On September 5, 1958, the Union of India presented an
application for substitution under 0. 22, r. 4 read with 0. 22, r. 11,
E
C.P.C. for setting aside the abatement and condonation of delay.
It was stated in the application that the applicant's advocate came
to know of the death of Bilas Rai Bohra, plaintiff No. 1, on May
14, 1958 when the case was on the daily list with a note to that
effect, that he promptly communicated the fact to the railway
authorities but due to the mistake of the Attacher, proper steps
P
for substitution could not be taken in time. It was further stated
that after a good deal of enquiry and efforts for three days the
date of the death of Bilas Rai Bohra and the names and addresses
of his heirs and legal representatives could be ascertained.
A
prayer was made for substituting the heirs of Bilas Rai Bohra,
G they being his sons, a widow and a daughter. Their names were
mentioned in the application.
·
This application was opposed on behalf of the heirs of Bilas
Rai Bohra. It was mentioned therein that on September 27, 1957,
an application for substitution of the heirs of Bilas Rai Bohra was
made in another ,appeal in which the Union of India was a responH
dent and that therefore the Union of India and its Advocate were
aware of the death of Bilas Rai Bohra and of the names of his
heirs .
832
SUPRBMI! COURT RBPORTS
[1965] 2 S.C.R.
On December l, 1958, the High Court dismissed the applicaA
tion for the setting aside of the abatement of the appeal against
Bilas Rai Bohra and for the substitution of the heirs as it was of
opinion that there had been gross negligence on the part of the
appellant, the Union of India, as its counsel had information about
the death of Bilas Rai Bohra at least on May 16, 1958. Tho
High Court did not feel satisfied on the facts of the case that any
B
ground had been made out for setting aside the abatement of the
appeal.
It may be mentioned here that it was not urged in the High
Court that there had been no abatement of the appeal against the
heirs and legal representatives of Bilas Rai Bohra. It could not C
have been urgM when the Union of India itself had applied for
the setting aside of the abatement and the substitution of the heirs
and legal representatives of Bilas Rai Bohra.
The appeal of the Union of India against the surviving respon0
dent, viz., Sree Ram Bohra, came up for hearing on February 11,
1959, when a prelin;linary objection was raised on behalf of the
respondent to the effect that the appeal had abated entirely as it
had abated against the heirs of plaintiff-respondent No. 1.
It
was contended for the Union of India that the two plaintiffs, viz. ..
Bilas Rai Bohra, deceased, and Sree Ram Bohra, had filed the
E
suit as kartas of the joint family which was the owner of the firm
of M / s Bansidhar Ganpat Rai and that after the death of one of
the kartas the other plaintiff who was also described in the plaintiff's suit as karta was competent to represent the family and so
there could be no question of abatement of the entire appeal.
Again, it was not contended that the appeal against the heirs of
F
Bilas Rai Bohra had not abated.
The High Court upheld the preliminary objection and held
that the appeal had become incompetent and was liable to be
dismissed. It was of opinion that even if it be taken that both
th plaintiffs had filed the suit in their capacity as kartas of the G
'Same joint family, the joint family had gained by virtue of the
appeal having abated against the heirs of Bilas Rai Bohra as the
decree passed in favour of the joint family through the representation of Bilas Rai Bohra could not be set aside and in case the
appeal was permitted to proceed against the joint family in the
presence of the other karta Sree Ram Bohra, there might be
H
occasion for the coming into existence of two inconsistent decrees.
The High Court, accordingly, dismissed the appeal. It was against
UNION v. RAM BOHRA (Dayal, J.)
833
A this order that the Union of India obtained the certificate from
the High Court under Art. 13 3 and then filed this appeal.
The sole point for decision in the appeal then is whether the
appeal of the Union of India before the High Court against the
respondent Sree Ram Bohra, respondent No. 2, was competent
B after it had abated against respondent No. l, Bilas Rai Bohra, on
account of his heirs and legal representatives being not brought
on the record. It has not been disputed for the appellant that in
case it is held that the appeal had abated against the heirs and
legal representatives of Bilas Rai Bohra, it became incompetent
against the surviving respondent alone.
The suit was filed by
c both the plaintiffs.
Both were respondents in the appeal. The
decree was a joint one, without any specification regarding the
shares of each of the decree-holders. The appeal must, therefore,
become incompetent if it has abated against one of the respondents.
D
What is really urged for the appellant is that there could be
no abatement of the appeal on the death of Sree Ram Bohra and
the omission to bring on record his heirs and representatives, as
the real plaintiff was the joint family which owned the firm Bansidhar Ganpat Rai, the consignee of the bales which were not delivered and as the suit had been brought by the two named plaintiffs as
:& the kartas of the joint family. It is said that on the death of one
of the kartas, the other .karta continued to represent the joint
family, the real plaintiff-re5pondent, and that therefore there could
not be any abatement of the appeal. We do not consider the contention sound.
·
We have not been referred to any text of Hindu Law or any
F
decided case in support of the proposition that a joint Hindu
family can have more than one .karta. The very idea of there being
two .kartas of a joint Hindu family does not appear, prima facie,
consistent with the concept of a karta.
Their describing themselves as kartas of the joint Hindu family owning the firm and
G their suing as such cannot make them kartas of· the joint Hindu
family if the Hindu Law does not contemplate the existence of
two kartas.
H
In paragraph 236 of Mulla's Hindu Law, XII Edition, is said :
"Property belonging to a joint family is ordinarily
managed by the father or other senior member for the
time being of the family. The manager of a joint family
is called karta.
8S4
SUPl.J!MB COUllT REPORTS
[1965) 2 S.C.R.
The father is in all cases naturally, and in the case of
A
minor sons necessarily, the manager of the joint family
property."
The existence of two kartas cannot lead to the smooth managoment of the property of the joint Hindu family and the other affairs
of the family in view of the powers which the karta of a joint 8
Hindu family possesses under the Hindu Law, powers which are
not restricted to only such powers which ordinarily the manager
of property of certain persons who confer authority on him to
manage the property possesses.
The karta of the joint Hindu
family is certainly the manager of the family property but undoubtedly possesses powers which the ordinary manager does not C
possess.
The karta cannot therefore be just equated with the
manager of property.
Reference was made to the case reported as Bhagwan Dayal
v. Mst. Reoti Devi('). It was stated at p. 482:
"The legal position may be stated thus : Coparcenary
is a creature of Hindu law and cannot be created by
agreement of parties eitcept in the case of reunion. It
is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate
body. The said family unit, whether the larger one or
the subordinate one, can acquire, 1ioid and dispose of
family property subject to the limitations laid down by
law. Ordinarily the manager, or by consent, express or
implied, of the members of the family, any other member
or members can carry on business or acquire property,
subject to the limitations'Jaid down by the said law, for
or on behalf of the family."
The fact that any other member or members other than the manager of the joint Hindu family, carry on business etc., on behalf
of the family, does not mean that such members who act for the
family do so as kartas of the family.
In the absence of any text of Hindu Jaw or of any previous
decision that a joint Hindu family can have two kartas we are not
prepared to express any definite opinion on the question whether
there can be two kartas of a joint Hindu family and, if there can
D
F
G
be two kartas, what would be the effect of the death of one of H
them on the maintainability of a suit brought by both of them.
(1) 11962] 3 s.c.R. 440.
UNION v. RAM BHORA (D11Yal, J.)
835
A
Two persons may look after the affairs of a joint Hindu family
on the basis of the members of the joint Hindu family clothing
them with authority to represent the family. They would be two
persons entitled to represent the family and their power to represent would depend on the terms of the authority conferred on them
by the members of the joint Hindu family. Their authority to act
B
for the family is not derived under any principle of Hindu law,
but is based on the members of the joint Hindu family conferring
certain authority on them. It cannot, therefore, be said that when
two such representatives of a joint Hindu family sue and obtain
a decree in their favour for the benefit of the joint Hindu family,
and an appeal is filed against both of them as respondents repreC
senting the joint Hindu family, the other representative would continue to represent the joint family on the death of one of the
representatives. He could not possibly do so when the authority
given by the joint Hindu family be to the effect that both of them
were to act jointly. In the absence of any knowledge about the
D
terms of authority of the two representatives, it is not possible to
urge successfully that on the death of one of the representatives,
the other representative still continued to represent the joint Hindu
family. On the death of one of the representatives, the karta of •
the family, in accordance with the principles of Hindu law, will
automatically be the person entitled to represent the joint Hindu
J:
family till such time that the family again decides to confer the
authority on specified members of the joint Hindu family to represent it. There is no material on the record to indicate the terms
and scope of the authority conferred on the two plaintiffs by the
joint Hindu family.
F
We, therefore, consider the matter in appeal on the basis that
the suit was brought by two persons as plaintiffs.
They can at
best be taken to represent the joint Hindu family which owned
that firm Bansidhar Ganpat Rai. Any one of them cannot represent the joint family after the death of the other till his authority
to represent the family is confirmed by the members of the
G family. There is no allegation or proof about such confirmation
or fresh vesting of authority in the second plaintiff, viz., Sree Ram
Bohra. For the purpose of the suit, there were two plaintiffs and
on the death of one of them it was necessary for the opposite party
to implead his heirs and legal representatives within time. It failed
to do so and therefore the appeal against those heirs and repreH
sentatives of Bilas Rai Bohra was rightly held to have abated.
1be result of such abatement makes this appeal against the other
respondent incompetent as the decree against both the respon-
836
SUPllBMB COURT llBPORTS
[196S] 2 S.C.R.
dents viz .• Bilas Rai Bohra and Sree Ram Bohra was a joint decree.
A
There was nothing in the decree to indicate for whose benefit it
was passed or in what proportions the two decree-holders were
to get the decretal amount.
The appeal against Sree Ram Bohra
was therefore incompetent.
This view is supported by the decision of this Court in The B
State of Punjab v. Nathu Ram('). It was held there that whe.n
the decree in favour of the respondents is joint and indivisible,
the appeal against the respondents other than the deceased respondent cannot be proceeded with if the appeal against the
deceased respondent has abated.
We are, therefore, of opinion that the High Court was right
C
in holding that the appeal against Sree Ram Bohra alone became
incompetent.
It has been further argued for the appellant that the High
Court should have allowed the appellant's application for setting
aside the abatement.
The High Court exercised its discretion D
judiciously, after taking into consideration the facts urged in
support of the prayer that the abatement of the appeal be set aside.
We do not find any reason to consider that the discretion was not
properly exercised. We, therefore, do not consider this a fit case
to interfere with the discretion exercised by the High Court in
this regard.
E
We, therefore, dismiss the appeal with costs.
Appeal dimiimd.
(1) [1962] 2 S.C. R. 636.