LexDEVIDAS AND OTHERS versus SHRISHAILAPPA AND OTHERS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
896
SUPHEME COURT REPORTS
[1961]
1961
and that in our opinion is the effect of the proviso to
Commissio"" of s. 30(1) read with sub-s. (2) of s. 30 of the Act. It is
Income-tax,
unnecessary therefore to refer to the two cases referred
Bombay
to by the High Court, i.e., Raja of Venkatagiri v. Com·
. •·.
missioner of Income-tax (1) and Kamdar Brothers v. Con,
M/s.F•lmistanLtd.missioner of Income-tax(').
Ka-;::; J.
The appeal is without force and is therefore dis-
missed with costs.
F~bruary 2I.
Appeal dismissed.
DEVIDAS AND OTHERS
v.
SHRISHAILAPPA AND OTHERS.
(J. L. KAPUR, M. HIDAYATULLAH and J. c. SHAH, JJ.)
Mortgage-Non-joinder of parties-Proper, but not necessary,
party added beyond limitatior>-Suit instituted on behalf of joint
family-Plaintiff not described as manager in the plaint-M ainlain-
ability of suit-Indian Limitation Act, z908 (9 of I908), s. zz.
The manager of an undivided Hindu family consisting of
himself, his brother and their step-mother •.. instituted a suit for
recovery of the amount due under a mortgage belonging to the
family.
The step-mother who was interested in the mortgagee
right was not made a party to the suit. Though the manager
(the first plaintiff) did not describe himself as the manager in the
plaint, the allegations in the plaint showed that the suit was filed
on behalf of the joint family. No objection as to non-joinder was
raised in the trial court, but when the appeal was pending in the
High Court the step-mother was added as a party on her applica-
tion .. The contesting defendants pleaded that as all persons
having an interest in the mortgage security were not joined as
parties within the period of limitation prescribed for a suit to
enforce the mortgage, and the first plaintiff did not, in any Gase,
purport to institute the suit in his capacity as the manager, the
suit must fail.
Held: (I) that the failure to join a per.son who is a proper
but not a necessary party does not affect the maintainability of
the suit nor does it invite the application of s. 22 of the Indian
Limitation Act, 1908 ;
(2) that the question whether a suit was instituted by the
manager of an undivided Hindu family in his personal capacity
or as representing the family depends upon the circumstances of
each case and that the failure of the plaintiff to describe himself
as the manager in the plaint is not decisive of the question.
(1) (1955) 28 l.T.R. 189
(2) (1955127 l.T.R. 176,
3 S.C.R.
SUPREME COURT REPORTS
897
In the present case, the step-mother was not a necessary
party, and the facts showed that the suit was instituted by the
first plaintiff in his capacity as manager. Accordingly, the suit
was maintainable.
Guruvayya Gowda and Others v. Daltatraya Anant and Others
(1904) I.L.R. 28 Born. rr, referred to.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
112of1957.
Appeal by special leave from the judgment and
decree dated Januarv 28, 1954, of the Bombay High
Comt in :First Appeal No. 69 of 1950.
Pur8hottam T1ikamdM and Nanni! Lal for .the
appellants.
C. K. Daphtary, Solicitor.General of India, S. N.
Andley, J.B. Dadachanji and P. L. Vohra for respond-
ents Nos. 1 and 2.
B. R. L. Iyengar for respondents Nos. 6 to 9.
1961. February 21. The ,Judgment of the Court was
delivered by
SHAH, J.-The genealogy which sets out the
relationship bet\\een some of the principal parties in
this litigation is as follows:
I
Balappa
I
I
I
Rachappa
Ba!!a\inga ppa
deft. 9
(adopted by
l
Basavanappa)
Chanamalappa
I
Malappa
(deft. 5)
I
Chanabasappa
(deft, 6)
Mallappa
I
I
Shivappa
I
I
I
Basavanappa
I
Basalingappa
(Parvatewa
respdt. 12)
I
I Shrisbailappa
(plaintiff 1)
I
I
Balappa
Basavanappa
(adopted by
(deft. 7)
Cbanamalappa
I
Chanamalappa
I
Balappa
I
Sbivappa
(plaintiff :z)
Shrishadappa
(deft. 8)
Mallappa had four sons Bala.ppa, Shiva.ppa, Basa-
va.nappa. and Chanamalappa. These four sons formed
a. joint Hindu family. Chanamalappa separated him-
self from the joint family sometime in the year 1909
and his other three brothers continued to remain
joint. Shivappa was the Manager of the joint family
DeuidtJs
v.
SllrJshailappa
Shah ].
· r96r
Devidas
v.
·Shrishailappa
Shah I
898
StJPREME COURT REPORTS
[1961]
after the death of Mallappa. Shivappa died in 1928
and Rachappa became the Manager of the family.
The joint family possessed lands in seventeen villages
and many houses in Khanapur. The famiExcerpt shown. Read the full judgment & AI analysis in Lexace.