MUNICIPAL COUNCIL, MANDSAUR versus FAKIRCHAND AND ANR.

Citation: [1997] 1 S.C.R. 1007 · Decided: 06-02-1997 · Supreme Court of India · Bench: G.N. RAY · Disposal: Dismissed

Judgment (excerpt)

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MUNICIPAL COUNCIL, MANDSAUR 
A 
v. 
FAKIRCHAND AND ANR. 
FEBRUARY, 6, 1997 
[G.N. RAY AND G.T. NANAVATI, JJ.] 
B 
Code of Civil Procedure, 1908 : 
c 
Appeal-Abatement for not bringing legal representatives on 
recor~Suit filed by co-owners seeking pennanent injunction against appel-
lant-Municipality-Suit decreed by Trial Court-Appeal pref erred by 
Municipality-Death of the co-owner during pendency of ap-
peal-Municipality not bringing on record legal representatives of deceased 
co-owner--Consequently High Court holding that appeal stood abate~Ap­
peal preferred by Municipality before Supreme Court-Held from the plaint it 
cannot be definitely held that property was coparcenery property which could D 
be represented by a Karta--Assumi11g it was coparcenery property there was 
nothing to suggest that any member was acting as Karta--On the other hand 
it was clear that plaintiffs i11tended to exercise their right as co-owners of 
property a11d have 11ot authorised anyo11e to act as Karta-Held in such 
circumstances order of High Court was not erroneous. 
CIVIL APPELLATE JURISDICTION : Civil appeal No. 3012 {N) 
of 1982. 
From the Judgment and Order dated 31.8.79 of the Madhya Pradesh 
High Court in S.A. No., 115 of 1968. 
S.K. Gambhir for the Appellant. 
Dr. N.M. Ghatate and S.V.Deshpande for the Respondents. 
The following Order of the Court was delivered : 
Delay condoned. 
E 
F 
G 
-""\ 
Application for amendment in substitution application is allowed. 
The short question that arose for decision in this appeal is whether 
the High Court has correctly decided by the impugned judgment in S.A. H 
1007 
1008 
SUPREME COURT REPORTS 
[1997] 1 S.C.R. 
A No. 115 of 1968 that the appeal preferred by the appellant-Municipal 
Council, Mandsaur stood abated in view of the fact that legal repre-
sentatives of one of the co-owners were not brought on record when the 
appeal was pending before the lower appellate court. 
It may be stated here that initially three plaintiffs being brothers 
B claiming to be the owners of the joint Hindu family property, filed a suit 
against Municipai Council, Mandsaur for a permanent injunction by assert-
ing their title to the property. Such suit was_ decreed by the trial court and 
the Municipality thereafter preferred an appeal before the lower appellate 
court. During the pendency of such appeiil, one of the three brothers had 
C died. The Municipality did not bring the heirs and legal representatives of 
the deceased brother on record despite knowledge of such death put made 
an application that the name of the deceased brother should be deleted 
from the array of parties. The question thereafter was raised by the 
remaining plaintiffs that the appeal had abated as a whofe because the heirs 
D and legal representatives of one of the co-owners had not been brought on 
record. Such contention has been upheld by the impugned decision. 
Mr. S.K. Gambhir, the learned counsel appearing for the appellant 
has: contended before us that since in the plaint the plaintiffs had stated 
that the property was a joint Hindu family property, such property must 
E be deemed to be represented by the Karta of the joint family· and as the 
eldest brother was alive, it must be held that such joint Hindu family 
property was represented by the eldest brother and in that case, there was 
no question of abatement of the appeal as a whole 
p 
We are however unable to accept such contention of Mr. Gambhir 
for the reason that from the statement made in the plaint it cannot be 
definitely held that the property was coparceners property which could be 
represented by a karta. It has been alleged in the plaint that after the death 
of the father, all the three brothers became owners of the said joint Hindu 
family property. It may be indicated here that if it was a coparcenery 
G property then the sons would have been coparceners even before the death 
of the father and there was no necessity to wait till the death of the father 
t~ get ownership of the property. The averments in the plaint really means 
that the disputed property was the undivided property of the said three 
joint o\vners who had inherited the father's interest after his death. That 
H apart, even it is assumed that it was coparcenery property there is nothing 
.( 
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MUNICIPAL COUNCIL, MANDSAUR v. FAKIRCHAND 
1009 
on record to indicate that any one member or the eldest male member of A 
the family was acting as a Karta of the joint fami

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