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Hari Gopal Vs. Gokaldas Kushaba Shet - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Judge
Reported in(1888)ILR12Bom158
AppellantHari Gopal
RespondentGokaldas Kushaba Shet
Excerpt:
hindu law - joint family--manager--parties to suit--practice--suit by manager alone--co-parceners made parties on objection by defendant--civil procedure code (act xiv of 1882), section 30--amendment of pleadings--plaint amended in second appeal by adding parties. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his..........plaintiff's uncle and minor brother placed on the record either as co-plaintiffs or defendants.2. we think, however, that under the circumstances of this case, and having regard to the state of the law on the subject, the plaintiff should be, and we hereby direct that he be allowed to amend his plaint by making the other members of the family mentioned by the defendant parties to the suit, and reverse the decree of the court below for that purpose. such amendment to be made within a month of the papers being received by the court of first instance; but, in default, the decree of the lower court of appeal is to stand confirmed. in any case, the plaintiff must pay the defendant his costs up to the present time.
Judgment:

Charles Sargent, C.J.

1. The plaintiff in this case sued in ejectment as the manager of the undivided family of the deceased Gopal Yadneshwar, to recover possession of the land mentioned in the plaint. The defendant by his written statement took the objection that the other members of the family, mentioning more particularly a minor brother and uncle of plaintiff, should be made parties to the suit. An issue was framed, raising the question whether plaintiff could sue alone. The Subordinate Judge held that the manager of a Hindu family could institute and defend suits on behalf of the family. The lower Court of appeal held that he could not do so without conforming to the provisions of Section 30 of the Code. That section enables (with the permission of the Court) one of several persons having the same interest in a suit to sue on behalf of all, by giving notice through the Court to all the parties concerned, in manner therein mentioned, and where the party suing does not, in the eye of the law, represent all the persons intended for the purpose of suing and being sued; but here it is contended by the plaintiff, and was so held by the Subordinate Judge, that, as the manager of an undivided Hindu family, he fully represents the other members of the family for the purpose of litigation, and that the suit is properly framed by the mere statement contained in it that plaintiff sues as manager of the family. However this may be as between the members of the family, it is plain that the right of a plaintiff to assume the character of manager, and to sue in that character, raises a question of fact and law which varies as the other members of the family are minors or adults, whose assent is usually required in important matters, and we think, therefore, that the defendant is always entitled, when the objection is taken at an early stage, to have the other members of the family, when they are known, placed on the record to insure him against the possibility of the plaintiff's acting without authority. Moreover, the reasons which are given in Kalidas Kevaldas v. Nathu Bhagvan I.L.R., 7 Bom., 217 for requiring the other members of the family to be made parties, are equally applicable, whether or no the plaintiff describes himself in the plaint as suing as manager of the family. On both grounds we think, therefore, that the defendant was entitled to have the plaintiff's uncle and minor brother placed on the record either as co-plaintiffs or defendants.

2. We think, however, that under the circumstances of this case, and having regard to the state of the law on the subject, the plaintiff should be, and we hereby direct that he be allowed to amend his plaint by making the other members of the family mentioned by the defendant parties to the suit, and reverse the decree of the Court below for that purpose. Such amendment to be made within a month of the papers being received by the Court of first instance; but, in default, the decree of the lower Court of appeal is to stand confirmed. In any case, the plaintiff must pay the defendant his costs up to the present time.


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