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Naranji Vasanji Vs. Moti Govanji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 209 of 1906
Judge
Reported in(1907)9BOMLR1126
AppellantNaranji Vasanji
RespondentMoti Govanji
Excerpt:
hindu law-joint family -suit on behalf of the family-all co-parceners must join-practice.;where there are one or more member of a joint hindu family filing a suit in respect of the property of that family it is essential all the persons who compose the family should be joined as party-plaintiffs. - .....16 of the plaint puts forth their case. there they say ' all of us were members of a joint hindu family living in union in every respect. and while living in union govan nathaji and laloo govanji died. the deceased laloo has no issue; therefore his right, title and interest in the debt in suit have come to an end and according to the rule of survivorship we plaintiffs alone have become owners of the debt in suit; therefore we have brought the suit in our names. '4. now one of the defences raised by the defendant was that the minor ought to have been added as a party-plaintiff, but the plaintiffs declined to add him as a party-plaintiff and they went to trial on their plaint formulated in the way that we have stated above.5. in addition to that it appears that one of the.....
Judgment:

L.P. Russell, Acting C.J.

1. This suit was filed by the two plaintiffs who are bankers against the original defendant who had done business as a pleader for the ancestral firm which originally comprised the plaintiff's father and the two plaintiffs themselves.

2. Subsequently, however, a minor son was born to one of the plaintiffs.

3. The suit was filed by the two plaintiffs, their father being dead, to recover a sum including principal and interest of over Rs. 2.000 from the defendant, a pleader and paragraph 16 of the plaint puts forth their case. There they say ' all of us were members of a joint Hindu family living in union in every respect. And while living in union Govan Nathaji and Laloo Govanji died. The deceased Laloo has no issue; therefore his right, title and interest in the debt in suit have come to an end and according to the rule of survivorship we plaintiffs alone have become owners of the debt in suit; therefore we have brought the suit in our names. '

4. Now one of the defences raised by the defendant was that the minor ought to have been added as a party-plaintiff, but the plaintiffs declined to add him as a party-plaintiff and they went to trial on their plaint formulated in the way that we have stated above.

5. In addition to that it appears that one of the plaintiffs in his deposition says ' Thakore who is the minor is my son and he has no right whatever in the money herein as long as I am alive.'

6. Therefore we find in the first place that one of the plaintiffs in his deposition and both the plaintiffs in their plaint disclaim all interest of this minor son in the moneys in the suit herein.

7. Now, upon the authorities of which a very large number has been cited (and no doubt it would be very difficult indeed to reconcile them altogether) and more especially upon two of the cases viz., Kalidas Kevaldas v. Nathu BhagvanI L R (1883) 7 Bom. 217 which was adopted in Hari Gopal v. Gokaldas Kushabashet I L R (1887) 12 Bom. 158 it appears to us as established in Bombay at all events, that where there are one or more members of an ancestral family filing a suit in respect of the property of that family it is essential all the persons who compose the family should be joined as party-plaintiffs; and in the latest case on the subject, i.e., in Kashinath Chimnaji v. Ghimnaji Sadashiv I L R (1906) 30 Bom. 477 : 8 Bom. L. R. 268, Mr. Justice Scott on the, original side has laid it down that the same principle applies on the original side of this Court. We are therefore of opinion that taking into consideration the essential characteristic of a Hindu family this must be so. The Hindu ancestral family comprises so many members or 'personce' all of which combine or constitute one 'persona ' i. e. the family and therefore if one of these ' personce ' is left out the ultimate ' persona ' is deficient during the suit as regards one of its members the aggregate of whom go to constitute it.

8. Of course we naturally are somewhat reluctant to reverse the judgment of such an experienced Hindu lawyer as the Judge O the lower appellate Court who tried this case, but we feel that he has really decided it more from the point of view of the personal feelings of a Hindu gentleman with regard to the position of the father qua the minor son rather than according to the recognized rules of this Court with regard to, procedure, such as are laid down in the Civil Procedure Code, to which as far as we can understand his attention was not drawn.

9. The result, therefore, is that we must reverse the decree of the lower appellate Court, but taking into consideration the nature of this case we direct that each party should bear their own costs.

10. The suit is dismissed. Parties to bear their own costs.


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