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Raja Ram Vs. Gopi Nath and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1931All721
AppellantRaja Ram
RespondentGopi Nath and ors.
Excerpt:
- .....mother as their guardian and l item. ultimately the plaintiff applied to the court to exempt these minor defendants from the suit and in concurrence with the defendants submitted the dispute to arbitration. there were controversial questions of fact involved in the case. the arbitrator held that the plaintiff's father was a mere benamidar and that the real owner of the mortgage deed had 'been paid the amount due on the mortgage. he accordingly dismissed the suit.2. an application was filed on behalf of the minor defendants praying that inasmuch as they were necessary parties to the suit they should not have been exempted from the suit and that the award without their consent-was invalid. the lower court has acceded to this contention.3. there is no doubt that the setting aside of the.....
Judgment:

Sulaiman, Ag. C.J.

1. This is a civil revision from an order superseding an arbitration. A suit was brought on the basis of a mortgage deed executed in favour of the deceased father of the plaintiff and certain pro-forma defendants who were minors. They were represented by their mother as their guardian and l item. Ultimately the plaintiff applied to the Court to exempt these minor defendants from the suit and in concurrence with the defendants submitted the dispute to arbitration. There were controversial questions of fact involved in the case. The arbitrator held that the plaintiff's father was a mere benamidar and that the real owner of the mortgage deed had 'been paid the amount due on the mortgage. He accordingly dismissed the suit.

2. An application was filed on behalf of the minor defendants praying that inasmuch as they were necessary parties to the suit they should not have been exempted from the suit and that the award without their consent-was invalid. The lower Court has acceded to this contention.

3. There is no doubt that the setting aside of the award and the supersession of the arbitration proceeding amounted to a termination of one proceeding in the suit, and that revision under Section 115 is entertainable because the case has been decided within the meaning of that section.

4. It seems to us that the plaintiff had merely by way of precaution impleaded his minor brothers because he was bringing the suit on a certified copy on the last day of limitation. There was neither any express affirmation nor denial that he was the manager of the joint Hindu family, but there was an allegation that they were members of one joint Hindu family, The mortgage deed sued upon was also claimed to be part of the joint family property. The plaintiff is admittedly the sole adult member of the family, the other male members being minors.

5. The plaintiff being the sole adult member was entitled to act as the manager of the family and as its karta could maintain the suit in his own name without impleading the minor members of his family. Although the family had an interest in the mortgage-deed, the members of the family had no independent and separate interest or any definite share in it. The minors were only pro-forma defendants to the suit. It was therefore open to the plaintiff to exempt them from the suit and take the whole responsibility upon himself. This he did and the Court acceded to his request and passed an order directing that the names of the minors should be struck off from the record. After that the plaintiff was competent to refer the dispute to arbitration. The award is binding on the plaintiff and the Court has acted improperly in superseding it.

6. The minor defendants are no longer parties to the suit except through the plaintiff and they have no independent right to get the arbitration superseded when the plaintiff, their manager, himself agreed to refer the dispute to arbitration. We accordingly allow this application, and setting aside the order of the Court below pass a decree in terms of the award. The applicant will have his costs from the minor respondents,


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