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B. Krishna Kumar Vs. Thakur Man Singh and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1940All86
AppellantB. Krishna Kumar
RespondentThakur Man Singh and ors.
Excerpt:
.....family may be bound by the result of suits brought by or against the manager, notwithstanding that some members of the family were not made parties thereto: in this view of the matter, krishna kumar's suit was clearly barred by the principle of res judicata......court by har sahai and has been dismissed by me. a few days after the dismissal of har sahai's suit krishna kumar, plaintiff-appellant, filed a suit for pre-emption with respect to the same property and that suit has culminated in the present appeal. krishna kumar's suit was based on the allegation that he was separate from har sahai and that he as a cosharer in the village was entitled to pre-empt the sale in favour of the vendees. the vendees contested the suit inter alia on the ground that har sahai and krishna kumar were members of a joint hindu family and that the dismissal of har sahai's suit barred the present suit.3. the trial court held that krishna kumar was separate from har sahai and on this ground overruled the plea of res judicata raised by the vendees and decreed.....
Judgment:

Iqbal Ahmad, J.

1. The question that arises for decision in the present appeal is whether the dismissal of a suit for pre-emption brought by the manager of a joint Hindu family bars a subsequent suit for pre-emption by the junior members of that family with respect to the very property which formed the subject of the earlier pre-emption suit. The decision of the question is dependent to a great extent on the answer to the question whether the refusal by the manager of a joint Hindu family to purchase the property sought to be pre-empted is or is not binding on the other members of the family. The question arises under the following circumstances:

2. On 21st June 1935 defendant 3 sold certain zamindari share in village Umarpur to defendants 1 and 2 hereinafter referred to as the vendees. It is common ground that the vendees were complete strangers to the village. Har Sahai, the elder brother of Krishna Kumar, who is the plaintiff-appellant in the present appeal, filed a suit for pre-emption against the vendees. That suit was numbered as Suit No. 689 of 1935. The vendees contested the suit inter alia on the ground that Har Sahai himself had negotiated the sale in their favour and that they had made the purchase after the refusal by Har Sahai to purchase the property. They therefore contended that Har Sahai was estopped from maintaining the suit. This contention of the vendees found favour with the Courts below and those Courts dismissed Har Sahai's suit. A second appeal was filed in this Court by Har Sahai and has been dismissed by me. A few days after the dismissal of Har Sahai's suit Krishna Kumar, plaintiff-appellant, filed a suit for pre-emption with respect to the same property and that suit has culminated in the present appeal. Krishna Kumar's suit was based on the allegation that he was separate from Har Sahai and that he as a cosharer in the village was entitled to pre-empt the sale in favour of the vendees. The vendees contested the suit inter alia on the ground that Har Sahai and Krishna Kumar were members of a joint Hindu family and that the dismissal of Har Sahai's suit barred the present suit.

3. The trial Court held that Krishna Kumar was separate from Har Sahai and on this ground overruled the plea of res judicata raised by the vendees and decreed Krishna Kumar's suit. On appeal by Krishna Kumar the lower Appellate Court held that Har Sahai and Krishna Kumar were members of a joint Hindu family and that the decision in Har Sahai's suit operated as res judicata in the present litigation. In view of this finding, the lower Appellate Court reversed the decree of the trial Court and dismissed Krishna Kumar's suit. Krishna Kumar has come up in second appeal to this Court, and it is contended on his behalf that the dismissal of Har Sahai's suit could not adversely affect his right to pre-empt the sale in favour of the vendees. It is argued that every member of a joint Hindu family is entitled in his individual capacity to maintain a suit for pre-emption, even though the claim of the manager of the family for pre-emption may have failed or even though the manager may have refused to purchase the pre-empted property. In my judgment the decision of the lower Appellate Court is correct and this appeal must fail.

4. It has been found by the lower Appellate Court that both Har Sahai and Krishna Kumar were joint and that Har Sahai was the head of the joint family at the time of the institution of Suit No. 689 of 1935. This joint family was a cosharer in village Umarpur, and the right of pre-emption sought to be exercised by Har Sahai was based on the fact that the joint family owned a share in village Umarpur. So long as the joint family continued, neither Har Sahai nor Krishna Kumar could, in view of the provisions of Hindu law, be deemed to have specified shares in the village, and it must be assumed that all the male members of that joint family were jointly interested in the share belonging to the joint family. The foundation for the pre-emption suit of Har Sahai was therefore the joint coparcenary interest possessed by the male members of the joint family. In other words, the exercise of the right of pre-emption by Har Sahai was referable to the ownership by the joint family of a certain share in village Umarpur and not to the ownership by Har Sahai of a specified share in that village. It follows that the right of pre-emption that Har Sahai wanted to enforce was a right shared by him in common with other coparceners and not a right solely vested in him. If this is so, there is no escape from the conclusion that the suit by Har Sahai was not in his individual capacity, but as a karta and representative of the joint family, and accordingly the decision in that suit binds all the members of the family including Krishna Kumar, plaintiff. It is well settled that although the manager of a joint Hindu family is not as a rule entitled to sue or liable to be sued on behalf of the family, nevertheless, in certain circumstances the whole family may be bound by the result of suits brought by or against the manager, notwithstanding that some members of the family were not made parties thereto: vide Jaddo Kunwar v. Sheo Shankar Ram (1911) 33 Ali 71.

5. The exercise of the right of pre-emption by the manager of a joint Hindu family must necessarily be on behalf of the members of the family if the right to pre-empt is founded on the ownership of a share by the family and not by the manager alone, and in such a case the manager must be deemed to be suing on behalf of the entire family. In this view of the matter, Krishna Kumar's suit was clearly barred by the principle of res judicata. The dismissal of Har Sahai's suit by the Courts below was based on the finding that Har Sahai had refused to purchase the property in dispute, and the sale in favour of the vendees was executed after his refusal It is argued on behalf of the plaintiff-appellant that the refusal by Har Sahai to purchase the property could not be binding on him (the plaintiff), and notwithstanding Har Sahai's refusal to purchase the property, the plaintiff was entitled to pre-empt the sale in favour of vendees. I find it impossible to accede to this contention. It cannot be disputed that it is open to the manager of a joint Hindu family to purchase property for that family. In other words, the manager is clothed with the right to exercise the right of purchase on behalf of the family. That being so, he must necessarily have the right to refuse to exercise that right in appropriate cases. If the purchase made by a manager is to be deemed to have been made on behalf of all the members of the family, the refusal by the manager to purchase a particular property must equally be deemed to be a refusal on behalf of all the members. I therefore hold that the refusal by the manager of a joint family to purchase certain property is binding on all the members of the joint family, and after such refusal no members of the joint family is entitled to institute a suit for pre-emption.

6. Lastly, it is argued by Mr. Pathak that Krishna Kumar was entitled in his individual capacity to pre-empt the sale in favour of the vendees, even though Har Sahai's suit was dismissed. In my judgment there is no force in this contention. The right of pre-emption vested in all the members of the joint family was the subject of adjudication in the suit filed by Har Sahai and as that suit was dismissed no member of the joint family can bring a separate suit for pre-emption. For the reasons given above, I hold that the lower Appellate Court was right in holding that the suit giving rise to the present appeal was not maintainable, and accordingly I dismiss this appeal with costs. Leave to appeal under the Letters Patent is granted.


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