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Dharup Raj Misir and anr. Vs. Ram Audhesh Misir and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1935All452; 157Ind.Cas.928
AppellantDharup Raj Misir and anr.
RespondentRam Audhesh Misir and ors.
Excerpt:
.....as well as in a fit of anger and was incapable of understanding his affairs when he referred the suit to shubkaran. if this proposition is correct, there can be no good reason why the manager should cease to represent the family when the family has to institute or defend a suit in a court of justice. 549, where in a suit for sale on a mortgage the defendants mortgagors were the managing members of a joint hindu family, who in that capacity had purchased the mortgaged property, it was held that the family was sufficiently represented by the managing members and that the suit would not fail by reason of the non-joinder of the other members of the family. it was further held that an award following on a reference made by a hindu father is binding on his sons unless it be shown that the..........of any drug nor angry.2. the first point for consideration in this case is whether a father of a joint hindu family can represent his sons and other members of his family in a suit. it is a general rule of hindu law that the manager represents the family in all transactions with the outer world provided these transactions are family matters. indeed, if it were not so it is difficult to understand how the affairs of the family could be carried on. if this proposition is correct, there can be no good reason why the manager should cease to represent the family when the family has to institute or defend a suit in a court of justice. in the full bench case of hori lal v. nimman kunwar (1912) 34 all. 549, where in a suit for sale on a mortgage the defendants mortgagors were the managing.....
Judgment:

Ganga Nath, J.

1. This is a plaintiff's appeal and arises out of a suit brought by them against the defendants-respondents for a declaration that decree No, 225 of 1930 of the Court of the Additional Munsif of Jaunpur, dated 17th December 1930, was not binding on them. The property which was in dispute in suit No. 225 of 1930, in which the decree in, dispute was passed had been purchased by the father of the defendant Ram Audhesh for Rs. 200 in 1904 in his own name. A suit was brought by Ram Audesh against the father of the plaintiffs for a declaration that the property in dispute belonged to him (Ram Audesh) and that the defendants had no right in it. The parties referred the suit to one Shubkaran and the decree was passed on the statement of the referee (Shubkaran). The plaintiffs brought this suit on the allegation that their father was under the influence of bhang as well as in a fit of anger and was incapable of understanding his affairs when he referred the suit to Shubkaran. The suit has been dismissed by the Courts below on the finding that the decree is binding on the plaintiffs as the decree has not been obtained by any fraud or mis-representation. It was also found that their father was neither under the influence of any drug nor angry.

2. The first point for consideration in this case is whether a father of a joint Hindu family can represent his sons and other members of his family in a suit. It is a general rule of Hindu law that the manager represents the family in all transactions with the outer world provided these transactions are family matters. Indeed, if it were not so it is difficult to understand how the affairs of the family could be carried on. If this proposition is correct, there can be no good reason why the manager should cease to represent the family when the family has to institute or defend a suit in a Court of Justice. In the Full Bench case of Hori Lal v. Nimman Kunwar (1912) 34 All. 549, where in a suit for sale on a mortgage the defendants mortgagors were the managing members of a joint Hindu family, who in that capacity had purchased the mortgaged property, it was held that the family was sufficiently represented by the managing members and that the suit would not fail by reason of the non-joinder of the other members of the family.

3. It being so, the next question is in which cases can members of a joint Hindu family challenge consent or compromise decree obtained by or passed against the manager of the family. All the cases so far decided show that such a decree can be challenged only in the case of fraud or misrepresentation. In Pitam Singh v. Ujagar Singh (1875-78) 1 All. 651, in March 1867, J sued for possession of a moiety of the share originally held by B's widow, then deceased, and for a declaration of his right to a moiety of the share held originally by D's widow. In June 1867, the parties to the suit effected a compromise agreeing to divide the estate into four lots on certain conditions, a decree was accordingly passed in the terms of the compromise. K. J's son, sued in 1876 in his father's life-time, to obtain the same relief as his father had sought in 1867. and a declaration that the arrangement effected by the compromise and the decree was ineffectual. It was held that, assuming that the estate was joint until 1867 K was, in the absence of fraud, bound by the compromise entered into by his father and his suit was not maintainable. It is also competent to the father of a joint Hindu family in his capacity of managing member of the family to refer disputes to arbitration and the award made on such a reference, if in other respects valid, will be binding on the sons. In Jagan Nath v. Mannu Lal (1894) 16 All. 231, the respondent and his father formed a joint Hindu family of which the father was the manager. It was observed that the father represented the family as such manager and in the absence of fraud or collusion which had not even been suggested in that case, his acts were binding ion the other members of the family: Pitam Singh v. Ujagar Singh (1875-78) 1 All. 651, referred to above was followed.

4. Similarly in Guran Ditta v. Pokhar Ram 1927 Lah. 362, it. was held that it was really not necessary to implead the sons as parties, as being members of a joint Hindu family with the original defendants they were effect tively represented by the latter and would have been bound by the result of the litigation. It was further held that an award following on a reference made by a Hindu father is binding on his sons unless it be shown that the father's act in referring the suit to arbitration was tainted with fraud or collusion or was otherwise done in bad faith. The learned Counsel for the appellants has relied on Timmappaya v. Lakshminarayana (1883) 6 Mad. 284. This case does not, apply to the present case because that was a case of partition of an undivided family and it was held that no decree could be properly arrived at in such a suit without joining all the co-parceners. Moreover as against this case the Full Bench ruling of our own High Court is binding. The other case relied on by the learned Counsel is Mangali Pershad v. Babu Ram 1929 All. 365. That was a case of relinquishment of right of redemption without any legal necessity and benefit to the family. The relinquishment was held not to be binding on the sons while in the present case no question of relinquishment of any property belonging to the plaintiffs arises. The third case relied on by the learned Counsel is Amit Narayan Singh v. Gaya Singh 1917 P.C. 95. This case relates to the contingent right of a reversioner before it materialised. There it was held that a Hindu reversioner has no right or interest in praesenti in the property which the female owner holds for her life. Until it vests in him on her death, should be survive her, be has nothing to assign or to relinquish or even to transmit to his heirs. His right becomes concrete only on her demise, until then it is a mere 'spes successions.' His guardian if he happens to be a minor, cannot bargain with it on his behalf, or bind him by any contractual engagement in respect thereof.

5. The arguments of the learned Counsel for the appellants have been based on the assumption that the property, in dispute was a part of the joint family property. It was not so. The property was claimed, by the defendant as his own. self-acquired property. The branches of the parties had separated long before the property was acquired. As already stated the property then in dispute was acquired by the father of the present defendant in his own name. The claim asserted by the plaintiffs' father in that suit was only a doubtful one. There was no case of any alienation of or relinquishment of any rights in any joint family property in which the plaintiffs had any right. The concurrent finding of both the Court is below is that there was no collusion, fraud or misrepresentation. The decree is therefore binding on the parties. There is no force in the appeal. It is therefore ordered that the appeal be dismissed with costs. Permission to file a Letters Patent appeal is rejected.


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