Anil K. Sen, J.
1. This is an appeal by an objector whose objection under Section 47 of the Civil P. C. has been dismissed by the learned Subordinate Judge, Darjeelins by his order dated February 28, 1967 passed in Misc. Case No. 52 of 1966. The said misc. case arose out of an execution case being Order C. Execution Case No. 21 of 1960.
2. The respondent obtained a mortgage decree by consent against a joint mitakshara family represented by the then karta thereof namely Ramrup Mistry and put the same decree into execution in the aforesaid O. C. Execution Case No. 21/60. Pending the execution, Ramrup Mistry died and the present appellant was brought on the record as the succeeding karta of the joint family. There is no dispute that the appellant is the eldest son of the deceased Ramrup Mistry and being himself one of the coparceners was the eldest male member of the family.
3. The appellant filed an objection under Section 47 of the Code raising a plea that he is not the karta of the joint family, that he alone cannot represent either the family or the other coparceners and hence the execution case cannot proceed against him as the karta of joint family and unless the other heirs and legal representatives are brought on record, the execution case should be dismissed.
4. The learned Judge overruled the said objection. On the evidence of the appellant himself, the learned Judge found that the joint family is still in existence and that there had been no severance of such a joint family. Though the appellant claimed in his evidence that he is not the karta, the learned Judge refused to accept such a claim as according to him the appellant being the eldest, male member of the joint family must be presumed to be the karta. The learned Judge further held that the appellant being one of the heirs and legal representatives and having been brought on record he could at least represent the estate.
5. Mr. Ghose appearing in support of this appeal has assailed both the conclusions of the learned Judge. He has first contended that in the absence of any evidence or finding that the appellant had been acting as a karta of the family with the consent of the other members there can be no presumption that on the death of the father, the appellant became the Karta and as such entitled to represent the joint family.
6. Secondly, he has contended that the learned Judge went wrong in thinking that one of the heirs and legal representatives can substantially represent the estate. That principle according to Mr. Ghose cannot be invoked to overrule an objection of the nature raised by the appellant at the earliest stage of the proceeding.
7. Mr. Banerjee on behalf of the respondent has contested both the points thus raised by Mr. Ghose and he supported the findings of the learned Judge. According to Mr. Banerjee on the evidence on record the learned Judge in the Court below was justified in arriving at a conclusion that on the death of Ramrup Mistry the present appellant who is the eldest of the sons could reasonably be held to be the karta of the family succeeding the father. It is more so, according to Mr. Banerjee when the appellant has failed to show that there had been any severance of the joint family or that somebody else had been acting as the karta.
8. We have carefully considered the two contentions raised by Mr. Ghose. In our opinion, there is some substance in the second point raised by Mr. Ghose. Here the objection as to not bringing on record all the heirs and legal representatives of the deceased judgment-debtor had been raised at the very outset of the execution proceeding. It is not a case where the decree or the final order had been passed in the ignorance of an heir and legal representative being left out. An objection of the present nature raised at the early stage cannot be defeated on the application of a principle that one of the legal representatives may well represent the estate under certain circumstances.
9. So far as the first point raised by Mr. Ghose is concerned, in our view, it is settled principle that on the death of the karta representing a joint family, he may be substituted either by the succeeding karta or his other heirs and legal representatives. Therefore, if the appellant be the succeeding karta of the joint family, he can well represent the family in the proceeding and can be brought on record as such. On the issue as to whether the appellant is the karta or not succeeding his father, we are of the opinion that the learned Judge is right in his conclusion that the appellant can reasonably be accepted as the succeeding karta. Though he claimed in his evidence that there was severance of the joint family, such a claim stood disproved by his cross-examination wherein he admitted that the joint family is still in existence. It is not his case that though there is a joint family still in existence there is no karta of the family acting as such and that the affairs are being looked after by all the coparceners. On the other hand, on his own evidence there are minor coparceners and there is no evidence as to whether there is any other adult male member in the family who could act as the karta. Nor is it the case of the appellant that someone else has been the karta. In such circumstances, the learned Judge was quite justified in rejecting a claim put forward by the appellant that he is not the karta and in holding that it would be reasonable to hold in the facts and circumstances that he is the karta. Mr. Ghose may be right in his contention that the seniormost male member may not necessarily be the karta and that one becomes, karta by acting as such with the consent express or implied of the other coparceners. But in our opinion, on the facts and circumstances established in the present case it could reasonably be concluded as had been concluded by the learned Judge in the Court below that the appellant had been the karta in that process. It is not correct to suggest that in the absence of any positive evidence of such acting the same cannot be inferred from other proved facts and circumstances established on evidence.
10. Strong reliance was placed by Mr. Ghose on a Bench decision of the Allahabad High Court in the case of Gangadayal v. Maniram, (1909) ILR 31 All 156. It should be noted that this decision was approved by the Privy Council in the case of Jawahir Singh v. Udai Parkash, 53 Ind App 36 : (AIR 1926 PC 16) but the point involved in this case was somewhat different. There the certificated guardian of the two Hindu minors sold certain properties belonging to the minors without the sanction of the District Judge, within three years of his attaining majority, the younger of the two sued to avoid the sale. The elder, however, had come of age several years earlier and had taken no steps to repudiate the transaction. Relying on that fact limitation was pleaded in defence to the suit and such a plea was overruled. It was held that non-avoidance of the sale by the elder would not bar the suit at the instance of the younger. In this context a suggestion was made at the hearing of the appeal that the elder may be considered to be the manager of the family to which the two brothers belonged and discharge at his instance would bind the minor. That plea was overruled and it was observed that
'the powers of the Manager of a Hindu family are undoubtedly very extensive, but there is nothing in the present case to show that the plaintiff No. 1 ever acting as the Manager'.
On the facts of the case it is quite apparent that the elder even as the karta could not have given any valid discharge as the sale itself was established to be not for any legal necessity. In any event, the observation that the plaintiff No. 1 never acted as the Manager was the finding which was arrived at on the materials and on the pleadings before the learned Judge. The above observation, in our opinion, cannot be taken to be laying down any Rule that in the absence of any positive evidence to show that the seniormost male member of the family has been acting as the Manager the said fact could not be otherwise found from other proved facts and circumstances. This aspect, in our opinion, was rightly pointed out by the Madras High Court in the case of Bhaktavatsaludu v. Venkatanarasimha Rao, AIR 1940 Mad 530.
11. The other decision relied on by Mr. Ghose in the case of Mudit Narayan Singh v. Ranglal Singh, (1902) ILR 29 Cal 797 in our view, does not militate against the view taken by us. The principle that was laid down in that case was that even a younger member of a family can by consent be the karta. On the other hand, the texts recited in this decision go to support the view taken by us. Referring to 'Shankha' and 'Likhita' it was pointed out that
'If the father be incapable, let eldest manage the affairs of the family or, with his consent, a younger conversant with business,'
Therefore, unless it is otherwise proved that by a common consent a younger member is appointed karta it would always be reasonable to hold that in the absence of the father the eldest amongst the sons would be the karta of the family if it continues to remain joint. Such was also the view expressed by this Court in the case of Ganeshmull Surana v. Nag-raj Surana, : AIR1953Cal294 though the said decision was overruled by the Division Bench on another point in the case of Kedarnath Kanoria v. Khaitan Sons & Co., : AIR1959Cal368 .
12. For reasons aforesaid we must uphold the view taken by the learned Judge that the appellant being the succeeding karta can well represent the joint family in the execution proceeding and the said proceeding can proceed in law as against the family represented by the appellant.
13. This appeal, therefore, fails and is dismissed.
14. There will be no order as to costs.
M.N. Roy, J.
15. I agree.