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Kedarnath Kanoria and ors. Vs. Khaitan Sons and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 155 of 1957
Judge
Reported inAIR1959Cal368
ActsCode of Civil Procedure (CPC) , 1908 - Section 2(11) - Order 1, Rule 10(2) - Order 22, Rules 1, 3, 9 and 10; ;Hindu Law
AppellantKedarnath Kanoria and ors.
RespondentKhaitan Sons and Co.
DispositionAppeal dismissed
Cases ReferredVenkatanarayana Pillai v. Subbammal
Excerpt:
- r.s. bachawat, j. 1. this is an anneal from an order made by my learned brother g. k. mitter. j., in suit no. 1252 of 1948. the, suit was originally instituted, in the name of surajmull hanumandas, claiming the price of: goods sold and delivered to the defendant. by an order dated 16-1-1950, the plaint was amended by substituting the name of hanumandas kanoria the then karta of the joint family business carried on under the name and style of surajmull harmmandas, as plaintiff. on or about 1-11-1951, the joint family, of which hanumandas was the karta, was disrupted and thereupon hanumandas and one subhkaran kanoria and one biswanath kanoria became the kartas of the three branches of the family and as such became entitled to the business of surajmull hanumandas and the assets thereof.....
Judgment:

R.S. Bachawat, J.

1. This is an anneal from an Order made by my learned brother G. K. Mitter. J., in suit No. 1252 of 1948. The, suit was originally instituted, in the name of Surajmull Hanumandas, claiming the price of: goods sold and delivered to the defendant. By an order dated 16-1-1950, the plaint was amended by substituting the name of Hanumandas Kanoria the then karta of the joint family business carried on under the name and style of Surajmull Harmmandas, as plaintiff. On or about 1-11-1951, the joint family, of which Hanumandas was the karta, was disrupted and thereupon Hanumandas and one Subhkaran Kanoria and one Biswanath Kanoria became the kartas of the three branches of the family and as such became entitled to the business of Surajmull Hanumandas and the assets thereof including the claim against the defendant firm. On or about 24-7-1952, Hanumandas Kanoria died leaving Kedarnath as Karta of his branch of the family. On 27-7-1958, an application was made on behalf of Kedarnath Kanoria, Subhkaran Kanoria and Riswanath Kanoria for an amendment of the plaint. The application, though in form an application for amendment of the plaint, was in substance one for substitution of the petitioners as plaintiffs and for consequential amendment of the plaint and has been treated as such. G.K. Mitter, J., referred to the decision in Ganeshmal v. Nagraj Surana : AIR1953Cal294 , in which Banerjee, J., held that when during the pendency of a suit, the karta, who filed the suit, dies, the next karta can apply to be brought on the record, there being no question of abatement of the suit, G. K. Mitter, J., then pointed out that in the instant case the application had been made! more than three years after the death of the karta Hanumandas and also more than three years after the disruption of the family. Ha held that there clearly was some devolution or creation of interest within the meaning of Order XXII, Rule 10, of the Code of Civil Procedure and that the application before him fell under Order XXII, Rule 10 or Order I, Rule 10, of the Code of Civil Procedure. He then observed that the only question before him was whether the application was hit by Article 181 of the Limitation Act. He thereupon dismissed the application. Although, he docs not say so clearly, it appears that he must have dismissed the application on the ground that the application was tarred by limitation.

2. I am inclined to agree with G. K. Mitter, J., that upon disruption of the joint family there was some sort of devolution or creation or interest within the meaning of Order XXII, Rule 10, of the Code of Civil Procedure. Hanumandas was and the applicants are governed by the Mitakshara School of Hindu Law. So long as the joint family was undivided, there was community of interest and no member of the family had any defined share in the coparcenary properties. Upon partition and disruption of the joint family, there was severance of the joint status and the members of the family came to hold the coparcenary properties in defined shares and as separated owners. In the Mitakshara School of Hindu Law partition consists in defining the shares and actual partition by metes and bounds is not necessary.

3. Mr. Bhabhra on behalf of the appellants contended that, in the circumstances, the application for substitution of the applicants is not barred by the law of limitation. I am inclined to agree with Mr. Rhabhra that the right of an assignee pendente lite to apply for leave to continue a pending suit and to be added as a party accrues from day to day and that if the suit had not abated on the date of the application, it would not have been barred by limitation. The question still remains whether the suit has abated and if so, whether the application is maintainable.

4. Mr. Rhabbra argued that the suit has not abated, because (a) on the death of a plaintiff suing as a karta of joint family, the suit cannot abate. He urged that in spite of the disruption of the larger family, Hanumandas must be regarded as continuing the suit as the Karta of the larger family or, in any event, as karta of his branch of the family, (b) That all the members of the larger family including the applicants are in the eye of law already parties to the suit.

5. In this case Hanumandas was the sole plaintiff on the record. Ry Order XXII, Rule 1, the death of a plaintiff does not of itself cause a suit to abate, if the right to sue survives. Ry Rule 3 of the sole plaintiff dies and the right to sue survives, his legal representative may be made a party and allowed to proceed with the suit. If no application for that purpose is made within ninety days, the suit abates so far as the deceased plaintiff is concerned. If the deceased plaintiff is the sole plaintiff, the suit abates as a whole. Ry Rule 9 where a suit abates, no fresh suit can be brought on the same cause of action. In certain circumstances and for sufficient cause the abatement may be set aside.

6. In my opinion, the same consequences follow on the death of the sole plaintiff suing as karta in a representative character. If no application under Rule 3, Sub-rule (2) for substitution of his legal representative is made, the suit abates.

7. Section 2(11) defines who is a legal representative and is as follows :

' 'Legal representative' means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.'

8. The karta of a joint family sued in a representative character in respect of joint family property or dealings represents the joint family estate, which may be bound or which may be proceeded against in the event of a decree being passed in the suit, and his legal representatives are the persons upon whom that estate devolves.

9. Dealing with the question as to who is the legal representative for the purpose of execution of a decree in a case arising under the Code of Civil Procedure, 1882, Woodroffe, J. observed in the well-known case of Dinamoni Chandhurani v. Elahadut Khan, 8 Cal WN 843 at p. 856 :

'In these cases where a decree is passed against a judgment-debtor not in his or her personal capacity but in a representative capacity the decree may be executed against the person who, though not a heir of the judgment-debtor the last holder of the estate, is entitled thereto after her death whether as reversioncr or surviving co-parcener.'

10. The karta of a joint family suing in a representative character for the members of the family in respect of joint family property or claim represents the joint family estate, which is the subject-matter of litigation, and his legal representatives are the persons upon whom the estate devolve on his death. Strictly, his legal representative? are all the members of the family whom he represented. It is, however, sufficient to substitute for him the succeeding manager who effectively represents the surviving members and upon whom in a representative character the estate may be said to devolve: See Atmaram v. Ranku Mal, ILR 11 Lab 598 : (AIR 1930 Lah 561), Nagappa v. Karuppiah Nadar : AIR1925Mad456 . Bhai Ganeshram Balbhadra Shop v. Firm Mangilal Balkishan, ILR (1953) Nag 248 : (AIR 1952 Nag 390). If on the death of the karta an application for substitution of his legal representatives is not made within ninety days, the suit abates.

11. Reliance is placed by Mr. Bhabhra upon the decision of Banerjee, J., in : AIR1953Cal294 , where Banerjee, J., held that on the plaintiff suing as karta of a joint family, the suit does not abate. Briefly, his reasons for this conclusion wilt appear from the following quotations from his judgment at pp. 277, 279 and 280 (of Gal LJ) : (at p. 296 of AIR) :

'The Hindu Law permits the conduct of the family's suit to be placed in the hands of the karta, but the family is the party to the suit.'

* * * * * * 'The Karta has neither any share in the income nor in the property. It is the family, the corporate body, winch is the owner of the property and if one member dies, it is still the family that remains the owner. IE that is so, in a suit to recover joint family property, the Karta suing as such conducts the suit on behalf of the family. His name is used for the family. To borrow an expression from the Law of Partnership, it is a compendious way of describing the family. The death of the Karta does not make any difference to the suit at all. The family is there and the next Karta springs up and the family is described as suing by so and so- (die next Karta).'

* * * * 'With great respect to the learned Judge, I am unable to see how any estate of the deceased can devolve. There is no estate at all as I have already tried to explain. Therefore, there cannot be any question of its devolution. On these considerations I hold that the suit has not abated.'

12. In my opinion, the members of the joint family, though represented by the karta. are not parties to the suit. No order can be made against the members of the family personally. Those members are not on the record of the suit. They cannot separately appear and plead. In the event of a separation of the joint family during the pendency of the suit and the subsequent death of a separated member, the suit will not abate. Though the plaintiff happens to sue as karta in a representative character, ho is still the sole plaintiff on the record.

13. It is true that the karta has no estate of his own which may pass by succession, but he represents an estate and the persons upon whom the estate devolves on his death are his legal representatives.

14. With respect, I am, therefore, unable to agree with the decision of Banerjee, J., in 88 Cal LJ 271 : (AIR 1953 Call 294).

15. My attention Las been drawn to the case of Beejraj v. Bhyropersaud, ILR 23 Cal 912, where on the death of the plaintiff who was the karta of a joint family an application was made by the succeeding karta of the family for revival of the suit. Ameer Ali, J., held that on the death of the plaintiff his interest passed to the other members by survivorship and not by succession and accordingly a certificate under Act VII of 1889 was not necessary in order to enable the applicants to proceed with the suit. With reference to the form of the application he also observed : 'The present case, however, is unprovided for, except by Section 372 of the Civil Procedure Code.'

16. It is to be noticed that there was no question of abatement of the suit in that case. Order XXII, Rule 10, of the Code of Civil Procedure corresponding to Section 372 of the 1882 Code applies in other cases, that is to say in cases of assignment, creation Or devolution of any interest other than those covered by the preceding rules. Rule 10 is the residuary rule. If the ease is covered by Rule 3, Rule; 10 has no application. Succession certificate is not necessary, because the interest of the deceased passes to the surviving members by survivorship and not by succession, none the less, the surviving members are the legal representatives of the deceased plaintiff for the purpose of Rule 3 read with Section 2(11). The devolution in such a ease is, therefore, covered by Rule 3 and Rule 10 is not attracted.

17. I have, therefore, come to the conclusion that though Hanumandas was on the record as plaintiff suing as karta in a representative character, it cannot be said that other members of the family are eo nomine parties to the suit.

18. I have; also come to the conclusion that assuming in favour of the applicants, that in spite of the disruption of the joint family Hanumandas ought to be regarded on the date of his death as carrying on the suit as karta for the larger family or, in any event, for his branch of the family, the suit has still abated.

19. Mr. Bhabhra next contended that upon the creation and devolution of interest within the meaning of Order XXII, Rule 10 of the Code of Civil Procedure Hanumandas's right to sue ceased and as such there could be no question of that right surviving or of abatement of the suit.

20. Regarding this case as a case of assignment simpliciter, it is well settled since the decision in Rai Charan v. Biswa Nath, 20 Cal LJ 107 : (AIR 1915 Cal 103), that the suit is not arrested by reason of the assignment, that the assignee may, if he chooses, obtain leave of the Court under Order XXII, Rule 10, but if he does not do so, the original assignor plaintiff is entitled to continue the suit and the assignee will be bound by the result of the litigation. Dealing with a case where the assignor plaintiff was allowed to continue the suit in spite of the assignment of the debt which was the subject-matter of the suit, Das, C. J. pointed out in Jugalkishore Saraf v. Messrs. Raw Cotton Co. Ltd., 1955 SCA 440 at 469 : ((S) AIR 1955 SC 376 at p. 394), that in the eye of the law the position of the assignor, vis a vis the assignee was nothing more than that of benamidar for the assignee and that when the decree was passed for the recovery of the debt it was the assignee who was the real owner of the decree. Of course where both the assignor and the assignee are parties to the suit, the decree cannot be passed in favour of the assignor and must be passed in favour of the assignee and such a case is dealt with by Lord Porter in Monghibai v. Cooverji Umersey .

21. In my opinion, the absence of an application under Order 22, Rule 3 in duo time after the death of the sole plaintiff on the record will cause the suit to abate, though the deceased plaintiff may have parted with his interest in the subject-matter of the suit before his death.

22. The present case, however, is not a case of assignment simpliciter, but a case of partition and disruption of the joint status and consequential loss of the representative character of the plaintiff and of his power to represent the members of the larger family. Assuming that the rule in 20 Cal LJ 107: (AIR 1915 Cal 103) cannot be rigorously applied in such a case and that on partition the suit became defective in the absence of the other members, such a defect does not arrest the abatement of the suit. The right to sue, howsoever defective, survives and the case is covered by Order 22, Rule 3.

23. I have, therefore, come to the conclusion that the suit abated on the death of Hanumandas, notwithstanding that prior to his death there was disruption of the family and though there was some devolution or creation of interest within the meaning of Order XXII, Rule 10 of the Code of Civil Procedure.

24. Mr. Bhabhra next contended that the right of an assignee to apply under Order XXII, Rule 10 of the Code of Civil Procedure continues notwithstanding the death of the assignor plaintiff and the abatement of the suit.

25. It is true that the death of the assignor plaintiff simpliciter does not take away the right of the assignee to apply under Order XXII, Rule 10 of the Code of Civil Procedure. By Order XXII, Rule 1 the death of the plaintiff of itself does not cause the suit to abate. Before the suit has abated the assignee may apply for and obtain leave to continue the suit. He may also, if he chooses, apply for substitution of the legal representative of the deceased plaintiff. In a proper case the order for leave to continue the suit may be dated nune protune as of the date when the application was made. If necessary, the application for leave to continue the suit may he treated as being in substance a composite application for substitution of the legal representatives of the deceased plaintiff and there-after of the applicant. On obtaining the necessary leave the assignee becomes the new plaintiff and the suit cannot thereafter abate on account of the death of the original plaintiff.

26. But the assignee can obtain leave only to continue a suit. If the suit has already abated, there is no suit which may be continued. The abatement terminates the suit and disposes of the plaintiff's claim as if the suit has been dismissed without a hearing. Leave to continue a suit cannot be given after the suit has terminated. It cannot be given if the suit has already been decreed or dismissed for default of appearance of the plaintiff. Similarly, leave cannot be given if the suit has already abated. The suit abates automatically in the absence of any application under Order XXII, Rule 3 within ninety days and a further order declaring that the suit has abated is not necessary. The assignee is hound by the abatement and by proceedings had in the suit before his intervention. I will now notice and deal with cases relied upon by Mr. Bhabhra in this connection.

27. In Rajaram Bhagwat v. Jibai, ILR 9 Bom 151 during the pendency of an appeal the plaintiff respondent died. Before his death and some time after a decree had been passed in his favour, he had assigned the subject-matter of the suit and the decree to the applicant. The applicant assignee applied for his substitution in place of the deceased respondent. This application was resisted by the appellant. On his behalf it was contended that it was the right of the appellant to bring forward as respondent whomsoever he chose and no stranger could claim to come in as a respondent. The Court rejected the contention, holding that the appellant may determine who shall be respondent, but not that any particular person shall not be a respondent. Reliance, however, was placed upon the following observation of West, J. at page 155:-

'The case being one of an assignment or creation of an interest pending the appeal plus the death of the assignor, is one embracing a fact more than that contemplated by Section 368. The rule in Section 372, on the other hand, must be admitted to apply to it; and being alone sufficiently inclusive, if not the more specific, as dealing with 'other cases' than the ones previously provided for, must prevail over those rules.'

This decision was under Sections 368 and 372 of the Code of Civil Procedure 1882 which correspond to Order XXII, Rules 4 and 10 of the present Code of Civil Procedure. I entirely agree that the right of an assignee to apply under Order XXII, Rule 10, of the Code of Civil Procedure in the event of assignment pendente life is not taken away by the further event of the subsequent death of the assignor; but the question whether the right of the assignee to apply for leave to carry on the suit or the appeal continues in the larger event of the abatement of the suit did not arise and was not considered by the Court in the above case. As a matter of fact, there was no question of any abatement of the appeal in the case. It may also be pointed out that' under Section 366 of the Code of Civil Procedure, 1882, before the suit could abate the Court had to pass an order that the suit shall abate.

28. That decision was followed in Prokas Chandra Das v. Shama Charan Dutt. : AIR1925Cal467 . In that case also there was no question of abatement of the suit. The plaintiff assignor had died on the 4th October, 1921 and the application under Order XXII, Rule 10 was made on the 7th November, 1921.

29. In the case of Rajani Kanta Roy v Jyoti Prosad Singh Deo : AIR1924Cal90 , there was a suit for partition against several defendants. On the; 25th August, 1915, a preliminary decree was passed. In 1918 the interest of Rakhal, one of the defendants, had been sold in execution of a decree, On the 17th December, 1918 a final decree was passed. During the pendency of the appeal from the final decree, in which there were several respondents, Rakhal, who was one of the respondents, died on the 24th May, 1920. On the 23rd. January, 1921 Rakhal's heirs repurchased Rakhal's interest in the property. On the 5t:h February, 1921, an application for substitution of Rakhal's heirs was made and that application was allowed subject to objection at the hearing. On the 5th May, 1921, Rakhal's heirs as assignees again seems to have been brought on the record subject to objection. At the hearing of the appeal it was urged that no substitution having been made within time in respect of Rakhal's death and the suit being one for partition, the appeal could not proceed. A Bench of this Court held that the appeal was competent, inasmuch as the persons upon whom the interest of Rakhal had devolved had been made parties to the case. The Court observed that the three months' limitation did not apply to a case of assignment or devolution of interest pending the suit.

30. It is to be noticed that the point that leave to continue the suit cannot be given' under Order XXII, Rule 10 of the Code of Civil Procedure after the suit had abated was not raised and was not considered in that case. It is also to be noticed that assuming that the anneal had abated against Rakhal who was one of the respondents, the appeal as a whole had not abated. It is true that the appeal became defective for absence of a necessary party, but in order to remedy the defect, the Court had power to add the assignee of Rakhal's interest in the pending appeal. A fresh suit against Rakhal's assignee was not barred by Order XXII, Rule 9 for the cause of action for partition is recurring so long as the property is undivided. The decision is, therefore, distinguishable. I also noticed that in that case the death took place after the preliminary decree and, therefore, there could be no abatement, but I am bound to observe that the judgment did not proceed on that ground.

31. In Mithan Lal v. Maya Devi : AIR1929All444 , there was a preliminary decree on the 21st October, 1923. The plaintiff made an assignment of her rights secured by the preliminary decree to several persons including the applicant. On the 29th of January, 1926, the plaintiff died. On the 20th of December, 1926, an application was made by one of the assignees for preparation of the final decree. An objection was taken that the suit had abated and that no application having been made within sixty days to set aside the abatement, the whole application was barred by Articles 176 and 171 of the Limitation Act. The Court rejected this contention. After referring to and commenting upon Rules 1 to 10 of Order XXII of the Code of Civil Procedure, the Court observed:-

'There is no justification for applying rules governing abatement to a person who does not claim to come in as a legal representative. Mt. Maya Devi was entitled to say:

'Whether I am or am not the legal representative of Mr. Nando Kuer (a question which has not been decided at all) I am the assignee of Mt. Nando Kuer by a gift executed by her in her lifetime and as such assignee I am entitled by the leave of the Court to continue the suit.' As we have already held that the rules governing abatement occur only in those rules which deal with the rights of the legal representatives, and Mt. Maya Devi claiming as an assignee was entitled to say that she is not affected by those rules, and Rule 1 says that the mere death of the plaintiff does not by itself cause abatement there is, in our view, no ground for holding that her application was governed by Article 176 or 171, Limitation Act and she had three years within which to make her application.'

32. With very great respect, I am unable to agree with this decision. I observe that the point that where the whole suit abates there is no suit which can be continued, was not at all considered by the Court. It is also wrong to say that the assigned is not affected by the rules relating to abatement or that those rules affect only the legal representative of the deceased party or his assignees or Receivers in Insolvency. In my opinion, Order XXII, Rule 9 of the Code of Civil Procedure affects assignees of the deceased plaintiff as well as his legal representatives. If the cause of action is identical, the fresh suit is barred, no matter whether it is brought by the assignee or by the legal representative of the deceased plaintiff. Termination of the suit by abatement also affects the right of the assignee, to apply under Order XXII, Rule 10 of the Code of Civil Procedure. The suit having abated, there is no suit which can be continued and as such the assignee cannot apply under Order XXII, Rule 10 after the suit has abated. The application under Order XXII. Rule 10 cannot be made after the suit has abated not because it is barred by limitation, but because there is no suit which can be continued.

33. I have, therefore, come to the conclusion that an application under Order XXII, Rule 10 of the Code of Civil Procedure is not maintainable after the suit has abated.

34. I am also of the opinion that an application for addition of any party cannot be made under Order I, Rule 10, Sub-rule (2) after the suit has abated and when the suit is no longer pending.

35. I would, therefore), dismiss the appeal with costs.

K.C. Das Gupta, C.J.

36. I agree, but out of deference to the eminent Judge with whose view we are disagreeing, I shall add a few words.

37. There cannot, in my opinion, he any doubt that the disruption of the joint family resulted in devolution of interest on the three branches of the family which came into existence as a result of such disruption. It is equally clear in my opinion that these three branches, either through the individual members or through their three kartas, could ask for leave of the court to continue the suit. If such an application is made when the suit is a live suit, it would be proper ordinarily to allow such an application.

38. Is it possible however to give such permission to continue the suit under the provisions of Order XXII, Rule 10 of the Code of Civil Procedure even where the suit has abated? It seems to me a contradiction in terms to say that the person on whom the interest has devolved is given leave to continue the suit after the suit has ceased to exist. Something which has ceased to exist cannot be allowed to continue and wide though the powers of the court be, and should be, in the interests of justice I am unable to persuade myself that a suit which has abated can be allowed to be continued.

39. Mr. Bhabra drew our attention to the marginal note in Order XXII Rule 10 of the Code of Civil Procedure to the effect that the procedure provided in this rule is procedure in case of assignment before final order in suit. He has tried to convince us that there must be a final order before it can be said that the suit has ceased to exist for the purpose of leave being given. I can find no substance in this contention. The marginal note can be and often is of great assistance for the interpretation of the actual words used in the section. But as was laid down by the Supreme Court in the case of Nalinakhya Bysack v. Shyam Sunder Haldar. : [1953]4SCR533 when dealing with the marginal note of Section 18 of the West Bengal Premises Rent Control Act, the indication of the marginal note must yield to the clear words in the section itself. In the present case, Rule 10 of Order XXII is, in my opinion, abundantly clear that a suit in order to be continued must be a live suit and as under the present Code as distinct from the previous Code no actual order of abatement need be passed by the Court and the suit abates even in the absence of the order by operation of law, the result is inevitable that even though no final order has actually been made in the suit, no order to continue the suit can be made, once the suit has abated.

40. This brings us face to face with the question has the suit abated? If Banerjee J. is right in his view which he expressed in the case of : AIR1953Cal294 that the death of a karta who has brought the suit on behalf of the family makes no difference to the suit at all and no abatement results, there is scope for an argument that the present suit did not abate on the death of Hanumandas Kanoria even though no substitution took place within the period of 90 days in his place. With great respect to the learned Judge, I am of opinion that the view which found favour with him is not correct. As my learned brother has pointed out, it is unrealistic to think in a case where the karta has brought a suit on behalf of a joint family as the special rule in, Hindu Law allows him to do, that the joint family is the plaintiff and not the karta. The joint family is not a Corporation or other legal entity which can bring a suit as such. If the karta does not bring a suit it would be possible to bring a suit through all the members of the joint family. If such a suit is brought and there is a change in the constitution of the joint family, the necessary correction has to be made in the record. Where, however, the karta brings the suit, as he is entitled to do, changes in the constitution of the family will not necessitate a change of the record. It seems clear to me that when the karta brings the suit as the plaintiff, he continues to be the plaintiff and is the real plaintiff in spite of the fact that he is bringing the suit on behalf of a joint family. Banerjee J. appears to have been much impressed by the fact that in a suit brought by the nearest reversioner to set aside a widow's alienation the courts have taken the view that the suit does not abate on the death of the reversioner, but the surviving reversioners may be allowed to continue the suit. That, it is to be noticed, is and can be done under the provisions of Order I, Rule 8(2) of the Code of Civil Procedure which provides that 'Any person on whose behalf or for whose benefit a suit is instituted or defended under Sub-rule (1)''--which contains the general provision as regards representative suit--'may apply to the Court to be made a party to such suit'. The courts have treated reversioners who have not been made parties to the suit as persons on whose behalf the suit has actually been brought and accordingly has allowed surviving reversioners to continue the suit under the provision of this rule. As was observed in Krishnaswami Iyer v. Seethalakshmi Ammal. AIR 1919 Mad 479--on which reliance was placed by Banerjee J.--by Sadasiva J. the Privy Council in Venkatanarayana Pillai v. Subbammal, 42 Ind App 125: (AIR 1915 PC 124) based their decision that if the reversioner who was conducting the suit dies, the next man is entitled to come in for the purpose of continuing the conduct of the suit on the broad ground, namely, that he was already a party to the suit though the conduct of it was in the hands of the first reversioner and consequentially he was entitled to continue the suit after the plaintiff's death.

41. In my opinion the special considerations in a suit brought by a reversioner challenging the alienation made by the widow do not arise in the case of a suit brought by a karta of a family on behalf of the joint family. The suit is a suit by the karta and if he dies, his legal representatives have to be brought on the record within the time limited by law. Numerous cases have laid down that his legal representatives can be brought on the record, I can see no reason to think that even though there is such a legal representative as settled by the authorities, the suit continues unaffected by the death of the karta in spite of the omission to bring such legal representatives on the record within the time limited by law. I therefore agree with my Lord that Banerjee J. was wrong in thinking that on the death of a karta who has brought a suit on behalf of the joint family the suit does not abate.

42. It is clear on the authorities that in spite of the disruption of the family, Hanumandas Kanoria was entitled to continue the suit, it being open to the three branches of the family to ask for the court's leave so long as the suit was alive. On Hanumandas Kanoria's death the suit could be kept alive by the substitution of his legal representatives. That was not done. The result is that the suit abated on the expiry of 90 days from the death of Hanumandas Kanoria. Even then, action could have been taken for setting aside the abatement. That also does not appear to have been done. The position that has resulted is that the suit has abated and it was after such abatement that an application had been made by the three kartas of the three branches of the family which came into existence on the disruption to be brought on the record, but the suit having abated, the leave could no longer be granted.

43. I agree with my Lord that the application was rightly rejected and the appeal must be dismissed with costs.


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