Chapter 8

Suit and its parties

Introduction

According to the Mitakshara law, as administered in Madhya Pradesh, a coparcener can alienate for value his undivided interest in coparcenary property without the consent of the other coparcener, but he has no right to alienate, as his interest in any specific property belonging to the coparcenary, for no coparcener can before partition claim any such property as his own; and if he does alienate, the alienation is valid to the extent only of his own interest in the alienated property.592

Abatement of suit

A suit filed on behalf of a Hindu minor for partition of joint family properties does not on the death of the minor, during the pendency of the suit, abate and may be continued by his legal representative and decree obtained therein if the Court holds that the institution of the suit was for the benefit of the minor. It is true that normally the family estate is better managed in union than in division, nevertheless the interest of the minor is the prime consideration in adjudging whether the estate should be divided at the instance of a minor suitor. If the conduct of the adult coparceners, or the claim made by them is prejudicial to the interest of the minor, the Court will readily presume that it is for his benefit to divide the estate.593

Acknowledgement of debt

At the time when the acknowledgement is made and signed, the person making and signing it, must be the manager of a subsisting joint Hindu family. If at the relevant time the joint Hindu family as such was no longer in existence because of division or disruption of its joint status, any acknowledgement made by the erstwhile karta of such family cannot keep the debt alive and extend limitation as against all the members of the family, his representative capacity as karta being conterminous with the joint status of the family. It is therefore the duty of the creditor to ascertain after due enquiry whether the person making the acknowledgement still holds his representative capacity as karta of the family. The law does not cast any duty upon the members of the family who do not figure in the endorsement or writing admitting the debt to inform the creditor by a general notice about the disruption of the family. If the creditor fails to make an enquiry and satisfy himself about the capacity of the executant to represent the family at the time of making the acknowledgement, he does so at his own peril. Disruption of the joint family status, puts an end to the representative capacity of the karta and any acknowledgement of a debt made by him after such disruption cannot save the creditors' claim from becoming time-barred against the other members.594

Admission in suit

A partition suit between mother and son stood compromised in which an admission was by the mother that she had only limited right, acquired for the first time under compromise decree. It was held that such admission is binding.595

Application of res judicata

It is not necessary, in order that a decree against the manager may operate as res judicata against coparceners who were not parties to the suit that the plaint or written statement should state in express terms that he is suing as manager or is being sued as a manager. It is sufficient if the manager was in fact suign or being sued as representing the whole family. The suit by or against the manager will be deemed to be one brought by him or against him as representing the family if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property. It is not necessary, where the manager is the plaintiff, that the plaint should state in distinct terms that he is suing as manager or where he is the defendant that he is being sued as manager.596

'Per incuriam' are those decisions given in forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. An issue of law decided by turning a blind eye to the relevant statutory provision cannot be held to be conclusive and binding on the parties litigating subsequently on a different cause of action. Such a decision on a question of law is clearly per incuriam and cannot acquire the status of a binding decision even in between the parties.597

Where in the earlier proceedings even on admitted facts, the courts by overlooking the relevant statutory provisions sanctioned the plea that the widow even after 1956 had remained to be a limited owner of the property. Such a view on pure question of law cannot be allowed to operate as res judicata. Taking a view of extending the rule of res judicata to such an extent like this, will manifestly result in perpetuating a social injustice which the legislature intended to undo by engrafting specific statutory provisions.598

Auction purchaser

Where a personal money decree was granted against a coparcener in respect of a debt incurred by junior member found to be immoral, it was held that the auction purchaser of property is entitled to claim partition of property by way of suit but he has no right to sue other members of the joint family.599

Challenge to alienation of property

The manager of a Joint Hindu Family is entitled to alienate the joint Family property for joint family necessity or for the benefit of the estate, in certain circumstances. Whether the manager is the father or not, will not make any difference. If such an alienation is made by the manager of the Joint Hindu Family of joint family property, the sale would bind not only his share in the property but the share of the other coparceners as well. No doubt, the other coparceners may be entitled to file a suit for partition and recover their share if the alienation was not for family necessity or for the benefit of the estate. The burden in such cases will also lie on the alienee to prove family necessity or the benefit to the estate to uphold the alienation by the manager. But that right of a coparcener does not affect competency of the manager to alienate the joint family property. When once such alienation is made, the alienee is entitled to be in possession of the property and right of any other coparcener is to sue for partition and recover possession of his share in the joint family properties. The sale being only voidable unless it is avoided by an action, the alienee is entitled to continue in possession. The position may be different if one coparcener alienates his share alone, but once the alienation is made by the manager of the property, it will be effective until it is properly avoided by the non-alienating coparcener by filing a suit for partition.600 Similar view has been taken by Supreme Court and it has been observed that 'relief of possession is independent of partition therefore a simple suit for partition is not maintainable.601

Manager or Kartha

A Karta can represent, the family effectively in a proceeding though he is not named as such.602 Power of the manager of a joint family acting on behalf of the minor members is a limited power and it can be exercised in a case of need or for the benefit of the estate. If the particular transaction is one which a prudent owner would make, in order to benefit the estate, the bona fide lender is not affected in any manner. But to sustain the transaction, the actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon the estate has to be found out. A lender is bound to inquire into the necessities for the loan, and to satisfy as well as he can, with reference to the parties with whom he is dealing, that the manager is acting in the particular instance for the benefit of the estate. If he does inquire, and acts honestly, the real existence of an alleged sufficient necessity is not a condition precedent to the validity of the charge on the estate. A bona fide creditor will not suffer when he has acted honestly and with due caution.603

Two persons may look after the affairs of a joint Hindu family on the basis of the members of the joint Hindu family clothing them with authority to represent the family. They would be two persons entitled to represent the family and their power to represent would depend on the terms of the authority conferred on them by the members of the joint Hindu family. Their authority to act for the family is not derived under any principle of Hindu Law, but is based on the members of the Joint Hindu family conferring certain authority on them. It cannot, therefore, be said that when two such representatives of a joint Hindu family sue and obtain a decree in their favour for the benefit of the joint Hindu family, and an appeal is filed against both of them as respondents representing the joint Hindu family, the other representative would continue to represent the joint family on the death of one of the representatives, he could not possibly do so when the authority given by the joint Hindu family be to the effect that both of them were to act jointly. In the absence of any knowledge about the terms of authority of the two representatives, it is not possible to urge successfully that on the death of one of the representatives, the other representative still continued to represent the joint Hindu family. On the death of one of the representatives, the karta of the family, in accordance with the principles of Hindu Law, will automatically be the person entitled to represent the joint Hindu family till such time that the family again decides to confer the authority on specified members of the joint Hindu family to represent it.604

It is open to the plaintiff to show by evidence that the manager has been acting fraudulently during the course of his management and that acts of misappropriation or of fraud have taken place, in which case the Court is at liberty to direct a general account of the management. Without clear evidence regarding acts of fraud or misappropriation there cannot be a general back accounting by the manager.605

Where the manager enters into a transaction and mixed charge on the joint family estate not for any legal necessity nor for any benefit of the estate and creditor also does not make the necessary enquiry to find out whether in fact the loan is for the benefit of the estate or not then such a loan by the manager cannot be enforced on the other members of the joint family or against the joint family property.606

Necessary parties

In a suit for partition the plaintiff is bound to implead as defendants (I) the heads of all branches; (ii) females who are entitled to a share on partition; (iii) the purchaser of a portion of the plaintiff's share, the plaintiff himself being a coparcener; and (iv) if the plaintiff himself is a purchaser from a coparcener, his alienor. All of them are necessary parties and if any of them is not joined, the suit is liable to be dismissed.607

Pleadings

The power of sale of any coparcenary property by the father for payment of an antecedent debt is the special power of the father of a joint Hindu family and if the father makes a sale of the coparcenary property to discharge a debt contracted by him for his own personal benefit, then such alienation binds the sons, provided the debt was antecedent to the alienation and it was not incurred for an immoral purpose. "Antecedent debt" means antecedent in fact as well as in time that is to say, that the debt must be truly independent of and not part of the transaction impeached. This being the position, an alienation for legal necessity stands on a footing fundamentally distinct from an alienation by a father for the discharge of antecedent debt. Consequently, the different considerations arise if an alienation is sought to be supported on the ground of legal necessity, these considerations cannot be imported in examining an alienation by a father after the discharge of an antecedent debt. Once it is pleaded that the alienation was for the discharge of antecedent debt, then the person who challenges the alienation can assail the same either by establishing that the debt in question was not antecedent at all or by establishing that the debt had been incurred for any immoral or illegal purposes. It is, therefore, imperative that the party must plead the same in the pleading as otherwise the other side will be greatly prejudiced if without any pleadings a party is permitted to lead evidence on that score and finding is arrived at.608

Receiver

In a joint Hindu family consisting of a father and sons there are three categories or rights:

(1) the share of the father;

(2) the share of the sons;

(3) the capacity of the father to sell the shares of the sons under certain circumstances.

When a father is adjudicated insolvent, only rights which belong to categories 1 and 3 vest in the Official Receiver but not the rights in category 2. And it is open to a creditor of the family to proceed against the rights comprised in category 2 so long as they have not been disposed of by the Official Receiver in exercise of the right in category 3. In the present case, therefore, thee was no bar to the shares of the sons being proceeded against. The sons cannot compel the decree-holder to imply the Official Receiver. If the Official Receiver thinks it necessary to do so, it is for him to take steps to be brought on record.609

Scope of suit for partition

In a Hindu Joint Family, if one member sues for partition on the foot that the properties claimed by him are joint family properties then three circumstances ordinarily arise. The first is an admitted case when thee is no dispute about the existence of the joint family properties at all. The second is a case where certain properties are admitted to be joint family properties and the other properties in which a share is claimed are alleged to be the accretions or acquisitions from the income available from joint family properties or in the alternative have been acquired by a sale or conversion of such available properties. The third head is that the properties standing in the names of female members of the family are benami and that such a state of affairs has been deliberately created by the manager or the head of the family and that really the properties or the amounts standing in the name of female members are properties of the joint family.610

When an adopted son was sought to be substituted in place of deceased plaintiff, it was held that the factum of adoption cannot be disproved in the partition suit itself but can be made only by way of independent proceedings as collateral challenge to registered deed of adoption was not permissible.611

Suit by minor

A suit filed on behalf of a Hindu minor for partition of joint family properties does not on the death of the minor during the pendency of the suit abate, and may be continued by his legal representative and decree obtained therein if the Court holds that the institution of the suit was for the benefit of the minor. It is true that normally the family estate is better managed in union than in division, nevertheless the interest of the minor is the prime consideration in adjudging whether the estate should be divided at the instance of a minor suitor. If the conduct of the adult coparceners, or the claim made by them is prejudicial to the interest of the minor, the Court will readily presume that it is for his benefit to divide the estate.612

Suit for accounts

When the manager of the joint family places before the Court the properties, which, according to him, are liable for division the Court is not bound to accept that as a final word on the subject and it is open to the plaintiff to let in the evidence to show that some properties belonging to the joint family have been excluded from the list furnished by the manager, and if the Court is satisfied that it is so they will be included. The omission to include such properties might be an inadvertent mistake or because of some other reason. In such cases it cannot be said that the manager is guilty of fraud or misappropriation. Likewise, it is open to the plaintiff to show by evidence that the manager has been acting fraudulently during the course of his management and that acts of misappropriation or of fraud have taken place, in which case the Court is at liberty to direct a general account of the management. Without clear evidence regarding acts of fraud or misappropriation there cannot be a general back accounting by the manager.613

Another view is that in the absence of proof of misappropriation or fraudulent and improper conversion by the Manager of a joint family estate, a coparcener seeking partition is not entitled to require the Manager to account for his past dealings with the family property. So far as, however, the income or rent accruing from the property from and after the institution of the suit is concerned, it is well settled that since the institution of a suit for partition amounts to a severance of the joint status, the Manager is bound to account for all receipts and expenses from the date of the institution of the suit.614

The Supreme Court has however held that in the absence of fraud or other improper conduct, a karta is not liable to account for the existing state of property. In a suit for partition, the court may however inquire into the fact as to which property consisted of the joint family property, on the date of partition.615

Where a partner in the firm is acting as nominee of HUF, it is a matter between him and the HUF. It does not have affect on the contractual relationship between him and the partnership firm. An HUF can not intrude into the relationship created by a contract between certain individuals viz. partnership. The only right of the HUF is to call upon its nominee partner to render accounts for the profits that he has made from the partnership business.616

Suit for injunction

In case of waste or ouster an injunction may be granted against the Manager of the joint Hindu family at the instance of the coparcener. But nonetheless a blanket injunction restraining permanently from alienating the property of the joint Hindu family even in the case of legal necessity, cannot be granted.617

In a suit for specific performance it was observed that for a transaction to be regarded as one which is of benefit to the family it need not necessarily be only of a defensive character. But what transaction would be for the benefit of the family must necessarily depend upon the facts of such case. In this case there was nothing in the plaint to suggest that vender agreed to sell the property because he found it difficult to manage it or because he found that the family was incurring loss by retaining the property. Nor there was anything to suggest that the idea was to invest the sale proceeds in some profitable manner. There were no allegations in the plaint to the effect that the sale was being contemplated by any considerations of prudence. All that was said was that the fraction of the family's share of the land owned by the family bore a very small proportion to the land which the plaintiff held at the date of the transaction. The expression "benefit of the estate" has a wider meaning than mere compelling necessity and is not limited to transactions of a purely defensive nature. It was held that the suit for specific performance was rightly rejected by the Trial Court.618

One co-sharer is not entitled to seek injunction against another.619

Withdrawal of suit

A coparcener not entitled to withdraw the suit without agreement by other members. It is not open to The plaintiff to nullify the effect of separation unless all the members including the applicant agree to withdrawal and its effect.620