Sunday, 19 January 2020

Whether it is mandatory to implead karta of HUF in eviction suit filed by co-owner of tenanted property?

 This, however, does not imply that for want of impleadment of
Karta, in the peculiar facts of the case, the suit is liable to be
dismissed. Indisputably, respondent Nos. 2 to 4 have been impleaded
as the plaintiffs to the suit in the capacity of the legal representatives
of the deceased plaintiff No.2. The learned counsel for the respondent
Nos.2 to 4 was justified in advancing a submission that a decree for
eviction was also sought on the ground of personal bonafide
requirement of the deceased plaintiff No.2 and his daughter Anjalirespondent
No.4 herein. Thus, the respondent No.4, in the capacity of
being a co-owner, is entitled to prosecute the suit irrespective of the
Karta being brought on record.
23. The aforesaid submission is required to be considered in the
backdrop of the proposition that a co-owner is entitled to institute a
suit for eviction for and on behalf of all the co-owners, unless it is
shown that the other co-owners were not agreeable to the ejectment
to the tenant. It is one thing to say that a member of the family
other than, or in the absence of, a Karta, may be permitted to
prosecute the suit on account of special circumstances of a given case.
And a completely different thing to claim that despite a Karta having
been appointed, he will not be impleaded to represent the HUF sans

the existence of special circumstances. In the latter case, the tenability
of the suit, without impleading the Karta, would be in issue.
24. Reverting to the facts of the case, as the respondent Nos.2 to 4
are already prosecuting the suit, either in the capacity of the coowner
or as the legal representatives of deceased plaintiff No.2 and,
at the same time, there is a cloud of doubt over the intendment of
the HUF to prosecute the suit for eviction of the tenant, especially on
account of the fact that there being material to show that a Karta has
indeed been appointed and there is an alleged non-compliance of an
order of Appellate Bench in Appeal No.306 of 2009 to bring the Karta
on record, steps will have been taken to implead the successor Karta
in the instant suit. It would be in the fitness of things to frame and
try the issue regarding the tenability of the suit, in the event of nonimpleadment
of the successor Karta. To this extent, the observations
of the Appellate Bench to the effect that the non-impleadment of the
successor Karta has no bearing whatsoever on the tenability of the
suit are unsustainable.
25. The question as to whether the HUF as such intends to
prosecute the suit for eviction is essentially for the HUF to answer. It

would be onerous for the defendants to plead and prove that the HUF
does not want to prosecute the suit. Therefore, it would be
appropriate to provide an opportunity to the HUF to make its stand
clear, if it desires to.
26. In the aforesaid peculiar circumstances, in my view, it would be
appropriate to provide an opportunity to the HUF to bring the
successor Karta on record, within a stipulated period, and, in the
event of default, frame and try the issue of tenability of the suit for
eviction at the instance of HUF, as such, without bringing Karta on
record, and plaintiff Nos. 2 to 4, in the capacity of the co-owners of
the demised premises.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO. 9267 OF 2019
IN
REVISION APPLICATION NO. 343 OF 2018
IN
EXHIBIT NO. 28
IN
R.A.E. SUIT NO. 119/171 OF 2011

Mrs. Madhuri Doulatram Choitram Vs  Lachmandas Tulsiram Nayar (HUF) by and through its Karta

CORAM : N.J. JAMADAR, J.

Pronounced on : 18th December 2019


1. This petition under article 227 of the Constitution of India
assails the legality, propriety and correctness of the judgment and
order dated 12th April 2019 in Revision Application No. 343 of 2018
passed by the Appellate Bench of the Court of Small Causes, Bombay,
whereby the revision application preferred by the petitioner against an
order passed by the learned Judge, Court of Small Causes, Bombay on

an application for dismissal of the suit (Exh.28) in RAE Suit No.
119/171/2011 dated 2nd April 2018, came to be dismissed.
2. The background facts leading to this petition can be stated in
brief, as under :-
(a) The respondent No.1-Lachmandas Tulsiram Nayar (HUF)
had instituted a suit, being RAE Suit No. 660/1127/2002,
against the predecessor-in-title of the petitioner and
respondent No.5 for recovery of the possession of the
demised premises on the ground of personal bonafide
requirement and non-user. The said suit came to be
dismissed by a judgment and order dated 27th February
2009.
(b) Thereafter, respondent No.1 again instituted a suit,
being RAE Suit No. 119/171/2011, against the petitioner and
respondent No.5 on the ground of personal bonafide
requirement and alleged sub-letting. The suit was instituted
by the HUF through its Karta and Manager Mr.Brijbihari
Tulsiram Nayar. Mr. Jagdishmohan Tulsiram Nayar was also
arrayed as the plaintiff, with an assertion that the latter was

assisting the Karta and Manager in managing the affairs of
the said HUF.
(c) Jagdishmohan Lachmandas Nayar; plaintiff No.2, died
on 23rd February 2014. The respondent Nos. 2 to 4 herein,
claiming to be the legal representatives of the deceased
plaintiff No.2, sought their impleadment. The learned Judge,
by an order dated 16th September 2016, was persuaded to
allow the application and implead the respondent Nos. 2 to
4 as the legal representatives of the deceased plaintiff No.2.
The petitioner challenged the said order in Writ Petition No.
557 of 2017.
(d) In the meanwhile, Mr.Brijmohan Lachmandas Nayar,
the Karta and Manager of HUF also died on 1st July 2015.
Since the successor Karta and Manager of Lachmandas
Tulsiram Nayar (HUF) was not impleaded in the suit, the
petitioner-defendant filed an application for dismissal of the
suit as abated, and, in the alternative, qua the plaintiff No.1
HUF, as there was no Karta to represent the said HUF. The
respondent Nos.2 to 4, in the capacity of the legal
representatives of the deceased plaintiff No.2, resisted the

application.
(e) By an order dated 2nd April 2018, the learned Judge
was persuaded to reject the application holding, inter-alia,
that the legal representatives of the deceased plaintiff No.2
were already brought on record and, thus, the suit would
not abate on account of the death of Karta and Manager of
HUF despite the successor Karta of the HUF not being
brought on record.
3. The petitioner carried the matter in revision before the Appellate
Bench. By the impugned judgment and order, the Appellate Bench was
persuaded to reject the application. The observations in paragraph 7
of the impugned judgment spell out the reasons which weighed with
the Appellate Bench to repel the contention of the petitioner. As a
severe criticism was advanced against those observations, it would be
advantageous to extract paragraph No.7 of the impugned judgment. It
reads as under :-
“7 It is pertinent to note here that the plaintiffs
have already brought the legal heirs and
representatives of the plaintiff No.2 namely Jagdish
Mohan Lachmandas Nayar on record by virtue of the
order below the application exh.19 Dt. 16.09.2016.
However, we do not find any mandatory or

compulsory provisions which compel the plaintiffs to
appoint or bring the Karta of the Hindu Undivided
Family (HUF) on record but the other plaintiffs have
rightly represented and protect the rights of the
concern parties including the suit premises for
themselves and others. Moreover, the order passed
by the Appellate Court below the application Exh.33
in Appeal No. 306 of 2009 dt. 27.01.2016 is
permissive in nature and not the directive by which
there is no reason to say that the plaintiffs have not
followed the order passed by the Appellate Court
below the application Exh.33 in Appeal No.306 of
2009 Dt.27.01.2016. Per contra, it is the sweet
choice or option of the plaintiffs being the members
of the HUF that they may or may not elect or select
or appoint the new Karta in place of the deceased
Karta or continue their family without any Karta.”
(Underline supplied)
4. Shri Yashpal Jain, the learned counsel for the petitioner urged
that the view of the Appellate Bench that there is no mandatory or
compulsory provision which would compel the plaintiffs to appoint
and bring the Karta of Hindu Undivided Family (HUF) on record and
that the plaintiff Nos.2(A) to 2(C) can represent the HUF, is plainly
erroneous. The further observations of the Appellate Bench that it is
the sweet choice or option of the plaintiffs, being the members of
HUF, to appoint the new Karta in place of the deceased Karta or
continue their family without any Karta, is also manifestly in
dissonance with the settled legal position which governs the

representation of a HUF in the proceedings instituted by or on behalf
of HUF and the express provisions contained in Order XXX Rule 10 of
the Code of Civil Procedure, 1908 (‘the Code’). The Appellate Bench,
according to the learned counsel for the petitioner, totally
misconstrued the nature of the HUF and dismissed the application
without adverting to the questions which arose for determination in
the backdrop of the governing statutory provisions and binding
precedents. Thus, the impugned judgment and order, being wholly
untenable, deserves to be quashed and set aside, and in the absence
of the successor Karta being brought on record, the suit itself is liable
to be dismissed, urged Shri Jain.
5. In opposition to this, Shri Mayur Khandeparkar, the learned
counsel for the respondent Nos.2 to 4 would urge that neither the
impugned order nor the order passed by the learned Judge on 12th
April 2019 dismissing the application for dismissal of the suit filed by
the petitioner warrant any interference. Indisputably, the respondent
Nos.2 to 4 have already been brought on record pursuant to the order
passed on the application (Exh.19) by the learned Judge on 16th
September 2016. The fact that the said order is assailed in Writ
Petition No.557 of 2017 before this Court does not impinge upon the

right of the respondent Nos.2 to 4 to prosecute the suit. As the
respondent Nos.2 to 4 are, incontestably, the co-owners of the
demised premises, the continuation of the suit by respondent Nos. 2
to 4 for eviction of the tenants cannot be questioned. The nonimpleadment
of successor Karta, for any reason, thus, does not impair
the tenability of the suit, urged Shri Khandeparkar.
6. To begin with, it is necessary to note the nature of the
proceeding, which has a determinative bearing on the right to sue.
Undoubtedly, the suit has been instituted for eviction of the tenants
from the demised premises on the statutory grounds provided in
section 16 of the Maharashtra Rent Control Act, 1999 (‘The Act’). It is
well neigh settled that one co-owner, in the absence of any objection
from the other co-owners, can maintain an action for eviction against
a tenant, without impleading all the co-owners. The governing
principle is the doctrine of agency. When one co-owner institutes a
suit for eviction against the tenant, it is construed as the suit having
been instituted in his own right and also as an agent of the other coowners.
What is of importance is the jural-relationship of the landlord
and tenant. Once a co-owner satisfies the description of the landlord,
the fact that the other co-owners have not joined in action pales in

significance and does not affect the maintainability of the suit. Of
course, different considerations come into play when existence of a
dispute between the co-owners as regards the institution of the very
action of eviction, is brought to the notice of the Court.
7. A profitable reference in this context can be made to a decision
of the Supreme Court in the case of Mohinder Prasad Jain Vs.
Manohar Lal Jain 2006(2) SCC 724, wherein the Supreme Court expounded the legal
position in the following words :
“10 This question now stands concluded by a
decision of this Court in India Umbrella
Manufacturing Co. & Ors. vs. Bhagabandei
Agarwalla (Dead) by Lrs. Savitri Agarwalla
(Smt.) & Ors. [(2004) 3 SCC 178] wherein this
Court opined:
"6 Having heard the learned
counsel for the parties we are satisfied
that the appeals are liable to be
dismissed. It is well settled that one of
the co-owners can file a suit for
eviction of a tenant in the property
generally owned by the co-owners.
(See Sri Ram Pasricha v. Jagannath
[(1976) 4 SCC 184] and Dhannalal v.
Kalawatibai [(2002) 6 SCC 16], SCC
para 25.) This principle is based on
the doctrine of agency. One co-owner
filing a suit for eviction against the
tenant does so on his own behalf in
his own right and as an agent of the
other co-owners. The consent of other
co- owners is assumed as taken unless
it is shown that the other co-owners
were not agreeable to eject the tenant
and the suit was filed in spite of their
disagreement. In the present case, the
suit was filed by both the co-owners.
One of the co-owners cannot withdraw
his consent midway the suit so as to
prejudice the other co-owner. The suit
once filed, the rights of the parties
stand crystallised on the date of the
suit and the entitlement of the coowners
to seek ejectment must be
adjudged by reference to the date of
institution of the suit; the only
exception being when by virtue of a
subsequent event the entitlement of
the body of co-owners to eject the
tenant comes to an end by act of
parties or by operation of law."
11 A suit filed by a co-owner, thus, is
maintainable in law. It is not necessary for the
co- owner to show before initiating the
eviction proceeding before the Rent Controller
that he had taken option or consent of the
other co-owners. However, in the event, a coowner
objects thereto, the same may be a
relevant fact. In the instant case, nothing has
been brought on record to show that the coowners
of the respondent had objected to
eviction proceedings initiated by the
respondent herein. …………………..”
8. This aspect was again considered by the Supreme Court in the
in the context of the proceedings between a landlord and tenant,
governed by the rent control legislation. The Supreme Court

enunciated that the concept of ownership and consequently the right
to sue, in such cases, has to be distinguished from the one in a title
suit. The observations in paragraph No.18 of the said judgment are
instructive and thus extracted below :
“18 It is also now a settled principle of law that
the concept of ownership in a landlord-tenant
litigation governed by Rent control laws has to be
distinguished from the one in a title suit. Indeed,
ownership is a relative term, the import whereof
depends on the context in which it is used. In rent
control legislation, the landlord can be said to be the
owner if he is entitled in his own legal right, as
distinguished from for and on behalf of someone else
to evict the tenant and then to retain control, hold
and use the premises for himself. What may suffice
and hold good as proof of ownership in landlordtenant
litigation probably may or may not be enough
to successfully sustain a claim for ownership in a
title suit. (vide Sheela & Ors. vs. Firm Prahlad Rai
Prem Prakash, (2002) 3 SCC 375).”
(emphasis supplied)
9. The learned counsel for the petitioner, without disputing the
generality of aforesaid proposition, endevoured to canvass a
submission that general proposition as regards the entitlement of a coowner
to sue, to evict a tenant, cannot have application to a suit
instituted by and on behalf of HUF, with equal force. A Hindu
Undivided Family (HUF) by its very character and legal connotation,
stands on a different footing. The representation of a HUF by the

Karta is the rule. Indisputably, in an appropriate case, even a person
who is not the senior-most member may act as Karta but a case for
such a representation is required to be made out, on facts.
10. The learned counsel for the petitioner, to bolster up the
aforesaid submissions, placed a strong reliance upon the judgment of
the Supreme Court in the case of Tribhovandas Haribhai Tamboli Vs.
Gujarat Revenue Tribunal & Others  (1991) 3 SCC 442, wherein the Supreme Court had
explained the position of the Karta of Hindu Undivided Family in the
matter of management of the joint family property. The observations
of the Supreme Court, in paragraph 13, on which a strong reliance
was placed by the learned counsel for the petitioner, read as under :
“13 Regarding the management of the Joint
Family Property or business or other interests in a
Hindu Joint Family, the Karta of the Hindu Joint
Family is a prima inter pares. The managership of
the Joint Family Property goes to a person by birth
and is regulated by seniority and the Karta or the
Manager occupies a position superior to that of the
other members. A junior member cannot, therefore,
deal with the joint family property as Manager so
long as the Karta is available except where the
Karta relinquishes his right expressly or by
necessary impl i cation or in the absence of the
Manager in exceptional and extra-ordinary
circumstances such as distress or calamity effecting
the whole family and for supporting the family or
in the absence of the father whose whereabouts
were not known or who was away in remote place

due to compelling circumstances and that is return
within the reasonable time was unlikely or not
anticipated. No such circumstances are available
here to attract the facts of the case.”
(emphasis supplied)
11. The learned counsel for the petitioner has placed reliance on a
Division Bench judgment of Nagpur High Court in the case of Shop of
Bhai Ganeshram Balbhadra and Anr. Vs. Firm Mangilal Balkisan and
Ors.  AIR 1952 Nag. 390, wherein the requirement of institution of the suit by or on
behalf of the members of the family, was examined. The observations
of the Court in paragraphs 15 and 16 postulate legal position. They
read as under :
“15 A suit by or against a joint Hindu
Mitakshara family may be conducted or defended as
the case may be by the karta alone in a
representative capacity or by all the members of the
family being impleaded if the karta alone is on the
record, in the event of his death substitution has got
to be made within the time limited by law either of
the succeeding karta in his representative capacity, as
was done in ‘Atma Ram Vs. Banku Mal’ 11 Lah. 598,
or of all the surviving members of the family. But in
each case the application has to be one for
substitution, which has got to be made within 90
days of the date of death. Otherwise, the suit or the
appeal as the case may be will abate. In this case,
the appeal abated as soon as 90 days elapsed from
the 23rd June 1950 and no application for substitution
had been made. That appears to have been the view
of the learned single Judge who referred this case,
and we entirely agree with that view.

16 It is not a case where all the members of
the joint family had been impleaded and the karta
died. In such a case, if all the members of the joint
family at the time of the death of the deceased karta
are already on record, the case would be governed
by Rule 2 of Order 22. Only an entry to that effect
will have to be made in the record, and the suit or
the appeal as the case may be, would proceed
without anything further being necessary to be done.
There is ample authority for the proposition that
even if the karta is on the record but not as such,
that is to say, he has been impleaded in the
litigation along with the other members of the joint
family and if one of the members died leaving him
surviving not only the members who are already on
record but some other members who may have come
into existence during the pendency of the litigation,
it is necessary under the law to make substitution in
place of the deceased party, and it will not do
simply to say that the karta is already on the record
: see in this connextion the Bench decisions of the
Patna High Court in ‘Lilo Sonar Vs. Jhagru Sahu’, 3
Pat. 853 and ‘Basist Naraya Singh V. Modnath Das’,
7 Pat. 285 and the case therein mentioned.”
12. Per contra, Shri Mayur Khandeparkar stoutly submitted that it is
not an immutable rule of law that the Karta must represent the HUF
in a suit for eviction instituted against the tenant. A co-owner is
equally competent to prosecute the suit for the purpose of regaining
possession of the demised premises. The aforesaid judgment of the
Supreme Court in the case of Tribhovandas Haribhai Tamboli (Supra)
has been construed and explained by the Supreme Court in the
judgment in the case of Nopany Investments (P) Ltd. Vs. Santokh

Singh (HUF) 5, urged Shri Khandeparkar.
13. In the case of Nopany Investments (P) Ltd. (Supra), one Jasraj
Singh had instituted proceeding for eviction before the Additional Rent
Controller claiming himself to be the Karta of Dr. Santokh Singh
(HUF), when an elder member of the said HUF was alive. A challenge
to the tenability of the proceeding at the instance of Jasraj Singh was
mounted on behalf of the tenant. The Supreme Court, inter-alia,
framed the following question :
“(i) Whether Jasraj Singh could file the suit
for eviction, in the capacity of the Karta of Dr.
Santokh Singh HUF, when, admittedly, an elder
member of the aforesaid HUF was alive ?”
14. The Supreme Court, after adverting to the pronouncement in the
cases of Sushil Kumar (Sunil Kumar) and another Vs. Ram Prakash
and others6 and Tribhovandas Haribhai Tamboli (Supra), on which
reliance was placed on behalf of the tenant in support of the
objection, enunciated that the decision in the case of Sunil Kumar and
another (Supra), does not hold that when the elder member of a joint
Hindu family is alive, the younger member would not at all be
5 (2008) 2 SCC 728
6 (1988) 2 SCC 77

entitled to act as a manager or Karta of the joint family.
15. The Supreme Court explained the import of the judgment in the
case of Tribhovandas Haribhai Tamboli (Supra) in the following
words:-
“9 From a careful reading of the observation of this
court in Tribhovandas's case [supra], it would be evident
that a younger member of the joint hindu family can deal
with the joint family property as manager in the
following circumstances :- (SCC P. 450, para 13)
(i) if the senior member or the Karta is
not available;
(ii) where the Karta relinquishes his right
expressly or by necessary implication;
(iii) in the absence of the manager in
exceptional and extra ordinary circumstances
such as distress or calamity affecting the
whole family and for supporting the family;
(iv) in the absence of the father :-
(a) whose whereabouts were not
known or
(b) who was away in a remote
place due to compelling
circumstances and his return within
a reasonable time was unlikely or
not anticipated. Therefore, in
Tribhovandas's case [supra], it has
been made clear that under the
aforesaid circumstances, a junior
member of the joint hindu family
can deal with the joint family
property as manager or act as the
Karta of the same.”

16. The aforesaid exposition of law makes it abundantly clear that
there is no restraint in law on a younger member of the joint family
dealing with joint family property as a Manager or Karta thereof in
certain circumstances, which necessitate the discharge of such duties
by a younger member.
17. The learned counsel for the petitioner urged that the learned
Judge as well as the Appellate Bench completely lost sight of the
provision contained in Order XXX Rule 10 of the Code. The
propositions of Hindu Law, as regards the representation to be made
by Karta, according to the learned counsel for the petitioner is
required to be applied in the context of the provisions contained in
Order XXX Rule 10. The observations of the Appellate Bench that
there was no obligation at all to bring the successor Karta on record
is, according to the learned counsel for the petitioner, in the teeth of
the provisions contained in Order XXX Rule 10, which reads as
under :-
“ORDER XXX- SUITS BY OR AGAINST
FIRMS AND PERSONS CARRYING ON
BUSINESS IN NAMES OTHER THAN
THEIR OWN :

10. Suit against person carrying on
business in name other than his own—
Any person carrying on business in a
name or style other than his own name,
or a Hindu undivided family carrying on
business under any name, may be sued in
such name or style as if it were a firm
name, and, in so far as the nature of
such case permits, all rules under this
Order shall apply accordingly.”
18. To butress the submission of applicability of the aforesaid
provision in the matter of institution and continuation of a suit by a
Hindu Undivided Family, the learned counsel for the petitioner, placed
a very heavy reliance upon a judgment of this Court in the case of
Nergish Minoo Pavri & Anr. Vs. Pramod Kishanchand Gupta (2010) 1 Mah. L J 264. In the
said case, the suit was instituted by the petitioner for declaration of
tenancy against the predecessor-in-title of the respondents,
Kishanchand P. Gupta, Karta/Manager of Hindu Undivided Family of
Kishanchand P. Gupta. The suit was decreed. On the date, the appeal
was preferred by the HUF, said Kishanchand P. Gupta was not alive.
Pramod Gupta, the son of Kishanchand P. Gupta took out a notice of
motion seeking deletion of Kishanchand P.Gupta and permission to
represent Kishanchand P. Gupta. The said notice of motion was
allowed by the Appellate Bench. This Court held that the Court below has, without understanding the basic difference between a “firm” and
a “HUF”, allowed the application filed by the respondent. A HUF
needs to be represented by Karta/Manager. In case of a HUF, if karta
dies during pendency of a suit/appeal, the successor karta will have to
come forward and apply for bringing him on record. In the process,
this Court construed the import of the provisions contained in Rule 10
as under :
“8. Rule 10 of Order 30 provides that any
person carrying on business in a name or style
other than his own name or Hindu undivided
family carrying on business under any name, may
be sued in such name or style as if it were a firm
name, and, insofar as the nature of such case
permits, all rules under Order 30 shall apply
accordingly. From bare perusal of this provision, it
is clear that when a HUF is "to be sued", it may
be sued in the name in which it carries business.
In the present case the suit was filed against the
HUF showing Kishanchand Gupta as its
karta/manager and not in other name. In other
words, the provision of rule 4(2) will apply only
where a Hindu undivided family is carrying on
business under any name, and is to be sued it
could be sued in the name or style in which it
carries its business. It needs to be noted that a
HUF cannot appear as a HUF, and the
manager/karta should, therefore, appear in his own
name, though all subsequent proceedings could be
continued in the name of HUF. A HUF need to be
represented by its karta/manager in a suit/appeal
and in the event of his death a successor
karta/manager will have to represent the HUF and
continue the proceedings. But, after disposal of a
suit and at the time of filing an appeal if karta,
who was representing the HUF in the suit dies, the
successor karta will have to file the appeal. The

appeal, in such eventuality cannot be filed in the
name of HUF, showing the deceased karta/manager
as its karta/manager. Such appeal would be a
nullity.”
(emphasis supplied)
19. According to the learned counsel for the petitioner, in the case
at hand, the situation is further accentuated by the fact there is
material on record to indicate that the HUF has indeed appointed a
Karta and yet the said Karta is not brought on record to prosecute the
suit. To lend support to this submission, the learned counsel for the
petitioner drew attention of the Court to the affidavit in reply filed by
the respondent Nos. 2 to 4 before the trial court, wherein it was
asserted that a new Karta though appointed, being a senior citizen
and residing at Dehradun, it was not possible for him to give
instructions. Attention was also invited to a notice dated 17th June
2019 purported to have been issued by the Karta/Authorized Signatory
of HUF to all the tenants of the HUF.
20. The aforesaid submissions are required to be appreciated in two
perspectives. One, the necessity of impleadment of a successor Karta.
Two, the right of the respondent Nos.2 to 4 to prosecute the suit for
eviction in the capacity of the co-owners. As regards the substitution

of the successor Karta to represent the HUF, it is pertinent to note
that the Appellate Bench, in Appeal No. 306 of 2009 arising out of
R.A.E. Suit No.660/1127/2002, which was initially instituted by the
HUF, had passed an order permitting the appellants therein to take
necessary steps for bringing the new Karta on record on or before 5th
February 2016, by an order dated 27th January 2016. It is the
grievance of the petitioner that despite the said order, the successor
Karta has not been impleaded and this fact was also downplayed by
the Appellate Bench, in the case at hand, as being one of permissive
nature.
21. The material on record thus indicates that it is the case of the
plaintiff in the instant suit and the appellants in the said Appeal No.
306 of 2009 arising out of a previous suit instituted by the HUF, that
a new karta has indeed been appointed. If the successor Karta has
been appointed, the provisions of Order XXX Rule 10 will have full
application. It is not a positive case that the Karta has not been
appointed. The pronouncement of this court in the case of Nergish
Minoo Pavri & Anr. (Supra) will, therefore, govern the representation
of the HUF in the suit.

22. This, however, does not imply that for want of impleadment of
Karta, in the peculiar facts of the case, the suit is liable to be
dismissed. Indisputably, respondent Nos. 2 to 4 have been impleaded
as the plaintiffs to the suit in the capacity of the legal representatives
of the deceased plaintiff No.2. The learned counsel for the respondent
Nos.2 to 4 was justified in advancing a submission that a decree for
eviction was also sought on the ground of personal bonafide
requirement of the deceased plaintiff No.2 and his daughter Anjalirespondent
No.4 herein. Thus, the respondent No.4, in the capacity of
being a co-owner, is entitled to prosecute the suit irrespective of the
Karta being brought on record.
23. The aforesaid submission is required to be considered in the
backdrop of the proposition that a co-owner is entitled to institute a
suit for eviction for and on behalf of all the co-owners, unless it is
shown that the other co-owners were not agreeable to the ejectment
to the tenant. It is one thing to say that a member of the family
other than, or in the absence of, a Karta, may be permitted to
prosecute the suit on account of special circumstances of a given case.
And a completely different thing to claim that despite a Karta having
been appointed, he will not be impleaded to represent the HUF sans

the existence of special circumstances. In the latter case, the tenability
of the suit, without impleading the Karta, would be in issue.
24. Reverting to the facts of the case, as the respondent Nos.2 to 4
are already prosecuting the suit, either in the capacity of the coowner
or as the legal representatives of deceased plaintiff No.2 and,
at the same time, there is a cloud of doubt over the intendment of
the HUF to prosecute the suit for eviction of the tenant, especially on
account of the fact that there being material to show that a Karta has
indeed been appointed and there is an alleged non-compliance of an
order of Appellate Bench in Appeal No.306 of 2009 to bring the Karta
on record, steps will have been taken to implead the successor Karta
in the instant suit. It would be in the fitness of things to frame and
try the issue regarding the tenability of the suit, in the event of nonimpleadment
of the successor Karta. To this extent, the observations
of the Appellate Bench to the effect that the non-impleadment of the
successor Karta has no bearing whatsoever on the tenability of the
suit are unsustainable.
25. The question as to whether the HUF as such intends to
prosecute the suit for eviction is essentially for the HUF to answer. It

would be onerous for the defendants to plead and prove that the HUF
does not want to prosecute the suit. Therefore, it would be
appropriate to provide an opportunity to the HUF to make its stand
clear, if it desires to.
26. In the aforesaid peculiar circumstances, in my view, it would be
appropriate to provide an opportunity to the HUF to bring the
successor Karta on record, within a stipulated period, and, in the
event of default, frame and try the issue of tenability of the suit for
eviction at the instance of HUF, as such, without bringing Karta on
record, and plaintiff Nos. 2 to 4, in the capacity of the co-owners of
the demised premises. The petition, therefore, deserves to be allowed.
27. Hence, the following order :-
O R D E R
The petition stands allowed in the following terms :
(a) The HUF may bring on record the
successor Karta and accordingly amend the
cause title of the plaint within a period of
one month from today.
(b) In the event, the Successor Karta is

not brought on record, the trial court shall
frame, try and decide the following issues
along with the other issues, which may
arise for determination, on the basis of the
pleadings of the parties :
(i) Whether the suit is tenable in the
absence of successor Karta being brought
on record?
(ii) Whether the plaintiff Nos.2(a) to
2(c) can independently maintain the
action for eviction in the absence of
successor Karta being brought on record?
(c) No costs.
Rule is made absolute in the aforesaid terms.
[ N.J. JAMADAR, J. ]

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