In a significant ruling, the Bombay High Court has held that where a Karta has not been appointed, any member of the HUF may represent the family in the capacity of a co-owner, in a suit for eviction of tenants from the demised premises.
Justice NJ Jamadar clarified that for a member of HUF to institute and maintain a suit on behalf of the family, two conditions must be satisfied:
It was stated that in case the HUF had a Karta, he will have to be impleaded, in addition to the co-owner of the property.
"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," the court observed.
In the present case, the Petitioner had challenged the order of a revision court regarding maintainability of the suit for eviction filed by a member of the HUF property. He relied on Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal & Others, (1991) 3 SCC 442, to contend that the Karta is a prima inter pares in matters of management of the Joint Family Property.
He submitted that the impugned suit was filed in violation of Order XXX Rule 10 of CPC, which confers a statutory obligation that a suit on behalf of the HUF may be maintained by a Karta only.
"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," he had submitted.
The Respondents however contended 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," they submitted.
It was submitted 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 co-owners.
While the high court concurred with the aforesaid submission set forth on behalf of the Respondent, it also observed that in case a Karta had been appointed, it was crucial to implead him as a party to the suit.
"…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… It would be in the fitness of things to frame and try the issue regarding the tenability of the suit, in the event of non-impleadment of the successor Karta," the court held.
Taking note of the Petitioner's submission that a Karta had been appointed for the HUF, the court issued directions to implead the Karta, and, in the event of default, frame and try the issue of tenability of the suit for eviction at the instance of HUF.
In case of an adverse finding, the court directed, it would be appropriate to provide an opportunity to the HUF to make its stand clear as to whether it intends to prosecute the suit for eviction.
Case Title: Madhuri Doulatram Choitram v. Lachmandas Tulsiram Nayar & Ors.
Case No.: WP No. 9267/2019
Quorum: Justice NJ Jamadar
Appearance: Advocates Yashpal Jain, Smita Chaudhary, Mitchelle Almeida, Ajay More, Aditi Harash and M/s Haresh Jagtiani & Associates (for Petitioner); Advocates Anita Castellino, Bruno Castellino, Mayur Khandeparkar, Rahul C. Mestry and Dhwani Shah (for Respondents)
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