The Bombay High Court has made a significant verdict recently, by holding 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.
The judgement came out in one case titled Madhuri Doulatram Choitram v. Lachmandas Tulsiram Nayar & Ors.
The Court clarified that for a member of HUF to institute and maintain a suit on behalf of the family, two conditions must be satisfied:
- All the other members (co-owners) should not have any objection to the suit; and
- The representative members must satisfy the absence of Karta
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 held:
"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."
CASE DETAILS
In the present case, the petitioner had filed a plea challenging the order of a revision court regarding the maintainability of the suit for eviction filed by a member of the HUF property.
In his submission, he relied on Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal & Others, (1991) 3 SCC 442, to contend that the Karta is prima inter pares in matters of management of the Joint Family Property.
He further 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.
The Respondents, on the other hand, contended that it's not an immutable rule of law that the Karta must represent the HUF in a suit for eviction instituted against the tenant.
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.
It was remarked that the governing principle is the Doctrine of Agency.
What 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.
The Court on hearing up the submission, concurred with the aforesaid submission set forth on behalf of the Respondent and also observed that in case a Karta had been appointed, it was crucial to implead him as a party to the suit.
It stated:
"…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 also 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.
The Court directed that in case of an adverse finding, 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.
The judgement has been passed by Justice NJ Jamadar on 10-12-2019.
