Any member of the HUF being the co-owner may be permitted to prosecute the suit only in the absence of Karta

Harshit Sharma | Amity Law School, Madhya Pradesh | 21st January 2020

Madhuri Doulatram Choitram V/s.  Lachmandas Tulsiram Nayar & Ors.
Writ Petition No. 9267/2019

FACTS OF THE CASE

1. 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 27^th February, 2009.
2. 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.
3. Jagdish Mohan Lachman Das Nayar and Brijmohan Lachmandas Nayar, the Karta and the Manager of the HUF also died. 
4. 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.
5. 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.
6. 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.
7. Thus the present Writ Petition was preferred. 

ISSUES RAISED

1. Whether the suit is tenable in the absence of successor Karta being brought on record?
2. 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?

RULING OF THE COURT/ THE COURT HELD THAT

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 and (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, while observing the following findings: 

1. 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. 
2. “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.”
3. “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 and “A co-owner is equally competent to prosecute the suit for the purpose of regaining possession of the demised premises. “

“…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.”