Supreme Court of India
MOHD. HUSSAIN (DEAD) BY LRS. AND ORS.versusGOPIBAI AND ORS.
- Citation
- 2008 INSC 215
- Decided
- 19 February 2008
- Disposal
- Case Allowed
- Bench
- A K MATHUR
Holding
The appeal is allowed; the second appeal does not abate and the suit for redemption is maintainable despite the non‑joinder of the two married daughters because their interests were represented by their brothers.
Summary
The Supreme Court examined two questions arising from a suit for redemption of a mortgage. First, it held that the second appeal did not abate despite the death of respondent Mohd. Hussain because some of his heirs were already on record, and the only procedural step required was to note his death and adjust the parties. Second, the Court ruled that the suit was maintainable even though two married daughters of the deceased mortgagee Nandram were not impleaded, as their interests were adequately represented by their brothers, who were parties to the suit, and there was no fraud or collusion. The Court affirmed the findings of the lower courts that the mortgage was valid and the appellants were entitled to redemption. Consequently, the High Court's judgment was set aside and the appeal was allowed.
Issues considered
- Whether the death of a party during pendency of a second appeal, without an application for substitution of heirs, causes the appeal to abate.
- Whether a suit for redemption of mortgage is maintainable when two married daughters of a deceased mortgagee are not impleaded as necessary parties.
Legislation cited
Subjects
abatementsecond appealsubstitution of partiesnon‑joinder of necessary partiesmortgage redemptionsubstantial representationHindu Succession Actcivil proceduredecree binding on heirs
Judgment
t
[2008] 2 S.C.R. 1218
A MOHD. HUSSAIN (DEAD) BY LRS. AND ORS.
II. """
GOPIBAI AND ORS.
(Civil Appeal No. 912 of 1999)
FEBRUARY ,1fil 2008
B
[A.K. MATHUR AND TARUN CHATTERJEE, JJ.]
Abatement - Of second appeal - Death of one of
respondent - No application for substitution of his heirs and
c LRs made e,ven till signing of judgment - Plea of appellant '
that second appeal abated in its entirety on death of deceased
respondent - Held: Not tenable as some of heirs and LRs of
deceased respondent were already on record in the file of
second appeal - T.herefore question of abatement of seco_nd
·D appeal on death of the respondent would not arise - The only
requirement under the law was to take note of his death and
delete his name from array of respondents in· second appeal "f
and add names of rest of heirs and LRs not on record.
Party - Non-joinder of necessary party - Mortgagor
E entering into mortgage with mortgagee father and his two sons
- Mortgagee-father died - Suit for redemption of mortgage
against sons mortgagees - Decreed by trial court - Affirmed
by first appellate court - High Court set aside the concurrent
findings of courts below on the ground of non-joinder of two
F married daughters of deceased mortgagee - Justification of
- Held: Not justified as sons of deceased mortgagee who were
also mortgagees were already representing interest of
deceased mortgagee - There was no a/legation that two
daughters were not made parties co/lusively or fraudulentfy -
There was concurrent findings by courts below that one
G
daughter had died and the other daughter had no interest in
~
suit premises as she was not residing with father at the time of
his death - High Court erred in interfering with the findings in
''
second appeal.
H 1218
__,
MOHD. HUSSAIN (DEAD) BY LRS. AND ORS. v. 1219
GOPIBAI AND ORS.
On 24.4.1932, one 'H' entered into a mortgage with A
-.-
possession of suit premises with one 'N' and his two sons
Defendant No.1and2 for Rs.300/-. In 1967, appellants who
were heirs of 'H', filed suit against Defendant no.1 and 2
and their sons for redemption of mortgage of suit
premises. At the time of filing of the suit, 'N' was aiready B
dead leaving behind his two sons and two married
,. d·aughters.
The respondents contested the suit on the ground
that the suit was bad on account of non-joinder of parties
as two married daughters of 'N' were not made parties. c
Responderits also pleaded adverse possession in respect
of suit premises.
Trial Court decreed the suit. First appellate Court
upheld the decision of trial Court. On appeal, High Court
D
set aside the concurrent findings of lower courts holding
)'
that the suit was bad on account of non-joinder of parties.
In appeal to this Court, two questions for
consideration were whether the second appeal of the
respondents 1 to 4 had abated as they had failed to make E
an application to bring the legal heirs and representatives
of 'H', who had died during the pendency of the second
. appeal and whether In the absence of the two married
daughters of one of the mortgagees, the suit for
redemption could be dismissed on account of their non- F
..., impleadment.
-( Allowing the appeal, the Court
HELD: 1. The mortgagor 'H' had died on 19.11.1991.
The application for substitution after setting aside
G
abatement was filed by the appellants in the second
>
> appeal to bring on record the heirs and legal
- representatives of the deceased 'H' on 3.3.1992 after the
judgment was already signed by the Judge. Admittedly
some of the heirs and legal representatives of 'H' were
H
1220 SUPREME COURT REPORTS [2008) 2 $.C.R.
A already on record in the file of the second appeal. Such ~
being the position, the question of abatement of the
second appeal on the death of 'H' would not arise at all as
some of his heirs and legal representatives were on
record. Only the question of noting the death of 'H' could
B arise and deletion of his name from the array of ('
respondents in the second appeal. That being the position, I·
r
even if the judgment was delivered after the death of 'H'
whose entire body of heirs and legal representatives were
-r ,_
I
'
I,
not brought on record, even then the only requirement
under the law was to take note of the death of 'H' and delete
c his name from the array of respondents in the second
appeal and the rest of the heirs and legal representatives
who were not brought on record could be added in the
cause title of the memorandum of appeal. Therefore, it
would be considered too technical to set aside the entire
D judgment of the High. Accordingly, the first question is
decided in favour of the respondents. [Para 3] [1224-G, H; ..,
1225-A-F]
2. The High Court was not justified in dismissing the
E suit of the appellants at the second appellate stage on
the ground of non-joinder of necessary parties when,
admittedly, the two sons of the deceased mortgagee, who
were also mortgagees in respect of the suit premises, were >-
i
already representing the estate of the deceased
mortgagee. It is true that. in a suit for redemption of ,.I -
F mortgage, all the heirs and legal representatives of the )'
deceased mortgagee are necessary parties but, in the
facts and circumstances of the present case, even in the I-
absence of the two married daughters, the suit is
maintainable in law, for two reasons. Firstly, it was the
G finding of the first appellate court that at the time of filing
of the suit for redemption, one of the mortgagees 'N' was ~
a.lready dead. A finding was also made that one of the .,__
'
married daughters was dead. If this finding is accepted, 'c
then deceased daughter cannot be said to be a necessary
H party at the time of filing of the suit. So far as the other
MOHD. HUSSAIN (DEAD) BY LRS. AND ORS. v. 1221
GOPIBAI AND ORS.
~ married daughter is concerned, the. finding of the A
appellate court was to the effect that she was not in
occupation of the suit premises nor was she staying with
the mortgagee 'N' at the time of his death. Again, if this
finding is also accepted, the suit would be maintainable
in law in the absence of the tw·o married daughters. B
Secondly, even assuming that the two married daughters
of 'N' were necessary parties, then also the interest of the
two married daughters in the estate of 'N' was sufficiently
represented by their two brothers. [Para 9] [1229-D-H;
' 1230-A, B] c
N.K. Mohd. Sulaiman Sahib v. N. C. Mohd. Ismail Saheb
and Ors. AIR (1966) SC 792 - relied on.
Girdhar Parashram Kirad v. Firm Motilal Champa/al,
Owners, Hiralal Champa/al and Ors. AIR (1941) Nagpur 5
(DB); Ghanaram and Ors. v. Balbhadra Sai and Ors. AIR D
(1938) Nagpur 32; Sunitibala Debi v. Ohara Sundari Debi
and Anr. AIR (1919) PC 24; Rudra Singh v. Jangi Singh and
Other AIR 1915 Oudh 29; Saeed-ud-din Khan v. Hiralal (1914)
24 IC 25 - affirmed.
E
., 3. Ordinarily the Court does not regard a decree
binding upon a per:son who was not impleaded eo nomine
in the action. But to that rule there are certain recognized
--< exceptions. Where by the personal law governing the
absent heir the heir impleaded represents his interest in
the estate of the deceased, there is yet another exception F
which is evolved in the larger interest of administration of
justice. If there be a debt justly due and no prejudice is
shown to the absent heir, the decree in an action where
the plaintiff has after bona fide enquiry impleaded all the
heirs known to him will ordinarily be held binding upon G
all persons interested in the estate. The Court will
undoubtedly investigate, if invited, whether the decree
was obtained by fraud, collusion or other means intended
to overreach the Court. The Court will also enquire
whether there was a real contest in the suit, and may for H
~
"
' 1222 SUPREME COURT REPORTS [2008] 2 S.C.R. ·
A that purpose ascertain whethe·r there was any special
defence which the absent defendant could put forward,
but which was not ,put forward. Where however on
account of a bona fide error, the plaintiff seeking relief
institutes his suit against a person who is not representing
B the estate of a deceased person against whom the plaintiff
has a claim either at all or even partially, in th~ absence of
fraud or collusion or other ground which taint the decree,
a decree passed against the persons impleaded as heirs
binds the estate, even though other persons interested
i
in the estate are not brought on the record. [Para 9]
c [1230-D-H; 1231-A]
4.1 The two sons of 'N' who were also the original
mortgagees along with 'N', duly represented the estate of
'N'. It was not the case of the respondents either In the
D written statement or in evidence that the tWo married
daughters were not made parties collusively or
fraudulently. The suit filed by the appellants only against
the two sons of 'N' and their sons was not out of fraud or
collusion between them; It Is also clear from the record
E 'that the two sons of 'N' seriously contested the suit and
also the appeal before the first appellate court and finally
the second appeal In the High Court. Therefore, it cannot ~-
be said that the suit was filed by the appellants in
collusion or fraud with the two sons of 'N'. In the absence
of such a defence,· It must be held that the estate of 'N',
F one of the mortgagees, was sufficiently and In a bona fide )'
manner represented by his sons and there was no fraud
or collusion between them and the appellants and
accordingly, the decree that would be passed against
heirs and legal representatives of 'N' also binds the estate
G even though the two married daughters, who may be
. Interested In the estate, were not brought on record. That ....
being the concurrent findings of fact arrived at by the
courts below, it was not open to the High Court at the )
second appellate stage to hold that the suit was not )~
H maintainable in law as the two married daughters of 'N'
.
'
MOHD. HUSSAIN (DEAD) BY LRS. AND ORS. v. 1223
GOPIBAI AND ORS. [TARUN CHATTERJEE, J.]
were not made parties to the suit for redemption. A
~ [Paras 10,12] [1231-G; '1232-A-D; 1234-A, B]
Surayya Begum (Mst) v. Mohd. Usman and others (1991)
3 sec 114 - relied on.
Kanakarathanammal v. Loganatha Mudaliar and B
another AIR (1965) SC 271 - referred to.
4.2. While allowing the second appeal, the High Court
had not considered the same on merits but in view of the
stand taken by the respondents there is no reason to
upset the findings of the courts below on merits viz., the c
suit premises was mortgaged with the respondents at a
sum of Rs. 300/- and therefore, the appellants were entitled
to a decree in the suit for redemption. Since, this finding
' '
was not challenged by the respondents, it is not necessary
to remit the case back to the High Court for a decision on D
merits. [Para 13] [1234-C, D]
,. ' CIVILAPPELLATE JURISDICTION: Civil Appeal No. 912
of 1999
From the Judgment and decree dated 28/2/1992. of the E
High Court of Madhaya Pradesh, Bench at Indore in S.A. No.
27/1978.
S.K. Gambhir, Anil Sharma, B.K. Sharma and H.K. Puri
for the Appellants.
F
Alok Bachawat, Sameena Ahmed and Harinder Mohan
Singh for the Respondents.
The Judgment of the Court was delivered by
TARUN CHATTERJEE, J. 1. This appeal is directed
G
against the judgment dated 28th of February, 1992, which was
delivered on 20th of March, 1992 by a learned judge of the High
~
Court of Madhya Pradesh at Indore in Second Appeal No. 27/
1978 whereby the concurrent judgments of the courts below
~ decreeing the suit for redemption, of mortgage filed by the
llllf H
~
1224 SUPREME COURT REPORTS [2008] 2 S.C.R.
A appellants against the respondents were set aside practically
on the ground that the suit for redemption could not be held to ~
be maintainable in law in the absence of the two married
daughters of one of the mortgagees.
2. Before we narrate the facts leading to the filing of this
B appeal, we may note the two questions which were posed by
the learned counsel for the parties and need to be decided in
this appeal, which are as follows: - ¥
i) Whether the second appeal of the respondents 1 to 4
c herein, who were the appellants in the High Court, had abated
as they had failed to make an application to bring the legal heirs
and representatives of Mohd. Hussian, one of the respondents·
in the High Court who had died during the pendency of that
second appeal?
D ii) Whether in the absence of the two married daughters of
one of the mortgagees, it could be held that the suit for
redemption of mortgage was not maintainable in law, that is to
say the suit for redemption could be dismissed on account of
their non-impleadment?
E 3. Let us, therefore, take up the first question for our
decision. The question is whether the second appeal, which
was filed by the respondents 1 to 4, had abated in its entirety on
the death of Mohd. Hussain. Mr. Gambhir, the learned senior
.F counsel appearing for the appellants contended that in view of
the finding that one of the respondents in the second appeal
viz., Mohd. Hussain had died, and no application for substitution .,.
of his heirs and legal representatives was made even till the
signing of the judgment, the second appeal had abated in its
entirety and therefore, until and unless the abatement caused
G on the death of Mohd. Hussain was set aside, the judgment in
the second appeal is liable to be set aside without going into
the merits of the same. From the record, it appears that Mohd.
Hussain had died on 19th of November, 1991. It is true that the
application for substitution after setting aside abatement was
H filed by the·appellants in the second appeal to bring on record ''
MOHD. HUSSAIN (DEAD) BY LRS. AND ORS. v. 1225
GOPIBAI AND ORS. [TARUN CHATTERJEE, J.]
the heirs and' legal representatives of the deceased· Mohd. A
}- Hussain on 3rd of March, 1992 after the judgment was already
signed by the learned judge. It is an admitted position that some
of the heirs and legal representatives of Mohd. Hussain were
already on record in the file of the second appeal. Such being
the position, in our view, the question of abatement of the second B
appeal on the death of Mohd. Hussain could not arise at all as
some of his heirs and legal representatives were admittedly on
record. Only the question of noting the death of Mohd. Hussain
could arise and his name could be deleted from the array of
respondents in the second appeal. That being the position, even C
if the judgment was delivered after the death of Mohd. Hussain
whose entire body of heirs and legal representatives were not
brought on record, even then the only requirement under the law
was to take note of the death of Mohd. Hussain and delete his
name from the array of respondents in the second appeal and
0
the rest of the heirs and legal representatives who were not
brought on record could be added in the cause title of the ·
memorandum of appeal. Therefore, in our view, it would be
considered too technical to set aside the entire judgment of the
High Court on the ground of not bringing the entire body of heirs . ·
and legal representatives of Mohd. Hussain because some of E
his heirs and legal representatives were on record and the left
out heirs and legal representatives were sufficiently represented
by the other heirs on record. Accordingly, the first question, as
posed hereinabove, is decided in favour of the present
respondents. F
4. We may now narrate the relevant facts leading to the
filing of this appeal. On 24th of April, 1932, late Hasan Ali entered
into a mortgage with possession of the suit premises with late
Nandram and his two sons, Manaklal and Motilal for Rs. 300/-. G
On or about 17th of July, 1967, a suit was brought by
Hussainabai, Sugrabai and Mohd. Hussain, being hefrs of
Hasan Ali, (appellants herein) against Manaklal and Motilal
(defendant Nos. 1 and 2) and their sons (proforma defendant
- Nos. 3 and 7) for redemption of mortgage of the ~uit premises,
H
1226 SUPREME COURT REPORTS [2008) 2 S.C.R.
A as fully described in the schedule of the plaint. At the time of ~
filing of the suit for redemption of mortgage by the plaintiffs/
appellants, Nandram was aiready dead leaving behind his two
sons viz., Manaklal and Motilal and two married daughters viz.,
Annapurna and Pyaribai. It was the case of the plaintiffs/
B appellants that the respondents were avoiding to let the
appellants have the suit premises redeemed and that the
respondents had the intention to deprive them of the suit
premises. Accordingly, on the allegations made in the plaint,
the plaintiffs/appellants sought for a decree in the suit for
c redemption in respect of the suit premises. The suit was
contested by the respondents in which it was, inter alia, alleged
that the suit premises was in fact sold by Hasan Ali, since
deceased, to them and accordingly, the appellants could- not
demand account from them. It was further alleged that the suit
was bad on account of non-joinder of parties as all the legal
D
heirs of Nandram, namely the two married daughters Annapurna
and Py·aribai were not made parties although they were
necessary parties. A case of adverse possession was also
pleaded by the respondents in respect of the suit premises.
Accordingly, the respondents pleaded that the suit must be
E dismissed not only on merits but also on the ground of non-
joinder of parties.
5. The suit of the appellants was decreed ir"which the trial
court found that the appellants were the legal heirs of Has.an Ali
and had the right to redeem the mortgage and to recover the
..,.. .•
F
suit premises from the respondents. The plea of adverse
possession raised by the respondents was rejected and the
plea of respondents that the suit was not maintainable in law in
the absence of the two married daughters of Nandram, one of
the mortgagees, was also rejected.
G
6. Feeling aggrieved, an appeal was carried to the
~
appellate court, which was also dismissed. The first appellate
court held that since the two married daughters were not residing ~
with Nandram at the time of his death, they were not necessary
.......
H parties in the suit for redemption. It was also the finding of the
MOHD. HUSSAIN (DEAD) BY LRS. AND ORS. v. 1227
GOPIBAI AND ORS. [TARUN CHATTERJEE, J.]
first appellate court that out of the two married daughters of A
Nandram, Annapurna was not alive. So far as the other daughter
was concerned, the appellate court held that at the time of the
death of Nandram, she was not residing with him ahd, therefore,
she was also not a necessary party in the suit. It was further
found that the married daughters of Nandram were not in B
possession of the suit premises and that since the suit was not
for partition of the suit premises in which the interest of the
married daughters could be considered, they were not
necessary parties. Finally, it was held that since Ochchalal-0.W.1
had clearly deposed that the partition of the suit premises was C
already done and after partition, the suit premises had come to
his share and therefore, the married daughters of Nandram had
no interest in the same and accordingly, they were not necessary
parties.
7. Aggrieved· by the decision of the First Appellate court, D
which affirmed the judgment of the Trial Court, the respondents
preferred a second appeal in the High Court. The High Court,
as noted herein earlier, had set aside the concurrent judgments
of the courts below and held that the suit was bad and liable to
be dismissed because the two married daughter.s of Nandram, E
who were necessary parties to the suit for redemption, had not
been made parties. However, the findings of the courts below
to the extent that the two married qaughters were not necessary
parties on the death of Nandram, one of the mortgagees, for
the reasons that at the time of his death, they were neither living F
with him nor were in occupation of the suit premises and that
one of the daughters viz., Annapurna was already dead, were
not considered by the High Court. Therefore, so far as the merits
of the second appeal were concerned, the High Court had not
considered the same and allowed the second appeal on the G ,
ground of non-joinder of necessary parties. On the question of
theory of substantial representation of the two married daughters
of Late Nandram by his two sons, it was held that the same
would not salvage the case of the plaintiffs/appellants in the facts
and circumstances of the case. It is this judgment of the High H
· 1228 SUPREME COURT REPORTS [2008] 2 S.C.R.
A Court, which is impugned in this appeal.
~
8. As noted herein earlier, the second question, which
needs to be looked into and decided in this appeal is whetl1er
the two married daughters of Nandram viz., Annapurna and
Pyaribai were necessary parties to the suit for redemption of
B mortgage, that is to say whether in their absence, the suit was
mainta.inable in law. The High Court in the impugned judgment
had relied on Section 19 of the Hindu Succession Act, 1956 ¥
and held that since the two sons and the two married daughters
of Late Nandram had succeeded to his estate as tenants-in-
c common and not as joint tenants, the suit was not maintainable
in law in the absence of the two married daughters. In support
of its conclusion that the suit was not maintainable in the
absence of the two married daughters, reliance was placed by
the High Court on the following cases: -
D
(a) Girdhar Parashram Kirad Vs. Firm Motilal
Champa/al, Owners, Hiralal Champa/al and others [AIR
~
1941 Nagpur 5] (DB)
(b) Ghanaram and others Vs. Balbhadra Sai and other
E [AIR 1938 Nagpur 32]
( c) Sunitibala Debi Vs. Dhara Sundari Debi and
another [AIR 1919 PC 24]
(d) Rudra Singh Vs. Jangi Singh and other [AIR 1915
F Oudh 29] •,
~
(e) Saeed-ud-din Khan Vs. Hira/al [1914 24 IC 25]
Accordingly, the High Court had negatived the contention
of the present appellants that the doctrine of substantial
G representation would come to their aid in the facts and
circumstances of the case and held that the defendants/
respondents did not represent the interest of the two married ....
daughters and therefore, in their absence, the respondents could
not have given a valid discharge to the appellants. Another
ground on which the High Court had set aside the judgments of
H
MOHD. HUSSAIN (DEAD) BY LRS. AND ORS. v. 1229
GOPIBAI AND ORS. [TARUN CHATTERJEE, J.]
,. the courts below was that since the objection as to non-joinder
was taken at the earliest opportunity by the respondents and
A
the appellants without rectifying the said defect had proceeded
with the hearing of the said suit, the question of making good
the defect, which was fatal, could not be corrected at the second
appellate stage. It was also held by the High Court that if the B
appellants were afforded an opportunity of rectifying the defect
·as to the non-joinder of parties at that belated stage, the suit
" must fail on the ground of limitation. Reliance in this regard was
placed by the High Court in the case of Kanakarathanammal
Vs. Loganatha Mudaliar and another [AIR 1965 SC 271]. c
9. Keeping the ~foresaid findings of the High Court as well
as the courts below in mind, let us now examine whether the
High Court was justified in dismissing the suit.of the plaintiffs/
appell~nts at the second appellate stage on the ground of non-
joinder of necessary parties when, admittedly, the two sons of D
the deceased mortgagee, who were also mortgagees in respect
of the suit premises, were already representing the estate of
the deceased mortgagee. The High Court, as noted herein
earlier, held that the two married daughters of Nandram, one of
the mortgagees, were necessary parties in the suit for E
redemption of mortgage and in their absence, the suit was not
maintainable in law. We are unable to endorse the views
expressed by the High Court. It is true that in a suit for redemption
of mortgage, all the heirs and legal representatives of the
deceased mortgagee are necessary parties but, in the facts F
and circumstances of the present case, we· do not find any
reason to agree that in the absence of the two married
daµghters, the suit could not be maintainable in law, for at least
two reasons: -
i) It was the finding of the first appellate court that at the G
time of filing of the suit for redemption, one of the mortgagees
1' viz., Nandram was already dead. A finding was also made that
one of the married daughters viz., Annapurna was dead. If this
'
finding is accepted, then Annapurna cannot be said to be a
necessary party at the time of filing of the suit. So far as the H
1230 SUPREME COURT REPORTS . (2008] 2 S.C.R.
A other married daughter viz., Pyaribai is concerned, the finding
of the appellate court was to the effect that she was not in ....
occupation of the suit premises nor was she staying with the
mortgagee viz., Nandram at the time of his death. Again, if this
finding is also accepted, we are not in a position to hold that the
B suit could not be held to be not maintainable in law in the
absence of the two married daughters.
ii) Even assuming that the two married daughters "f
of Nandram were necessary parties, then also, we must hold
that the interest of the two married daughters in the estate of
c Nandram was sufficiently represented by their two brothers viz.,
Manaklal and Motilal. In the case of N.K. Mohd. Sulaiman
Sahib Vs: N.C. Mohd. Ismail Saheb and others [AIR 1966
SC 792], this court in paragraph 14 observed as follows: -
"14. Ordinarily the Court does not regard a decree binding
D
u{JfJn a person who was not impleaded eo riomine in the
action. But to that rule there are certain recognized
exceptions. Where. by the personal law governing the
absent heir the heir impleaded represents his interest in
the estate of the deceased, there is yet another exception
E which is evolved in the larger interest of administration
of justice. If there be a debt justly due and no prejudice
is shown to the absent heir, the decree in an action where
the plaintiff has after bona fide enquiry impleaded all the
heirs known to him will ordinarily be held binding upon
F all persons interested in the estate. The Court will
'\
undoubtedly investigate, if invited, whether the decree
was obtained by fraud, collusion or other means intended "'
to overreach ·the Court. The Court will a/so enquire
whether there was a real contest in the suit, and may for
G that purpose ascertain whether there was any special
defence which the absent defendant could put forward,
but which was not put forward. Where however on account ~
of a bona fide error, the plaintiff seeking relief institutes
his suit against a person who is not representing the "
H estate of a deceased person against wh9m the plaintiff
.. MOHD. HUSSAIN (DEAD) BY LRS. AND ORS. v.
GOPIBAI AND ORS. [TARUN CHATTERJEE, J.]
1231
~ has a claim either at all or even partially, in the absence A
of fraud or collusion or other ground which taint the decree,
a decree passed against the persons impleaded as heirs
binds the estate, even though other persons interested
in the estate are not brought on the record. This principle
applies to all parties irrespective of their religious B
persuasion." (Emphasis supplied)
From a bare reading of the aforesaid observation of this
court in the abovementioned decision, it is clear that ordinarily
the court does not regard a decree binding upon a person who
was not impleaded in the action. While making this observation, c
this court culled out some important exceptions: -
(i) Where by the personal law governing the absent heir,
the heir impleaded represents his interest in the estate of the
deceased, the decree would be binding on all the persons
D
interested in the estate.
(ii) If there be a debt justly due and no prejudice is shown
to the absent heir, the decree in an action where the plaintiff has
after bona fide enquiry impleaded all the heirs known to him will
ordinarily be held binding upon all persons interested in the E
estate.
(iii) The court will also investigate, if invited, whether the
decree was obtained by fraud, collusion or other means intended
to overreach the court. Therefore, in the absence of fraud,
~
.., collusion or other similar grounds, which taint the decree, a F
decree passed against the heirs impleaded binds the other
heirs as well even though the other persons interested are not
brought on record.
10. We find no difficulty in following the principle laid down G
by this court in the aforesaid decision. The two sons viz.,
r .Manaklal and Motilal, who were also the original mortgagees
-> along with Nandram, being the sons of Nandram, duly
represented the estate of the deceased. It was not the case of
the defendants/respondents either in the written statement or in
H
1232 SUPREME COURT REPORTS [2008] 2 S.C.R.
-
A evidence that the two married daughters were not made parties ~
collusively or fraudulently. The suit filed by the appellants only
against the two sons of Late Nandram and their sons vyas not
out of fraud or collusion between them. It is also clear from the
recor~ that the two sons of Nandram seriously contested the
B suit and also the appeal filed against the judgment of the trial
court before the first appellate court and finally the second
appeal in the High Court. Therefore, by no stretch of imagination,
it can be said that the suit was filed by the plaintiffs/appellants
in collusion or fraud with the two sons of Nandram. Therefore, in
c the absence of such a defence, it must be held that the estate of
Late Nandram, one of the mortgagees, was sufficiently and in a
bona fide manner represented by Manaklal and Motilal and there
was no fraud or collusion between them and the plaintiffs/
appellants and accordingly, the decree that would be passed
against Manaklal and Motilal as heirs and legal representatives
D
of Late Nandram also binds the estate even though the two
married daughters, who may be interested in the estate, were
not brought on record. This view is also supported by the
decision of this court in Surayya Begum (Mst) Vs. Mohd.
Usman and others [(1991) 3 sec 114). In that case, this court
E in paragraph 9 has observed as follows: -
"... This of course, is subject to the essential condition
that the interest of a person concerned has really been
represented by the others; in other words, his interest
F has been looked after in a bona fide manner. If there be It
~
y
any clash of interests between the person concerned
and his assumed representative or if the latter due to
collusion or for any other reason, ma/a fide neglects to
defend the case, he cannot be considered to be a
,,
representative ...
G
11. In view of our discussions made hereinabove and -1
following the principles laid down in the aforesaid two decisions
~
of this court, we are, therefore, of the view that the two sons had
sufficiently and in a bona fide manner represented the estate of
H the deceased Nandram and therefore, the suit could not be
;
MOHD. HUSSAIN (DEAD) BY LRS. AND ORS. v. 1233
GOPIBAI AND ORS. [TARUN CHATTERJEE, J.]
,. dismissed on that ground. It is true that the objection as to A
maintainability of the suit in the absence of the two married
•. daughters was taken in the suit itself but we should not forget
that in view of the findings arrived at by the trial court as well as
by the appellate court, the suit of the appellants was decreed
which was affirmed at the first appellate stage. In view of the B
discussions made hereinabove that the two sons of Late
Nandram had substantially represented the estate of the
deceased which binds the married daughters of Late Nandram, ·
it is not necessary for us to go into the question of limitation if
the. daughters are now allowed to be impleaded in the suit. c
~ Accordingly, it is not necessary for us to deal with the decision
of this court in Kanakarathanamma/Vs. Loganatha Mudaliar
and another [AIR 1965 SC 271] in the facts and circumstances
of the case and in view of the discussions made hereinabove.
12. For the reasons aforesaid, we are, therefore, of the D
,. view that the High Court had failed at the second appellate stage
by dismissing the suit of the plaintiffs/appellants on the ground
of non-joinder of parties because, in our view, the two sons of
Late Nandram duly, substantially and in a bona fide manner
represented the interest in the estate, if there be any, of the two E
married daughters, in the absence of any case made out of
~ fraud or collusion between the plaintiffs/appellants and the two
sons of Late Nandram. The defendants/respondents alt
throughout denied the claim of the plaintiffs/appellants made in
the suit and contended, inter alia, that the suit premises was F
l' sold to them and it was not a case of mortgage. In fact, a case
of adverse possession was made out by them i.e. it was
contended that the defendants/respondents had acquired title
to the suit premises by virtue of adverse possession. That apart,
from the findings arrived at by the appellate court, as noted herein
G
earlier, which were not challenged before us by the learned
counsel for the respondents, it is clear t~at i) one of the daughters
~
viz., Annapurna was already dead; ii) the other daughter viz.,
Pyaribai had no interest in the suit premises as she was not
residing with Late Nandram at the time of his death and iii)
H
I
.l
1234 SUPREME COURT REPORTS [2008) 2 S.C.R.
A reliance was placed on the deposition of D.W.1-0chanlal who
deposed that there was a partition of the suit premises which
...
fell in his share and therefore, it was concluded that the two
married daughter$ were not necessary .Parties .. That being the
concurrent findings of fact arrived at by the courts below, it was
B not open to the High Court at the second appellate stage to
hold that the suit was not maintainable in law as the two married
daughters of Nandram were not made parties to the suit for ...,
redemption.
13. Before we conclude, we may note that while allowing
c the second appeal, the High Court had not considered the same
on merits but in view of the stand taken by the learned counsel
..
'
for the respondents before us, we do not find any reason to
upset the findings of the courts below on merits viz., the suit
premises was mortgaged with the respondents at a sum of Rs.
't'
D 300/- and therefore, the appellants were entitled to·a decree in
the suit for redemption. Since, this finding was not challenged ·
before us by the learned counsel for the respondents, it is not ~
necessary for us to remit the case back to the High Court for a
decision on merits. Accordingly, the appeal is bound to succeed
E and is, therefore, allowed. The judgment and decree of the High
Court is set aside and that of the courts below are restored.
'There will be no order as to costs. '-'
D.G. Appeal allowed.
1;
~
"r
1
1
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