MOHD. HUSSAIN (DEAD) BY LRS. AND ORS. v. GOPIBAI AND ORS

Citation: [2008] 2 S.C.R. 1218

Court: Supreme Court of India

Bench: A.K. MATHUR, TARUN CHATTERJEE

Case summary

MOHD. HUSSAIN (DEAD) BY LRS. AND ORS. v. GOPIBAI AND ORS.pdf

Judgment text

t [2008] 2 S. C. R. 1218 MOHD. HUSSAIN (DEAD) BY LRS. AND ORS. II. """ GOPIBAI AND ORS. (Civil Appeal No. 912 of 1999) FEBRUARY ,1fil 2008 [A. K. MATHUR AND TARUN CHATTERJEE, JJ. ] Abatement - Of second appeal - Death of one of respondent - No application for substitution of his heirs and LRs made e,ven till signing of judgment - Plea of appellant ' that second appeal abated in its entirety on death ofdeceased 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 appeal on death of the respondent would not arise - The only ·D 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 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 married daughters of deceased mortgagee - Justification of - Held: Notjustified 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 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. __, GOPIBAI AND ORS. On 24. 4. 1932, one 'H' entered into a mortgage with -.

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 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. 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 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 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- ... , impleadment. ( Allowing the appeal, the Court HELD: 1. The mortgagor 'H' had died on 19. 11. 1991. The application for substitution after setting aside 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 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 arise and deletion of his name from the array of (' I· respondents in the second appeal. That being the position, r even if the judgment was delivered after the death of 'H' -r I ,_ whose entire body of heirs and legal representatives were ' I, not brought on record, even then the only requirement under the law was to take note of the death of 'H' and delete 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 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 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 Imortgagee. 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 and circumstances of the present case, even in the Iabsence of the two married daughters, the suit is maintainable in law, for two reasons. Firstly, it was the 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 party at the time of filing of the suit. So far as the other GOPIBAI AND ORS. ~ married daughter 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 '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. 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] ' 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 (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. 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 -- 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 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 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 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 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 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 It has been looked after in a bona fide manner. If there be 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... 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 the deceased Nandram and therefore, the suit could not be ; ,.

dismissed on that ground. It is true that the objection as to 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 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. 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 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 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 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 earlier, which were not challenged before us by the learned counsel for the respondents, it is clear t~at i) one ofthe 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) I l . 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 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 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' 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 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 '