http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

CASE NO.: Appeal (civil)  912 of 1999

PETITIONER: Mohd. Hussain (dead) by LRs & Ors

RESPONDENT: Gopibai & Ors

DATE OF JUDGMENT: 19/02/2008

BENCH: Tarun Chatterjee & A.K. Mathur

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.912 OF 1999

TARUN CHATTERJEE, J.

1.      This appeal is directed 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 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  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  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? 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? 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  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 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 filed by the appellants in the second appeal  to bring on record the heirs and legal representatives of the  deceased Mohd. Hussain on                          3rd of March, 1992

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

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 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 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 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 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. 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/-. On or about 17th of July, 1967, a suit was brought by  Hussainabai, Sugrabai and Mohd. Hussain, being heirs 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 suit premises,  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 already 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/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  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  heirs of Nandram, namely the two married daughters  Annapurna and Pyaribai 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  dismissed not only on merits but also on the ground of non- joinder of parties. 5.      The suit of the appellants was decreed in which the trial  court found that the appellants were the legal heirs of Hasan Ali  and had the right to redeem the mortgage and to recover the 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

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  parties in the suit for redemption. It was also the finding of the  first appellate court that out of the two married daughters of  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 and,  therefore, she was also not a necessary party in the suit. It was  further found that the married daughters of Nandram were not  in 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-D.W.1 had  clearly deposed that the partition of the suit premises was  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,  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 daughters of Nandram, 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 daughters 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 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  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 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 whether the two  married daughters of Nandram viz., Annapurna and Pyaribai  were necessary parties to the suit for redemption of mortgage,  that is to say whether in their absence, the suit was maintainable  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-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: - (a)     Girdhar Parashram Kirad Vs. Firm Motilal Champalal,  Owners, Hiralal Champalal and others [AIR 1941 Nagpur 5]  (DB) (b)     Ghanaram and others Vs. Balbhadra Sai and other  [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 Oudh  29]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

(e) Saeed-ud-din Khan Vs. Hiralal [1914 24 IC 25] Accordingly, the High Court had negatived the contention of  the present appellants that the doctrine of substantial  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 the courts below was that since the  objection as to non-joinder was taken at the earliest opportunity  by the respondents and 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 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]. 9.      Keeping the aforesaid 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/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 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  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  and circumstances of the present case, we do not find any  reason to agree that in the absence of the two married  daughters, 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  time of filing of the suit for redemption, one of the mortgagees  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  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  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 of  Nandram were necessary parties, then also, we must hold that  the interest of the two married daughters in the estate of  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 upon a person who was not  impleaded eo nomine in the action. But to that rule  there are certain recognized exceptions. Where by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

the personal law governing the absent heir the heir  impleaded represents his interest in the estate of  the deceased, there is yet another exception 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 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 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 estate of a deceased person  against whom the plaintiff has a claim either at all  or even partially, in the 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 in the estate are not brought on the  record. This principle applies to all parties  irrespective of their religious  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, 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  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  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 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  by this court in the aforesaid decision. The two sons viz.,  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  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 was not  out of fraud or collusion between them. It is also clear from the  record 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

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 SCC 114]. In that case,  this court in paragraph 9 has observed as follows: - "\005..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 has been looked after in a bona  fide manner. If there be any clash of interests  between the person concerned and his assumed  representative or if the latter due to collusion or  for any other reason, mala fide neglects to defend  the case, he cannot be considered to be a  representative\005.."           11.     In view of our discussions made hereinabove and  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 Kanakarathanammal 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 all throughout  denied the claim of the plaintiffs/appellants made in the suit and  contended, inter alia, that the suit premises was 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 that i) one of the daughters viz.,  Annapurna was already dead; ii) the other daughter viz.,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

Pyaribai had no interest in the suit premises as she was not  residing with Late Nandram at the time of his death and iii)  reliance was placed on the deposition of D.W.1-Ochanlal 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 daughters 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. 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.