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2008(2) Supreme 111
Supreme Court of india
Tarun Chatterjee & A.K. Mathur, JJ.
Mohd. Hussain (dead) by LRs & Ors. — Appellants
versus
Gopibai & Ors. — Respondents
Appeal (civil) 912 of 1999
Decided on : 19-02-2008
Suit for redemption – Set aside on ground that suit for redemption could not be held to be maintainable in law in absence of two married daughter’s of one of mortgages – Two sons of Late “N” duly, substantially and in a bona fide manner represented interest in estate, if there be any, of two married daughters – Findings arrived at by appellate court, that one of daughters was already dead and other daughter had no interest in suit premises as she was not residing with Late “N” at the time of his death and reliance was placed on deposition of D.W.1- who deposed that there was a partition of suit premises which fell in his share and therefore, it was concluded that two married daughters were not necessary parties – That being concurrent findings of fact arrived at by courts below, it was not open to High Court at second appellate stage to hold that suit was not maintainable in law as two married daughters of “N” were not made parties to suit for redemption – Impugned Judgment and decree of High Court set aside and that of courts below restored - Appeal allowed.(Paras 9 to 12)
AIR 1941 Nagpur 5,AIR 1938 Nagpur 32, AIR 1919 PC 24, AIR 1915 Oudh 29, 1914 24 IC 25, AIR 1965 SC 271 — Referred to.
AIR 1966 SC 792, [(1991) 3 SCC 114 — Relied upon.
Facts of the Case:-
1.A Suit for redemption was filed herein in the instant case. Present Appeal has been filed against judgment of High Court in Second Appeal whereby concurrent judgments of courts below decreeing suit for redemption of mortgage filed by Appellants against respondents was set aside. Appellant contended that in view of findings that one of respondents in second Appeal had died and no application for substitution of his heirs and legal representative was made even till signing of judgments, second appeal had abated in its entirety.
Findings of the Court : –
The Court held that Evidence on record, showed that “M” had died on 19th of November, 1991. It is true that application for substitution after setting aside abatement was filed by appellants in second appeal to bring on record heirs and legal representatives of deceased “M” on 3rd of March, 1992 after judgment was already signed by judge. Admittedly some of heirs and legal representatives of “M” were already on record in file of second appeal. Such being position, question of abatement of second appeal on death of “M” could not arise at all as some of his heirs and legal representatives were admittedly on record. Only question of noting death of “M” could arise and his name could be deleted from array of respondents in second appeal. That being position, even if judgment was delivered after death of “M” whose entire body of heirs and legal representatives were not brought on record, even then only requirement under law was to take note of death of “M” and delete his name from array of respondents in second appeal and rest of heirs and legal representatives who were not brought on record could be added in cause title of the memorandum of appeal. Hence, held too technical to set aside entire judgment of High Court on ground of not bringing entire body of heirs and legal representatives of “M” because some of his heirs and legal representatives were on record and left out heirs and legal representatives were sufficiently represented by other heirs on record.
Result : Appeal allowed.
judgment
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 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
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