Back
1980 Supreme(Cal) 156
HIGH COURT OF CALCUTTA
Anil Kumar Sen & B. C. Chakrabarti, JJ.
Amiya Bala Datta
vs.
Suresh Chandra Bhadra & Ors.
FIRST MISCELLANEOUS APPPEAL No. 611 of 1976
Decided On: April 25, 1980
Ashoke Kr. Sengupta, Benoyendra Nath Son for the appellant;
Sakatinath Mukherjee, Ajit Kumar Chakraborty, Bijitendra Nath Mitra for the respondent.
In a suit for partition, if after diligent and bona fide inquiry the heirs and legal representatives are brought on record excluding some whose names did not transpire during enquiry and when the persons thus substituted also do not raise any objection as to any other heir being left out the estate of the deceased should be deemed to have been sufficiently represented by these on record.
Headnote:
PARTITION SUIT - SUBSTITUTION OF HEIRS - EFFECT OF NON-JOINDER OF ALL HEIRS - REPRESENTATION OF ESTATE - VALIDITY OF DECREE - EXECUTION - S. 47, C.P.C. - [O. 22, R. 4 (3), C.P.C.]
Fact of the Case:
In a partition suit, after the passing of a preliminary decree, one of the defendants died. His widow and some of his heirs were brought on record, but not all. The final decree was passed and the decree holder filed an execution case. The widow of the deceased defendant filed an objection under S. 47 of the C.P.C., alleging that all the heirs of the deceased had not been brought on record and that the final decree was therefore void and not executable against them.
Finding of the Court:
The court held that the estate of the deceased defendant had been sufficiently represented by those who were brought on record after his death. There was no fraud or collusion, and the persons substituted did not raise any objection as to any other heir being left out. The court also held that the final decree was valid and executable.
Issues: 1. Whether the estate of the deceased defendant had been sufficiently represented by those who were brought on record after his death. 2. Whether the final decree was void and not executable against the heirs of the deceased defendant who were not brought on record.
Ratio Decidendi: 1. The court applied the principle laid down by the Supreme Court in N. K. Mohammad Soleman v. N. C. Ismail, AIR 1966 SC 792, that where 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 even partially, in the absence of fraud or collusion which taints 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 record. 2. The court distinguished the cases relied on by the appellant, which were suits for partition where the sons of the deceased defendant were on record as coparceners and not as heirs, and held that the principle laid down in N. K. Mohammad Soleman v. N. C. Ismail, AIR 1966 SC 792, was applicable to the facts of the present case.
Final Decision: The appeal was dismissed and the final decree was held to be valid and executable.
B.C. Chakrabarti J: This is an appeal from an order of dismissal of an objection under S. 47 of the Code of Civil Procedure being Misc. Case No. 56 of 1973 of the 3rd Court of learned Subordinate Judge at Alipore.
2. The following facts are not in dispute:
The respondent Suresh Chandra Bhadra as plaintiff institute a suit for partition, Title Suit No. 48 of 1958 of the 3rd Court of learned Subordinate Judge at Alipore, against Phanibhusan Dutta and others. A preliminary decree was passed on contest on 8.12.65 by the aforesaid decree 8 annas share of the plaintiff was declared and separate allotment of 4 annas share of the defendants 3 and 4 were directed. After the passing of the preliminary decree phanibhusan Dutta who was defendant No. 1 in the suit died on 2.4.1967. On the application of the plaintiff dated 29.6.1967 the heirs of Phanibhusan Dutta namely his widow Amiya Bala Dutta (appellant before us) 6 sons and 2 daughters were brought on record. Subsequently a Commissioner for effecting partition was appointed, the parties having failed to effect amicable partition in terms of the preliminary decree. The final decree was passed on 6.5.1969.
3. Thereafter the plaintiff decree holder filed an execution case for separate possession of his share in 1973 which was registered as Title Execution No. 12 of 1973. In the said Execution Case the appellant filed an objection under S. 47 of the Civil Procedure Code alleging that all the heirs of the deceased Judgment debtor Phanibhusan Dutta had not been brought on record. Her case is that the deceased left behind 7 sons and 6 daughters besides the widow. She also alleged that in the substitution petition two of the sons and a daughter have been wrongly named as Bidhubhusan, Sidhu and Bhabani. She further alleged that the allotment made by the partition Commissioner was unfair and iniquitous. The substantial point on which the objection under S. 47 was fought out was that since all the heirs of Phanibhusan had not been brought on record, the final decree was void, illegal and inoperative and not binding on the heirs of Phanibhusan and therefore not executable as against them.
4. The decree holder opposed the application under S. 47 mainly on the plea that all the heirs and legal representatives of the deceased, as far as it could be ascertained upon enquiry, were made parties and no objection was taken at any stage of the proceedings for making the decree final that any heirs or legal representative has been left out or that anybody has b, en wrongly named or described. It is also his case that the estate of the deceased Phanibhusan was substantially represented and that the objector and one of her daughters namely Sm. Nila alias Mamata Dutta participated in the proceedings for making the decree final.
5. At the hearing of the Misc. Case the petitioner Sm. Amiya Bala Dutta examined herself as a witness and affirmed that her husband died leaving behind 7 sons and 6 daughters, all of whom had not been brought on record. She complained that she did not receive any notice regarding the Commission for making the decree final. She denied that Bidhubhusan and Sidhubhusan who have been brought on record are her sons but alleged that their names arc Binoy and Debu. She admitted that one Ramani Dhar was a close neighbour of theirs and that her husband was acquainted with him.
6. On the side of the Opposite Party the decree holder examined himself to say that he substituted the heirs of Phanibhusan after making due enquiries from Ramani Dhar. He also asserted that at one stage of the Commission proceedings the objector Amiyabala and her daughter Mamata were actually present. The other witness is the advocate commissioner who effected the partition being appointed by the Court for the purpose. He says that he visited the locality after serving due notices upon the parties. He also says that the parties present during the sittings put their signatures in token of their participation. It was sug
