Decree in favour of a dead person is neither nullity, nor illegal but is only voidable - Decree binds the parties and continues to exist in law unless got rid of as per law.

A. Civil Procedure Code, Order 22 Rules 3, 4 and 11 - Decree in favour of dead person - Decree is not illegal and also not nullity but it is voidable decree - Further held :-

(i) Decree passed against a dead person is generally treated as nullity (though not invariably in all cases), but decree passed in favour of dead person is only an irregularity and not illegality.

(ii) The decree binds the parties and continues to exist in law unless got rid of as per law. AIR 1979 SC 1393, relied.

[Paras 44, 35 and 38]

B. Evidence Act, 1872 Sections 115 and 116 Estoppel and election - Distinction - Doctrine of election, estoppel and waiver share a common foundation in a simple instinct of fairness, and in particular the perception that as between two parties to a transaction of a legal relationship, it is or may be unfair for one party to adopt inconsistent positions in his dealings with the other - Election though the subject of much learning and refinement, is in the end a doctrine based on simple considerations of common sense and equity.

[Paras 42 and 43]

C. Civil Procedure Code, Order 20, Rule 18 - Civil Procedure Code, Order 22 Rules 2-B, 3, 4 and 11 - Powers-of-Attorney Act, 1882 Sections 1A and 2 Suit for partition of property filed by plaintiff through Power of Attorney - Death of plaintiff - Power of Attorney holder entering into compromise with Defendants - Defendants not bringing this fact of notice of court - A compromise decree passed by Court - Decree is not nullity - It is only voidable and could be avoided through known process of law.

[Para 44]

JUDGMENT :

P. Bhavadasan, J.

The fate of this Original Petition should depend upon the answer to the question whether a decree passed in favour of a dead person is void or voidable. If it is to be held as void, then necessarily the petitioner will have to succeed. Otherwise, the order of the court below will have to be upheld. O.S. 307 of 1997 before the Munsiffs Court, Perumbavoor was filed by the predecessor-in-interest of the present decree holders for fixation of boundary between the property of plaintiff and defendant. The petitioner herein was the first defendant in the said suit. It needs to be mentioned here that the plaintiff in O.S. 307 of 1997 was represented by his power of attorney holder. A Commissioner was deputed to measure the property with the help of Surveyor and he measured the property and got a plan prepared. Narayanan, the predecessor in interest of the respondents herein, who instituted O.S. 307 of 1997, died on 31.12.1999. However, the power of attorney holder and the defendants entered into a compromise and Ext. P2 is the compromise petition. The compromise was signed by the power of attorney holder on behalf of the plaintiff. Accepting the compromise, a decree was passed on 31.3.2000 as evidenced by Ext. P3 in terms of the compromise entered into between the parties.

2. Years thereafter, claiming to be co-owners with the first defendant in O.S. 307 of 1997 of the property involved in the compromise decree, the other alleged co-owners instituted O.S. 158 of 2008 for declaration that Ext. P3 compromise decree is a result of fraud, misrepresentation and collusion between the parties in O.S. 307 of 1997. So the decree is not binding on the plaintiff in the suit and on the basis of that decree, there could not be a fixation of boundary. The petitioner before this Court was the first defendant in the suit. He remained ex-parte. The respondents in the Original Petition were defendants 2 to 4 in the suit. Defendants 2 to 4 contested the suit. That suit was dismissed on the ground that the plaintiffs had already partitioned the properties and therefore, they had no subsisting interest along with the first defendant in the property involved in O.S. 307 of 1997.

3. Subsequently, the responden