Back
1962 Supreme(MP) 148
High Court Of Madhya Pradesh
V. R. Newaskar and P. K. Tare, JJ.
AHMAD ABDULLA - Appellant
Versus
AYESHA, ALLABUX - Respondents
Letters Patent Appeal 4 Of 1961
Decided On : 09/24/1962
D.C.Bharucha, S.L.Sanghi
Headnote:Civil P. C., 1908-O.22, Rr. 4 and 11, O.20 R. 18-partition suit between Muhommdan Co-sharess-property in dispute in the hand of alieness-preliminary decree passed in appeal in ignorance of death of one of co-sharers (who was proforma respondent)-decree not nullity-validity can not be assailed collaterally in proceedings, for final decree-second Appeal No. 231 of 1958 D/25-4-1961 (M. P.) Reversed.
It is, no doubt, true that, no order of a Court is needed to bring about abatement of a suit or appeal when the period provided by law for bringing on record the legal representatives of a party has elapsed and abatement is automatic. But when a decree is passed and it is contended at the post decree stage that decree in not rightly passed because of a [actual circumstance then that can not be permitted collaterally. An appropriate proceeding designed for setting aside the decree erroneously passed is necessary.
Where in a suit for partition between Muhommadan Cosharers, in respect of the property in the hands of the alienees, a preliminary decree is passed in appeal in the High Court preferred by the plaintiff in ignorance of the death of one of the co-sharers who was a proforma respondent, the validity of the preliminary decree cannot be assailed collaterally in the proceeding for a final decree without seeking to set it aside either by means of an appeal or review. AIR 1959 Bom 384 and AIR 1954 Cal. 205 and AIR 1940 PC 215, relied on. [Para 11
The contention as to automatic abatement of the whole suit involves certain factual assumption. One is that the co-sharer respondent died before the preliminary decree and during the pendency of the appeal in the High Court Second is that the suit could not proceed in the absence of the legal representatives of deceased co-sharer. Those are questions of the fact as to the date or death and the second as to the nature of the action, and when a preliminary decree is passed without objection as to these having been raised, they are impliedly concluded by that decree. It may be that such a decree could have been assailed by means of an appeal or a review petition but it can not be said to be a decree passed without jurisdiction. [Para 11
Assuming that the Court can consider the property or the contention as to the void character of the decree owing to the fact of the co-respondent's death before the preliminary decree, that decree could not be said to be without jurisdiction and a nullity. The plaintiff had not claimed against the deceased co-respondent, and on the appeal preferred by them, he stood to gain and not to lose anything. The legal representatives of the deceased respondent under the circumstances could not be held entitled to resist the grant of relief to the plaintiffs appellants and there was no impediment in the way of the appellants to obtain their relief as against the respondents who had the entire property with them. It cannot in the circumstances be said that the constitution and continuance of the appeal was illegal on the ground that the proceedings had come to an end by reason of the abatement of the appeal : AIR 1940 PC 215 relied on [Para 14
( 1 ) THIS is an appeal under Clause 10 of the Letters Patent of this High Court and is directed against the decision of Sen J. , who considered the effect of omission to bring on record the legal representatives of one of the plaintiffs in a suit for partition at the stage of appeal where the parties were Mohammedans. The question arose after the passing of the preliminary decree by the High court in second appeal on an application submitted on behalf of the defendants dated 3012-1955 contending that the preliminary decree was null and void due to the aforesaid emission. The trial Court considered the omission to be not fatal to the decree so as to make it null and void. It consequently passed a final decree for partition. On appeal by the defendants the appellate Court upheld the defendant's contention and set aside the final decree further holding that the preliminary decree was a nullity. Sen J. , in second appeal against that decision upheld the decision and dismissed the appeal but granted leave. Present appeal is consequently filed.
( 2 ) MATERIAL facts are as follows: one Pirbux owned a house in Pinjarwadi Jaora. He left behind two sons noor Mohammad and Aliabux and a daughter Sakina. These three children of Pirbux died in succession. First to die was Allabux leaving behind him his widow Ayesha and no issue. Subsequent to him died noor Mohammad without leaving any widow or child. Sakina died last leaving behind her two sons Kasam and Ahmad and a daughter Nasiban. Thus on the death of all the three children of Pirbux the only persons left to claim the property in dispute were Ayesha on the one hand, Kasam, ahmad and Nasiban on the other. Ayesha made a gift of the entire house in favour of one Abdul Majid who in his turn mortgaged the same with khudabux and Wali Mohammad. Thereupon Kasam, Ahmad and Nasiban filed the present suit for partition im-pleading Ayesha as defendant No. 1 and the transferees Abdul Majid Khudabux and Walimohammad as defendants No. 2, 3 and 4. The suit was resisted by the defendants. At the hearing Kasam changed front and made a statement on 9-12-1950 supporting the defendants that the 11 Chasma house in Pinjarwadi belonged exclusively to Ayesha and that he did not want to claim any share in that house. Ahmad and Nasiban preferred appeal against this decision. Kasam did not join in this appeal. He was consequently made a co-respondent. This appeal was also dismissed. A Second appeal was thereafter taken to the Madhya Bharat High Court. Some time during the pendency of this appeal Kasam died. However neither th'e appellants nor the rest of the respondents brought this fact to the notice of the High court. The second appeal was consequently heard in the absence of legal representatives of Kasam and without their being brought on record. It was allowed and a preliminary decree was passed on 27-8-1955. After this when the case went back to the trial Court in connection with the proceedings for the final decree an application was submitted on behalt of the defendants on 30-12-1955 contending that the suit had wholly abated due to death of Kasam during the pendency of the appeal and without his legal representatives being brought on record and the preliminary decree passed against them was a nullity. Ignoring this application the trial Court (Mr. Durvey) passed final decree. The deten-dants again appealed against that decree and the appellate Court remanded the case for consideration of the application dated 30-12-1955. The trial Court held that the preliminary decree was not a nullity since there could be no total abatement for failure to implead legal representatives of a pro forma respondent. Mr. Chandnani who was then trying the case accordingly, again passed a final decree in the same terms as had been passed by Mr. Durvey. me defendants again appealed. The appellate Court, however took a contrary view and held that the suit had wholly sbated and the preliminary decree was a nullity. Th
