Back
2008 Supreme(MP) 241
2008(2) JLJ 206
(SUPREME COURT)
A.K. Mathur and Tarun Chatterjee, JJ.
Mohd. Hussain and others v. Gopibai and others
Civil Appeal No.912 of 1999: against the judgment and decree of M.P. High Court Bench at Indore, passed in Second Appeal No.27 of 1978;
Decided on 19.2.2008.
S.K. Gambhir for appellants;
Alok Bhachawat and Sushri Sameena Ahmed for respondents.
Headnote:(1) Civil P.C., 1908 -- O.22 Rr.4 and 11, S.100 -- one of the respondents died during second appeal -- no application for substitution of his heirs/ LPs filed in time -- some of his heirs already on record -- appeal does not abate.
Whether the second appeal of 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. Hussain, one of the respondents in the High Court who had died during the pendency of that second appeal? [Para 2
Held: From the record, it appears that Mohd. Hussain had died on 19.11.1991. It is true that the application for substitution after setting aside abatment was filed by the appellants in the second appeal to bring on record the heirs and legal representatives of the deceased Mohd. Hussain on 3.3.1992 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 the respondents in the second appeal. [Para 3
(2) Civil P.C., 1908 -- O.34 R.1 and O.1 Rr.9 and 10(2) -- suit for redemption of mortgaged property -- two married daughters of one deceased mortgagee not impleaded -- his two sons, who were also mortgagees, were impleaded -- suit is maintainable.
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? [Para 2
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 mortgageees 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 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 Nan dram was sufficiently represented by their two brothers viz. Manaklal and Motilal. [Para 12
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. AIR 1941 Nag.5, AIR 1938 Nag. 42, AIR 1919 PC 24, AIR 1915 Oudh 29, (1914)24 IC 25 and AIR 1965 SC 271 referred to. AIR 1966 SC 792 and (1991)3 SCC 114 relied on. [Para 13
¼1½ flfoy izfØ;k lafgrk] 1908 && vk-22 fu-4 ,oa 11 rFkk /kkjk 100 && izR;FkhZx.k esa ls ,d dh f}rh; vihy ds nkSjku e`R;q && mlds okfjl@fof/kd izfrfuf/k izfrLFkkfir fd, tkus ds fy, vkosnu le; ls ugha fd;k x;k && mlds dqN okfjl igys&ls vfHkys[k ij && vihy mi‘kfer ugha gksrhA
D;k ,rfLeu~ izR;FkhZx.k Ø-1 ls 4 dh] tks mPp U;k;ky; esa vihykFkhZ Fks] f}rh; vihy mi‘kfer gks xbZ Fkh D;ksafd og eks- gqlSu ds] tks mPp U;k;ky; esa izR;FkhZx.k esa ls ,d Fkk vkSj ftldh f}rh; vihy ds yacu ds nkSjku e`R;q gks xbZ Fkh] fof/kd okfjl vkSj izfrfuf/k vfHkys[k ij ykus ds fy, vkosnu djus esa foQy jgk\ ¼iSjk 2
vfHkfu/kkZfjr % vfHkys[k ls izdV gksrk gS fd eks- gqlSu dh e`R;q 19-11-1991 dks gqbZ FkhA ;g lR; gS fd e`r eks- gqlSu ds fof/kd okfjl rFkk izfrfuf/k vfHkys[k ij ykus ds fy, vkosnu vihykFkhZx.k }kjk f}rh; vihy esa 3-3-1992 dks fo}ku U;k;k/kh‘k }kjk fu.kZ; ij gLrk{kj dj fn, tkus ds i‘pkr~ Qkby fd;k x;k FkkA ;g Lohd`r fLFkfr gS fd eks- gqlSu ds dqN okfjl rFkk fof/kd izfrfuf/k igys ls gh f}rh; vihy dh Qkby ds vfHkys[k ij FksA ,slh fLFkfr gksus ds dkj.k] gekjh jk; esa] eks- gqlSu dh e`R;q ij f}rh; vihy ds mi‘keu dk iz‘u mn~Hkwr gh ugha gks ldrk Fkk D;ksafd mlds dqN okfjl vkSj fof/kd izfrfuf/k Lohd`r% vfHkys[k ij FksA dsoy eks- gqlSu dh e`R;q dh vo{kk dk iz‘u mB ldrk Fkk vkSj mldk uke f}rh; vihy esa izR;FkhZx.k dh lwph ls gVk;k tk ldrk FkkA ¼iSjk 3
¼2½ flfoy izfØ;k lafgrk] 1908 && vk-34 fu-1 rFkk vk-1 fu-9 ,oa 10¼2½ && ca/kd laifÙk ds mUekspu ds fy, okn && ,d e`r ca/kdnkj dh nks fookfgr iqf=;k¡ la;ksftr ugha && mlds nks iq=] tks Lo;a Hkh ca/kdnkj Fks] la;ksftr && okn pykus ;ksX; gSA
D;k ,d ca/kdnkj dh nks fookfgr iqf=;ksa dh vuqifLFkfr ds dkj.k vfHkfu/kkZfjr fd;k tk ldrk gS fd ca/kd ds mUekspu ds fy, okn fof/k dh n`f"V esa pykus ;ksX; ugha Fkk] vFkkZr~ mUekspu dk okn muds vla;kstu ds dkj.k [kkfjt fd;k tk ldrk Fkk\ ¼iSjk 2
vfHkfu/kkZfjr % ;g lR; gS fd ca/kd ds mUekspu ds fy, okn esa e`r ca/kdnkj ds leLr okfjl vkSj fof/kd vko‘;d i{kdkj gksrs gSa] ijarq izLrqr ekeys ds rF;ksa vkSj ifjfLFkfr;ksa esa] gekjs fu"d"kZ esa blls lger gksus dk dksbZ dkj.k ugha gS fd nksuksa fookfgr iqf=;ksa dh vuqifLFkfr ds dkj.k okn fof/k dh n`f"V esa pykus ;ksX; ugha gks ldrkA blds de&ls&de nks dkj.k gSa %
¼i½ izFke vihy U;k;ky; dk fu"d"kZ Fkk fd mUekspu ds fy, okn Qkby fd, tkus ds le; ,d ca/kdnkj vFkkZr~ uanjke dh e`R;q igys gh gks xbZ FkhA ;g fu"d"kZ Hkh fudkyk x;k Fkk fd fookfgr iqf=;ksa eas ls ,d] vFkkZr~ vUuiw.kkZ dh e`R;q gks xbZ FkhA ;fn ;g fu"d"kZ Lohdkj dj fy;k tk, rc okn Qky fd, tkus ds le; vUuiw.kkZ dks vko‘;d i{kdkj ugha dgk tk ldrkA tgk¡ rd nwljh fookfgr iq=h vFkkZr~ I;kjhckbZ dk laca/k gS] vihy U;k;ky; dk fu"d"kZ bl izHkko dk gS fd okn ifjlj mlds vf/kHkksx esa ugha Fkk] u gh og ca/kdnkj vFkkZr~ uanjke dh e`R;q ds le; mlds lkFk jg jgh FkhA iqu% ;fn ;g fu"d"kZ Hkh Lohdkj dj fy;k tk, rc ge ;g vfHkfu/kkZfjr djus dh fLFkfr esa ugha jgrs fd nksuksa fookfgr iqf=;ksa dh vuqifLFkfr ds dkj.k okn fof/k dh n`f"V esa pykus ;ksX; ugha gS ;g ekuk tk ldrk gSA
¼ii½ ;g /kkj.kk Hkh yh tk, fd uanjke dh nks fookfgr iqf=;k¡ vko‘;d i{kdkj Fkha] rc Hkh gesa vfHkfu/kkZfjr djuk gksxk fd uanjke dh laink esa nksuksa fookfgr iqf=;ksa ds fgr dk izfrf/kRo muds nks Hkkb;ksa vFkkZr~ ekudyky vkSj eksrhyky }kjk i;kZIr :i ls gks tkrk gSA ¼iSjk 12
lkekU;r% U;k;ky; ,sls O;fDr ij fMØh vkc)dj ugha ekurk ftls vuq;kstu esa la;ksftr ugha fd;k x;kA ;g leqfDr djrs le; bl U;k;ky; }kjk dqN viokn pqus x, gSa %
¼i½ tgk¡ vuqifLFkfr okfjl dks ykxw Loh; fof/k ds vuqlkj la;ksftr okfjl ls e`r dh laink esa mlds fgr dk izfrfuf/kRo gkrk gS ogk¡ fMØh laink esa fgrc) lHkh O;Dr ij vkc)dj gksxhA
¼ii½ ;fn dksbZ U;k; _.k ‘kks/; gS rFkk vuqifLFkr okfjl dks dksbZ izfrdwy izHkko ugha n‘kkZ;k x;k gks rc ,sls vuq;kstu esa tgk¡ oknh us ln~Hkkfod iwNrkN ds i‘pkr~ mlds Kkr leLr okfjl la;ksftr fd, gSa] nh xbZ fMØh lkekU;r%] laink esa fgrc) leLr O;fDr;ksa ij vkc)dj vfHkfu/kkZfjr dh tk,xhA
¼iii½ U;k;ky; }kjk] ;fn dgk tk, rc] ;g Hkh vUos"k.k fd;k tk,xk fd D;k fMØh diV] nqjfHklaf/k ;k U;k;ky; dks /kks[kk nsus ds vk‘kf;r fdlh vU; lk/ku ls vfHkizkIr dh xbZ gSA vr%] diV] nqjfHklaf/k vFkok vU; blh izdkj ds vk/kkjksa ds vHkko esa ftuls fMØh dyafdr gksrh gS] la;ksftr okfjlksa ds fo:) ikfjr fMØh vU; okfjlksa dks Hkh vkc) djrh gS Hkys&gh vU; fgrc) O;fDr vfHkys[k ij ugha yk, x, gksaA , vkb vkj 1941 ukx-5] , vkb vkj 1938 ukx-42] , vkb vkj 1919 ih lh 24] , vkb vkj 1915 vo/k 29] ¼1914½24 vkb lh 25 rFkk , vkb vkj 1965 ,l lh 271 fufnZ"VA , vkb vkj 1966 ,l lh 792 rFkk ¼1991½3 ,l lh lh 114 voyafcrA ¼iSjk 13
Chatterjee, J. -- 1. This appeal is directed against the judgment dated 28.2.1992, which was delivered on 20.3.1992 by a learned Judge of the High Court of Madhya Pradesh at Indore in Second Appeal No.27 of 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 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. Hussain, 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 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 19.11.1991. It is true that the application for substitution after setting aside abatment was filed by the appellants in the second appeal to bring on record the heirs and legal representatives of the deceased Mohd. Hussain on 3.3.1992 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 the 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 the 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 t
