Mohammed Sahul Hamid Lebbai vs Zainaba Beevi (died) and Others

Natesan, J.—The question that arises for consideration in this second appeal is whether, on the death of a Muhammadan leaving a money decree against him unsatisfied execution is levied against some only of his heirs and immovable property of the deceased sold the interests of the other heirs in the property would validly pass to the execution purchaser in the Court-auction? The question apparently simple gives considerable difficulty in view of the large body of case law.

One Mohammed Ismail Masthar Rowther filed the suit Original Suit No. 1 of 1108 (M.E.) on the file of the District Munsif''s Court, Shencottah for and on behalf of the Sulaiman Nabhi Mosque, Shencottah against one Rasavu Mohideen Pichai Rowther and obtained a money decree. It is now admitted that this Pitchai Rowther died on 9th May 1952, only subsequent to the decree in the suit. An appeal was preferred against the decree by some only of the heirs of the deceased judgment-debtor leaving out the Plaintiff in the present suit, the daughter of the deceased, but the appeal failed. Mohammad Ismail Masthar Rowther who represented the mosque also died and the present Appellant in the second appeal came on record and conducted the execution proceedings on behalf of the mosque. The deceased judgment-debtor had left him surviving besides the Plaintiff his daughter, his sons Defendants 2 to 4 in the suit out of which the present second appeal arises and his widow the fifth Defendant in the suit, but execution of the decree in Original Suit No. 1 of 1108 was taken only against the widow and the sons. An extent of four acres of the plaint schedule properties that had belonged to the deceased was brought to sale and purchased in Court-auction on 13th February 1950, by the decree-holder himself. When proceedings for delivery were taken the Plaintiff the daughter of the judgment-debtor obstructed as a person not bound by the execution proceedings. Delivery was, however, recorded by the Court on 21st June 1957 and on the dismissal of an application for re-delivery, the suit out of which the second appeal arises was instituted by the Plaintiff. The case of the Plaintiff inter alia is that as she was not a party to the execution proceedings, the sale would not pass her one-eighth share in the property. Defendants 6 to 8 in the suit are heirs of the Plaintiff''s father''s brother and it has now been found that they had no interest in the suit property.

The trial Court found that Defendants 4 and 5 were in actual control and management of the entire estate of the deceased judgment-debtor, that while execution proceedings were going on, the Plaintiff was residing in the same house along with her mother and brothers, that the Plaintiff was never in actual possession of the land and that in the circumstances, the execution proceedings bound the Plaintiff. On appeal, the learned District Judge has considered the matter as a pure question of law and in the view that the execution proceedings to which the Plaintiff was not a party was not binding on her and that her interest in the property did not pass under the Court sale, granted consequential relief�s in respect of the Plaintiff''s one-eighth share in the suit property. There is no discussion by the learned District Judge as to whether factually the estate was managed by Defendants 4 and 5 only to the exclusion of the Plaintiff and whether the Plaintiff stood by and was aware of the execution proceedings. There is only a passing reference to this aspect of the case while setting out the facts and the findings of the trial Court. The Plaintiff therein is referred to as an absentee heir who was a minor.

Prima facie the Court had no jurisdiction to sell the property of persons who were not parties to the proceedings or were not properly represented on the record. But as noticed in Khiarajma v. Daim ILR (1904) Cal. 296 (P.C.) at page 314:

The Indian Courts have properly exercised a wide discretion in allowing the estate of a deceased debtor to be represented by one member of the family, and in refusing to disturb judicial sales on the mere ground that some members of the family, who were minors, were not made parties to the proceedings, if it appears that there was a debt justly due from the deceased, and no prejudice is shown to the absent minors. But these are usually cases where the person named as Defendant is de facto manager of a Hindu family property, or has the assets out of which the decree is to be satisfied under his control.

The learned District Judge has, however, followed the decision of this Court in Manikyala Rao v. Gulam Raza (1944) 1 M.L.J. 134 where it has been observed that there could be no representation amongst Muhammadan co-heirs. That was a case where seven Defendants were sued as the legal representatives of the debtor. Pending execution proceedings one of the Defendants died and his legal representatives were not brought on record and the Court observed that the other six Defendants cannot be said to represent the interest of the seventh Defendant or her heirs and that the execution sale would not be valid so far as they were concerned. It must now be taken as settled law that on the death of a Muhammadan, the inheritance vests in his heirs according to the respective shares and that one heir has no right to deal with the shares of the other heirs and some of them alone cannot represent others In Mallikarjun v. Narhari ILR (1900) Bom. 337 (P.C.) at page 347 it is observed by the Judicial Committee as follows:

There can be no question that omission to serve notice on the legal representatives is a serious irregularity, sufficient by itself to entitle the Plaintiff to vacate the sale. But there may defences to such a proceeding, and justice cannot be done unless those defences are examined by legal methods.

The Judicial Committee noticed that the conduct of the interested parties at the time of sale may be a bar to them when they come to set it aside. In view of the aforesaid observations for a satisfactory disposal of the case, before considering the legal submissions it will be necessary to have specific findings on the following points:

(1) Whether the suit property was in the actual control and management of Defendants 4 and 5 only?

(2) Whether the Plaintiff was a minor at the commencement of the execution proceedings and if she had subsequently become a major, could it be said that she stood by and acquiesced in the execution proceedings that were being taken against the other legal representatives?

(3) Whether the decree-holder acted bona fide in proceeding in execution against some only of the heirs in execution? and

(4) Whether the Plaintiff had been prejudiced by the execution sale?

The matter is therefore, remitted to the lower Appellate Court for findings on the above points. Both parties will be at liberty to adduce such evidence oral and documentary as they may think fit. If the lower Appellate Court considers it more convenient it will be at liberty to require such evidence to be recorded by the trial Court. Time for return of the findings two months from the date on which the records reach the lower appellate Court. Time for objections to the finding ten days thereafter.

And this second appeal coming on for final hearing, after receipt of the finding, the Court delivered the following :

JUDGMENT

The learned District Judge from whom findings were called has now submitted his findings and according to the findings, Defendants 4 and 5, the brother and mother of the Plaintiff were in actual control and management of the suit properties. It is also found that she was a minor at the commencement of the execution petition, but later on becoming major she had acquiesced in the execution proceedings and that there was no mala fides on the part of the decree-holder in proceeding in execution against Defendants 2 to 5 only. Further, the finding is that there was no evidence of any irregularity or illegality in the execution proceedings and that there was no prejudice caused in the execution sale.

Even the order calling for a finding has referred to the decision of the Judicial Committee in Khirajmal v. Daim ILR (1904) Cal. 296 (P.C.) and referred to the case in Manikyala Rao v. Gulam Raza (1944) 1 M.L.J. 134 relied on in the lower Court. Manikyala Rao v. Gulam Raza (1944) 1 M.L.J. 134 can be distinguished on the short ground that the remaining six Defendants therein could not represent the interest of the seventh, Defendant or her heirs, all the seven Defendants having been made parties to the suit in their individual capacity. The decree in the suit therein was obtained against the deceased and the other six Defendants and the liability of each Defendant was limited to the extent of the assets in his or her hands. As noticed in the judgment, it was possible that the execution of such a decree may be barred against some of them and can be executed against others. It was in these circumstances it was held therein that it cannot be said that one of the Defendants could represent the interest of others. In that case, there was nothing beyond their being parties as heirs of the judgment-debtor to draw any inference of representation.

The present case, in my view, must be held to be concluded by the decision of the Judicial Committee in Khiarajmal v. Diam ILR (1904) Cal. 296 (P.C.). The brief facts of the case necessary only in skeletal for our present purpose may be set out members of a Muhammadan family, Nabibaksh, Naurez and others had executed two mortgage deeds of lands. In the execution of the mortgage Nabibaksh represented also his brother Alibaksh. The mortgaged properties were later sold in execution of money decrees against the mortgagors or their representatives. Later a suit for redemption was filed and the proceedings before the Judicial Committee arose out of this redemption suit. The question was whether the right of redemption of Alibaksh and some of the representatives of the original mortgagors were barred by reasons of the execution sales. In one of the money suits, there was reference to arbitration and after the reference Nabibaksh died leaving as his heirs two widows a son aged six years and an infant daughter. The widows and the infant son represented by one of the widows were alone named as legal representatives in the suit. The question arose whether the share of the infant daughter was bound by the Judicial sale in execution of the decree that followed the award and she was, therefore, precluded from redeeming. Their Lordships observed that Nabibaksh''s estate was sufficiently represented for the purpose of the suit although the name of his infant daughter was omitted and that his share of the equity of redemption in the property sold in execution of the decree was, therefore, bound by the sale and irredeemable. In my view, the principle of this ruling directly applies to the instant case. In contrast, we may refer to the share of certain other mortgagors. Nabibaksh had executed the mortgage on behalf of his brother Alibaksh. Alibaksh was living after the death of Nabibaksh, but Alibaksh was not brought on record. Their Lordships observed at page 313:

It must be presumed that Nabibaksh was authorized to sign the mortgages for his brother. At any rate, Alibaksh by suing for redemption admits it. And possibly it might have been held that Nabibaksh''s authority extended to representing him in Waliram''s suit. But by no possibility could it be considered that he was represented by the widows or infant son of his deceased brother. In fact, his interest in the property seems to have been ignored altogether.

It was, therefore, held that the Court had no jurisdiction to sell his share. Coming to the share of the mortgagor Naurez, Amirbaksh, one of the heirs of Naurez, a minor was impleaded in the money suit and the execution proceedings and their Lordships observed that he could in no other sense be considered Naurez''s legal representative. This Amirbaksh was represented in the suit by his uncle Allah Navas who was neither in fact nor in any legal sense his guardian and was not appointed guardian-ad-litem even. Their Lordships held that the estate of Naurez was not represented in law or in fact in either of the suits and the sale of his property was, therefore, without jurisdiction and null and void. In the last two cases, no person was named as heir who had under his control the assets out of which the decree was to be satisfied. The case shows three possible instances, in one there is factual and effective legal representation of the estate though one heir was left out, in another, there was no representation at all and in the third case, there was an heir on record but there was no legal representation of the heir of the estate. In the case before the Judicial Committee the representation or its absence was in the suit itself and continued in execution. In the present case the decree was passed against the deceased and the appeal was filed by Defendants 2 to 5 claiming to be the legal representative. They challenged the decree as legal representatives representing the estate and fighting for the estate, which was in their control.

Mr. M.A. Srinivasan, learned Counsel for the Respondents referred to the decision of the Travancore-Cochin High Court in Pyli v. Varghese AIR 1956 T.C. 147 (F.B.). There, the question in the present form did not at all arise for consideration. Of the three Defendants, who were judgment-debtors, one of them had subsequent to the decree and before the commencement of the execution proceedings transferred his interest in the property in question by a settlement. After his death, the two remaining Defendants, his brothers, were declared to be the sole legal representatives and there was no dispute about it. The question for consideration was whether the person claiming under the settlement was entitled to notice of the execution petition and whether he must be brought on record as legal representative of the estate, despite the fact it was a, pendente lite transfer. This was negatived. I do not see how that case can help the present Respondents.

The decision of the Andhra Pradesh High Court in Sulaiman Sahib v. Ismail Sahib (1959) 1 And. W.R. 220 is a case in point in favour of the Appellants. It is sufficient to set out the head note therein.

Where a Defendant dies pending a suit and a few only out of several legal representatives of the deceased are ordered by Court to be brought on record under Order 22, CPC St the instance of the Plaintiff and a decree is passed, any execution proceedings that may take place in pursuance of the decree are binding upon all his representatives. Where execution proceedings are taken in pursuance of the decree after the death of a judgment-debtor against some only of his heirs, they will be binding upon all the heirs. A sale of the estate of the deceased in either case would bind all the legal representatives, although some of them might not have been placed on record.

The principle of representation which applies to suits instituted against a deceased obligor''s heirs equally applies to execution proceedings against some only of the heirs of the deceased judgment-debtor.

There is no justification for limiting the rule of representation to Hindu heirs.

The case in question related to Muhammadan heirs and at page 228, it is observed, that the case in Khiarajmal v. Daim ILR (1904) Cal. 296 (P.C.) is conclusive on the question.

I may in this connection refer also to the recent decision of the Supreme Court in Daya Ram and Others Vs. Shyam Sundari, where Rajagopala Ayyangar J., delivering the judgment for the Court observed at page 1054:

...where a Plaintiff or an Appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased Defendant or Respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record.

The principle of this rule of law which had been set out in Kadir Mohideen Marakkayar v. Muthukrishna Ayyar ILR (1902) Mad. 230 was approved the Supreme Court quoting the following passage therefrom:

In our opinion a person whom the Plaintiff alleges to be the legal representative of the deceased Defendant and whose name the Court enters on the record in the place of such Defendant sufficiently represents the estate of the deceased for the purposes of the suit and in the absence of any fraud or collusion the decree passed in such suit will bind such estate...If this were not the law, it would, in no few cases, be practically impossible to secure a complete representation of a party dying pending a suit and it would be especially so in the case of a Muhammadan party and there can be no hardship in a provision of law by which a party dying during the pendency of a suit, is fully represented for the purpose of the suit, but only for that purpose, by a person whose name is entered on the record in place of the deceased party under Sections 365, 367 and 368 of the Code of Civil Procedure, though such person may be only one of several legal representatives or may not be the true legal representative.

The hardship that has been visualized with reference to a Muhammadan party will be felt in respect of Hindus also in view of the Hindu Succession Act. As only processual law is in consideration in this connection whatever be the personal law as pointed out by Mahmood J. in Jafri Begam v. Amir Muhammad Khan ILR (1885) All. 822, 842 (F.B.).

Upon the death of a Muhammadan owner, his property...immediately devolves upon his heirs, in specific shares; and if there are any claims against the estate, and they are litigated, the matter passes into the region of procedure, and must be regulated according to law which governs the action of the Court.

This dictum of Mahmood J., has been quoted with approval by the Judicial Committee in Kazim Ali v. Sadiq Ali ILR (1938) Luck. 494 (P.C.).

It follows from the above discussion that the estate of the deceased in the present case has been fully represented bona fide in all the proceedings and that it is not open to the Plaintiff to challenge the judicial sale. The persons who had complete control of the estate and who were in charge of the estate had been impleaded as parties. The Plaintiff even after becoming a major had stood by when the execution sale was taking place and no irregularity and consequential prejudice has been established in the execution proceedings.

In these circumstances, the decree and judgment of the lower appellate Court reversing that of the trial Court cannot stand. They are, therefore, set aside and the decision of the trial Court negativing the Plaintiff''s attacks on the sale and dismissing the suit, restored. The Appellant will be entitled to his costs in the trial Court and in this Court. The parties will bear their respective costs in the lower appellate Court.

No leave.