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Manjappa Moolya Vs. Rama Bhandary and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 47 of 1964
Judge
Reported inAIR1968Kant202; AIR1968Mys202; (1967)2MysLJ192
AppellantManjappa Moolya
RespondentRama Bhandary and ors.
Excerpt:
.....and bona fide believed that defendants 3 to 11 were the sole legal representatives of the deceased guddu hengasu, and there was also the outstanding feature that not even the death of guddu hengasu was brought to the notice of the court which made the final decree in the mortgage suit, it was impossible for the courts below to reach the conclusion that the plaintiff was nevertheless bound by the decree to which he was not a party. (9) although defendants 1 and 2 did not, in their written statement, say so in so many words, the district judge understood their defence as one clearly resting upon the doctrine of representation. (13) what clearly emerges from these two pronouncements is that the doctrine of representation depends upon the representation of the estate in effect and on the..........the decree of the district judge who affirmed the decree of the court of first instance in the suit brought by the plaintiff for a declaration that the final decree made in a mortgage suit on january 31, 1957 did not bind him. that final decree was made in a suit brought by defendants 1 and 2 who were the mortgagees, under a mortgage deed executed in the year 1948 by a certain guddu hengasu who was the yajamanthi of an aliyasanthana family and by defendants 3 to 11 who are her children or grandchildren, and others. on september 20, 1956 there was a preliminary decree which was followed up by a final decree for sale made on january 31, 1957. meanwhile, guddu hengasu had died on october 13, 1956 and a final decree was made as if she was still alive. defendants 1 and 2 executed the.....
Judgment:

(1) This is a plaintiff's appeal from the decree of the District Judge who affirmed the decree of the court of first instance in the suit brought by the plaintiff for a declaration that the final decree made in a mortgage suit on January 31, 1957 did not bind him. That final decree was made in a suit brought by defendants 1 and 2 who were the mortgagees, under a mortgage deed executed in the year 1948 by a certain Guddu Hengasu who was the yajamanthi of an aliyasanthana family and by defendants 3 to 11 who are her children or grandchildren, and others. On September 20, 1956 there was a preliminary decree which was followed up by a final decree for sale made on January 31, 1957. Meanwhile, Guddu Hengasu had died on October 13, 1956 and a final decree was made as if she was still alive. Defendants 1 and 2 executed the decree and brought the mortgaged properties to sale and purchased them on April 8, 1958. It was as a sequel to this that the suit out of which this second appeal arises was brought by the plaintiff for a declaration that, since he was not impleaded as a party to the proceedings in which the final decree was made, although he succeeded Guddu Hengasu as the yajaman, the decree did not bind him.

(2) The suit was resisted by defendants 1 and 2 on more than one ground. It was said that the plaintiff was not the son of Guddu Hengasu and so was not her legal representative who could have been brought on the record as such. It was also contended that the plaintiff was not in possession of the properties when he brought his suit and that the suit for a bare declaration and injunction could not be sustained. On the question whether the plaintiff was in possession of the suit properties on the date of the institution of the suit, neither the court of first instance nor the lower appellate court recorded any finding. But their finding was that the plaintiff was the son of Guddu Hengasu and was her legal representative.

(3) But that finding, according to them did not enable the plaintiff to overcome the decree which had been made with defendants 3 to 11 on the record in the mortgage suit. This conclusion was reached by the application of the familiar doctrine that if there was adequate representation of the estate, though not all the legal representatives of the person who died during the pendency of the suit were brought on record, the decree made in such a suit would bind those who were not brought on the record, if there was no fraud or collusion and the decree was obtained bona fide. So it was that the plaintiff's suit failed in the court of first instance and in the first appellate court, and, he appeals.

(4) Mr. Karanth appearing for the plaintiff maintained the argument that this was not a case in which the doctrine of representation upon which the other side depended has any application, since what was asserted by defendants 1 and 2 was that the plaintiff was not the son of Guddu Hengasu and so was not her legal representative. It was therefore argued that once that contention failed, as it indeed did, and there was no allegation in the written statement produced by defendants 1 and 2 that they honestly and bona fide believed that defendants 3 to 11 were the sole legal representatives of the deceased Guddu Hengasu, and there was also the outstanding feature that not even the death of Guddu Hengasu was brought to the notice of the court which made the final decree in the mortgage suit, it was impossible for the courts below to reach the conclusion that the plaintiff was nevertheless bound by the decree to which he was not a party.

(5) I find from the proceedings which culminated in the final decree which the plaintiff impeaches, that the application for a final decree was made by defendants 1 and 2 on November 14, 1956, only a month after Guddu Hengasu died. The final decree made makes it appear that the name of Guddu Hengasu was retained on the record as if she was still, alive. The District Judge pointed out that at all plaintiff and other circumstances made it appear to every one, as it should have appeared to defendants 1 and 2, that the plaintiff had no manner of concern with the mortgaged properties. In paragraph 19 of his judgment the District Judge pointed that even in respect of the other documents concerning the mortgage transaction, Exhibits B-12 and B-13 there was no association by the plaintiff.

He next pointed out that when there was a mortgage in the year 1932 under Exhibit B-14 in favour of a certain Venkanna Bhatta, the plaintiff did not join in the execution of the mortgage along with others, to whom I have already referred, and not even when there was a redemption of the mortgage under Exhibit B-15 on November, 1936. The District Judge next alluded to the mortgage in favour of defendants 1 and 2 in the year 1948 and to the fact the Guddu Hengasu and defendants 3 to 11 were the persons who created that mortgage and not the plaintiff.

(6) There were three suits which the mortgage transactions favour of defendants 1 and 2 produced, and, to none of those three suits was the plaintiff a party. The District Judge pointed out that two suits were instituted for the recovery of the interest due under the mortgage deeds, while the third was a suit instituted for the recovery of the mortgage debt and for the sale of the mortgaged properties.

(7) The District Judge next observed that even according to the plaintiff, he commenced the management of the family properties only after the death of Guddu Hengasu, and called attention tot he evidence produced on behalf of defendants 1 and 2 which established the residence of defendant 3 in the family house. He believed that evidence and the evidence of D. W. 2 about the residence of defendant 3 along with other members of the family in the family house and along with the plaintiff.

(8) From all these materials the District Judge deduced the inference that the plaintiff could not have been unaware of the pendency of the mortgage suit to which he was not a party, and that, while he acquiesced in the continuance of the proceedings without his being brought on the record, his intervention was only at a stage when possession was sought to be taken after the execution sale. In his opinion there was no deliberate exclusion of the plaintiff from the final decree proceedings by defendants 1 and 2, and, any collusion between defendants 1 and 2, on the one hand and defendants 3 to 11 on the other was in the circumstances plainly impossible.

(9) Although defendants 1 and 2 did not, in their written statement, say so in so many words, the District Judge understood their defence as one clearly resting upon the doctrine of representation. This is what he said in paragraph 18 of his judgment:--

'The simple answer of defendants 1 and 2 to the contention was that they were not aware of the existence of the plaintiff and they bona fide believed that only defendants 3 to 11 were the heirs remaining in the family after the death of Guddu Hengasu and acted on that bona fide belief. Further as it happened all the members of joint family except plaintiff were there already on record. So there was no question of representing the family. They, therefore, submitted that the proceedings were not vitiated by the omission to bring the plaintiff on record even though he could be regarded as the karnavan of the family and further it was their submission that under the circumstances the proceedings were binding upon the family and the plaintiff'

(10) I am not prepared to say that the District Judge made out a special case for the plaintiff as contended by Mr. Karanth, since it is possible to read and understand the written statement of defendants 1 and 2 in the way in which the District Judge did. It is clear from the proceedings that defendants 1 and 2 were under the bona fide impression that the estate was sufficiently represented by the persons who were already on the record, and, even if, as the record discloses, defendants 1 and 2 allowed the proceedings to continue against Guddu Hengasu as if she was still alive although in fact she was dead, there can be no doubt that the final decree proceedings were continued without any fraud or collusion under the bona fide belief that the proceedings could continue in that way, so as to make the representation of the estate completely efficacious and full.

(11) There are two authoritative pronouncements of the Supreme Court in Dayaram v. Shym Sundari, : [1965]1SCR231 and Mohd. Sulaiman v. Mohd. Ismail, : [1966]1SCR937 which make the enunciation that a decree in a suit in which one of the persons dies and in which not all his legal representatives are brought on the record, or in which wrong legal representative is brought on the record, is binding upon the person who is not brought on the record, if the wrong legal representative was brought on the record pursuant to a bona fide enquiry and there was no fraud or collusion and the estate was adequately represented.

(12) In Mohd, Sulaiman's case, : [1966]1SCR937 the Supreme Court made the elucidation that there was no difference in principle in the case where a debtor who is sued for recovery of debt, dies after the institution of the suit and his legal representatives are brought on record and a case where the creditor, after making a diligent and a bona fide enquiry, impleads certain heirs as parties to his suit and impleads certain wrong parties to the suit, in the genuine belief that they were the only persons interested in the estate.

(13) What clearly emerges from these two pronouncements is that the doctrine of representation depends upon the representation of the estate in effect and on the honest belief that it is represented, there being no fraud or collusion. The application of that doctrine is not limited to a case where the suit is instituted against a wrong person, or to a case where a wrong legal representative is brought on record, or where only a few of the legal representatives are impleaded. It has as much application to those cases as to a case where one of the parties to the suit dies and the estate is adequately represented by the others and a decree is made without the legal representative of the deceased having been brought on the record.

(14) In the case before me, the finding of the district Judge on a question of fact is that defendant 3 along with his children was living in the family house and the plaintiff assumed management of the family properties only after Guddu Hengasu's death. The effect of the other finding of fact recorded by the District Judge is that defendants 1 and 2 honestly believed that defendants 3 to 11 were the persons who represented the estate, and that there was no fraud or collusion between defendants 1 and 2 on the one hand and defendants 3 to 11 on the other. If the final decree proceedings continued in that way, and if the plaintiff had no manner of association whatsoever at the earlier stages commencing with the acquisition of the mortgaged properties as long ago as in the year 1923 and ending with the execution of the mortgage decree in favour of defendants 1 and 2 in the year 1948, and if during this long tract of time defendants 1 and 2 bona fide believed, as found by the District Judge, that the plaintiff had no manner of association with the mortgaged properties, and so it was that the final decree proceedings continued without his having been impleaded as a legal representative of Guddu Hengasu, especially when defendants 3 to 11 were the persons who were associated with all the earlier mortgage transactions. I am not prepared to dissent from the opinion of the District Judge that defendants 3 to 11 sufficiently represented the estate, and that the decree was in consequence binding on the plaintiff so as to preclude him from instituting a suit for a declaration tot he contrary.

(15) I therefore dismiss this appeal with costs.

(16) MKS/D.V.C.

(17) Appeal dismissed.


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