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Chekuri Venkararaju Vs. Kaza NazeeruddIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 652 of 1979
Judge
Reported inAIR1983AP431
ActsCode of Civil Procedure (CPC),1908- Sections 52
AppellantChekuri Venkararaju
RespondentKaza NazeeruddIn and ors.
Appellant AdvocateK. Srikrishna, Adv.
Respondent AdvocateP.L. N. Sarma, Adv.
Excerpt:
civil - fraud - section 52 of code of civil procedure, 1908 - whether execution of sale is vitiated by fraud or collusion as alleged by plaintiffs - high court observed that person whom plaintiff alleges to be legal representative of deceased defendant and whose name court enters on record in place of such defendant sufficiently represents estate of deceased for purpose of suit and in absence of any fraud or collusion decree passed in such suit will bind such estate - no doubt that legal representatives of judgment-debtor and decree-holder did purport to represent entire estate of judgment-debtor - shares of other legal representatives from coming on record - under muslim law it is well recognized that estate of deceased is bound to discharge dower debt along with other expenses of.....madhava reddy, j.1. the 8th defendant in o.s. 25 of 1970 on the file of the court of the subordinate judge at machilipatnam has preferred this appeal against the judgment and decree declaring the court auction sale of the plaint schedule property held on 26-8-1968 in ep no. 94 of 1961 on the file of the subordinate judge, machilipatnam, in pursuance of the decree of the madras high court c.s. no. 175 of 1946 as void and not binding on the shares of the plaintiffs- respondents in the pliant scheduled property and that they are entitled to a partition and for allotment of their separate shares by metes and bounds. plaintiffs 1 to 4 were declared entitled to ac. 1.21 cents each. and plaintiffs 5 and 6 and the first defendant are entitled to ac 0.59 cents each out of the plaint schedule.....
Judgment:

Madhava Reddy, J.

1. The 8th defendant in O.s. 25 of 1970 on the file of the Court of the subordinate Judge at Machilipatnam has preferred this appeal against the judgment and decree declaring the Court auction sale of the plaint schedule property held on 26-8-1968 in EP No. 94 of 1961 on the file of the subordinate Judge, Machilipatnam, in pursuance of the decree of the Madras High Court C.S. No. 175 of 1946 as void and not binding on the shares of the plaintiffs- respondents in the pliant scheduled property and that they are entitled to a partition and for allotment of their separate shares by metes and bounds. Plaintiffs 1 to 4 were declared entitled to Ac. 1.21 cents each. And plaintiffs 5 and 6 and the first defendant are entitled to Ac 0.59 cents each out of the plaint schedule property towards their shares plaintiffs were also declared entitled to profits towards their shares of the property from the date of the suit till delivery of possession of the propertues and the profits were directed to be ascertained on a separate application.

2. Plaintiffs 1 to 6 are the children of one Ghouse Mohiddin through his second wife Nurunnisa Begum plaintiffs 1 to 4 being his sons and plaintiffs 5 and 6 and the first defendant being his daughters. The second defendant Fatimunnisa begum. Is his first wife and defendants 3 and 4 are the daughters of Ghouse Mohiddin through her Defendants 5and 6 are his brothers and defendant No. 7 is the sister of ghouse mohiddin. The second defendant i.e, the first wife of Ghose Mohiddin filed the suit on the original side of the Madras High Court in C.s. No 175 of 1946 claiming her dower. The suit was decreed on 19-3-1948 against Ghouse Mohiddin ghouse mohiddin died on 30-10-1950 she filed an execution petition against her husband-judgment debtor and it was during the pendency of the execution proceedings that he died. She filed an application No. 4178 of 1953 to bring his legal representatives on record in the said execution proceedings Defendants 3 to 7 i.e. defendants 3 and 4 who are the daughters of the Judgment debtor as well as his brothers and sisters. I.e. defendants 5 to 7 were also brought on record as his legal representatives by an order D/- 6-1-1955. This decree was transferred for execution tot he sub-court at machilipatnam and the execution petition was renumbered as E.P. 94 of 1961. In execution of that dower decree, the plaint schedule property was attached on 23-8-1961 and was brought to sale on 28-8-1961. The 8th defendant became the auction purchaser of Ac 8.00 of land in Gudar village Machilipatnam Taluk Krishna district for Rs. 40,000/- the sale was confirmed and possession was delivered to the auction purchaser on 5-2-1969. The plaintiffs, who claimed to be the children of the Judgment debtor Ghouse Mohiddin through his second wife recently came to know that the second defendant purporting to have obtained the dower decree against ghouse Mohidin in C.S. 175 of 1946 with full knowledge deliberately. Fraudulently and colusively' impleaded defendants 3 to 7 as if they were the only legal representatives of ghouse Mohinddin as per order dated 6-1-1955 in Application No. 4178 of 1953 on the file of the Madras High Court and sought for the first time to execute the decree by attachment of the plaint schedule property in the year 1961 after transmission of the said decree to the file of th sub-court, Machilipatnam. It is averred that the defendants 2 to 7 herein had opposed the application to implead the plaintiffs, 1st defendant and their mother as legal representatives in O.S. No. 95 of 1949 on the file of the sub-court. Machilipatnam and contested the same and were thus fully aware of the plaintiffs claim but yet they failed to brinbg them on record in these execution proceedings the case of the plaintiffs is that the entire execution proceedings in E.P. No. 94 of 1961 on the file of the subcourt. Machilipatnam in C.s. No. 175 of 1946 on the file of the madras High Court after the death of ghouse Mohidin are all vitiated by farud and collusion and that the said sale is not binding on the shares of the plaintiffs 1st defendant and their mother Nurunnisa begum, in the plaint schedule property. It is their contention that the sale does not transfer their share or interest in the property to the 8th defendant -auction purchaser and that he is entitled to the right title and interest of the defendants 2 to 4 only. It is the further case of the plaintiffs that on the death of Ghouse Mohiddin the second defendant and the mother of the plaintiffs Nurunnisa Begum together are entitled to 1/8th share while plaintiffs, D-1, D-3 and D-4 are entitled to 7/8th share and that on the death of plaintiff's mother her 1/6th share devolved ont eh plaintiffs and D-1. Thus each of the plaintiffs and D-1. Thus each of the plaintiffs 1 to 4 is entitled to 2/15th share and plaintiffs 5, 6 and defendants 1, 3 and 4 each entitled to 1/13th share out of 7/8th share, while D-2 is entitled to 1/15th share out of Ac. 8,00 In addition, each of the plaintiffs 1 to 4 is entitled to 2/11th share while each of the plaintiffs 5, 6 and defendant No. 1 is entitled to 1/11th share out of Ac. 8.00

3. Plaintiffs 1 to 6 are the respondents 1to 6 defendants 1to 5 are the respondents 7 to 11. Defendant No. 6 is the respondent No. 12 and defendant No. 7 is the respondent No. 13 Defendants 9 to 21 are the respondents 14 to 26 and defendant No. 22 is the respondent No. 27 the husband of the 9th defendant and the father of the defendants 10 to 21 Md. Hamaluddin, since deceased on 9-2-1967 and Md. Jalaluddin are the sons and Khaderunnisa, the daughter of Md. Usman, through his second wife.

4. The 8th defendant denied that the mother of the plaintiffs was the legally wedded second wife of late ghouse Mohiddin the admitted owner ofthe property that the plaintiffs and the first defendants are her legitimate children by the said Mohiddin and that they are heirs-at-law along with the defendants 2 to 4 to the estate of the deceased Judgment-debtor the 8th defendant also pleaded that the defendatns 5 to 7 are not the heirs-at-law of the said Mohiddin and that the proceedings in I.A. 560 of 1961 on the file of the sub-court at machilipatnam do not estop the defendants 2 to 7 from contending that the plaintiffs and the 1st defendant are not ht children of late Mohiddin through his second wife, Nurunnisa Begum He denied that he was a friend of Defendants 2 to 7 or that he had any knowledge of the plaintiffs' claim to a share in the properties of the judgment-debtor he claims to be a bona fide purchaser for value at a public auction held in pursuance of a Court decree which was binding on the estate of Ghouse Mohiddin and consequently the plaintiffs are not entitled to the declaration as prayed for. There was no fruad or collusion in the execution proceedings he pleaded that he was not only a bona fide purchaser but that the estate of the deceased Judgment-debtor was properly represented by the defendants 2 to 7. Hence the sale isbinding on the entire estate including the shares of the plaintiffs if any.

5. Defendants 6 and 7 by a separate written statement supported the material averments made by the 8th defendant and prayed for the dismissal of the suit. They also asserted that the defendants 2 to 7 are the heirs-at-law of the entire estate of the late Ghouse mohiddin they pleaded that they are not estopped in equity or in law from contending that the plaintiffs and t he 1st defendant are not the dhildren and in any case the legitimate children of the late Ghouse Mohiddin.

6. The teeth defendant who filed a separate written statemtn of his own while admitting that the property originally belonged to late Ghouse Mohiddin stated that the plaint schedule property along with some other properties were under an usufructuary mortgage to one Dr. Mahammadalli saheb on 30-12-1964 for a sum of Rs. 3,000/- as per the terms of the said usufructuary mortgagethe mortgagee was in possession of the scheduled property from faslis 1360 to 1369 infull discharge of the mortgage amount and was to redeliver the posession of the property to the mortgagor i.e, ghouse Mohiddin. The said mortgage was to come into effect after the expiry of another earlier usufructuary mortgage which late ghouse Mohiddin and his brothers had executed in favour of Talapula Rajayya in 1941 ghouse Mohiddin, the mortgagor who was the step borther of the Jamaluddin, the father of the tenth defendant requested his brother jamaluddin to induce the usufructuary mortgagee, Dr Mohammadali, to give up his rights therein for due consideration. Jamaluddin succeeded in that effort by paying the usufructuary mortgage on 27-2-1949 and ever since jamaluddin was in exclusive possession of the plaint schedule property, while so another brother of late Jamaluddin filed a pauper suit O.P. 22 of 1949 on the file of the sub-court machilipatnam which was subsequently numbered as O.S. No. 95 of 1949 for a declaration that the plaint schedule property and other properties were wakl properties and prayed for recovery of possession of the same as muthavalli thereof. Late jamaluddin as 1st defendant therein contested the suit alleging that the plaint schedule property and other properties in that suit were the personal properties belonging to himself and his brother Ghouse Mohiddin having contended that the plaint schedule property was wakf property never claimed to have enjoyed the plaint schedule property nor any interest therein and he never pleaded that the mortgage created by him on 30-12-1944 in favour of Dr. Mohammadalli was discharged from the income of theproperties. It is contended that jamaluddin had perfected his title by adverse posession. Consequently the plaintiffs, even if they were the heirs-at-law of Ghouse Mohiddin are not entitled to any share in the plaint schedule properties In execution of th decree in O.S. No. 175 of 1946 jamaluddin filed a claim petition E.A. No. 20 of 1962 which was contested by the second defendant. The District Court, krishna dismissed the claim petition on 27-11-1962. Jamaluddin thereupon filed O. S. 68 of 1963 in the sub-court machilipatnam under O. 21 R. 63 C.P.C. for a declaration that the attachment of the plaint schedule property effected on 23-8-1961 was liable to be set aside the said suit was transferred and renumbered as O.s. 19 of 1967 on the file of the District Court, Krishna it is during the pendency of the suit that t he plaint schedule property was brought to sale and was purchased by 8th defendant-appellant, he therefore contends that the sale in favour of the 8th defendant is not valid and binding on him and thus he disputes the rights of the plaintiffs as well as the 8th defendant to the plaint schedule property and prays for the dismissal of the suit, the District Judge, krishna decreed the suit O.s. 19 of 1967 holding that the late Ghouse Mohiddin ceased to be the owner of the suit property from 1949 by his voluntary Act of abandonment of his interest in the suit property.

7. The first plaintiff examined himself as P.W. 1 and another one as p.W. 2 while the defendatn rested his case on his deposition the case of the parties rests mainly on the record of earlier proceedings in execution Exs. A 1 to A 26 marked on behalf of the plaintiffs and Exs. B-1 to b-12 marked on behalf of the defendants on examining the commissioner, Exs. C.1 to C 4 are marked the learned subordinate Judge framed the appropriate issues and on an appreciation of the evidence on record came to the conclusion that Nurunnisa Begum the mother of the plaintiffs and the 1st defendant was the second wife of Ghouse Mohiddin Accordingly he held the issues 1 and 2 in favour of the plaintiffs he also held that the execution is vitiated by fraud and collusion that the estate of the deceased was not represented sufficiently by the defendants 3 to 7 in execution proceedings and that the sale in execution was not binding on the plaintiffs to the extent of their shares. Accordingly, he decided the issued 3, 6 and 7 in favour of the plaintiffs. He further held that defendants were unable to show that the plaintiffs were estopped from questioning the validity of the execution proceedings In that view of the matter he held that the plaintiffs were entitled to the relief of declaration prayed for and also for a partitation of their share in the plaint schedule property.

8. In this appeal Mr. K. Srikrishna, the learned counsel appearing for the appellants, does not seriously dispute the correctness of the findings on issues 1 and 2 which relate to the legitimacy of the plaintiffs. That question turns upon the finding as to whether their mother was (the ) legally wedded second wife of late Ghouse Mohiddin Having gone through the evidence of P.Ws. 1 and 2 which is not controverted by the evidence of the 8th defendant who is the auction purchaser and who is not fully aware of the relationship we do not think that the finding calls for interference. Even in the earlier L.R. proceedings taken on the death of Ghouse Mohiddin judgment debtor after contest between the defendants 1 to 6 and the plaintiffs the plaintiffs were recognised as the legal representatives of late Ghouse Mohiddin Ex. A- 13 the order in I.A. 560/51 in O.s. 95/49 Ex. All written statement of the 1st defendant in O.S. 95/49 and the written statement of Nurunnisa begum and her minor children Ex. A 14 fully support the claim of the plaintiffs that they are the legitimate children of Nurunnisa begum the second wife of late Ghouse Mohiddin Ex. A- 20 group photo P.w. 1 also probabilises this fact. We have therefore no hesitation in accepting the finding of the learned subordinate judge that they are the legitimate children of Ghouse Mohiddin and that they are entitled to have a share in the Matruka property of late Ghouse Mohiddi but at the same time the decree having been passsed against Ghouse Mohiddin during his lifetime that decree is binding on his estate on the death of Ghouse Mohiddin theestate vests in his heirs at-law the 1st wife and her children. Having regard to these facts the claim of the plaintiffs has to be adjudged. Before we go into the facts of the case a detailed reference to the earlier proceedings must be made for not much turns upon the oral evidence it is necessary to consider the position of the dower debt and how far it is binding on the estate of late Ghouse Mohiddin. There can be no doubt that for the recovery of dower debt the decree holder has the right to bring the matruka property to sale for the satisfication of her dower decree even if the estate is in the (hands of the ) legal representatives of her late husband Ghouse mohiddin.

9. The Supreme Court in Mohd Sulaiman v.Mohd Ismail : [1966]1SCR937 upon a consideration of the earlier decisions declared the position of law with regard to the binding nature of the decree and sale is execution of the decree thus:

'Ordinarily the Court does not regard a decree binding upon a person who was not impleaded eo nomine in the action. But to the rule there are certain recognised exceptions where by the personal law governing the absent heir the heir impleaded represents his interest in the estate of the deceased there is yet another exception which is evolved in the large interest of administration of Justice. 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. The Court will undoubtedly investigate. If invited whether the decree was obtained by fraud, collusion or other means intended to overreach the Court. The Court will also enquire whether there was a real contest in the suit and may for that purpose ascertain whether there was any special defence which the absent defendant could put forward byt which wa not put forward. Where however on account of a bona fide error. The plaintiff seeking relief instituties his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially in the absence of fraud collusion or other ground which taints the decree a decree passed against the persons impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on record. This principle applies to all parties irrespective of their religious persuasion'.

10. The Court also took note of the fact that the property was in possession of the persons who were impleaded as legal representatives in the said proceedings and not the plaintiffs now claiming a share and questioning the sale and the further fact whether the LRs, who were not impleaded had any special plea of their own in opposition to the claim of the other legal heirs borught on record as legal representatives of the deceased and held that in the absence of those factors, the estate must been deemed to have been fully represented so as to bind the legal representatives who were not impleaded as well.

11. It may also be pertinent to note that the definition of legal Representative itsel as contained in S. 2(11) C.P.C. embraces a person who in law represents the estate of the deceased persons In that context the Supreme Court in Andhra Bank v. Srinivasan : [1962]3SCR391 dealing with a case where one of the defendants died and his legal representatives happened to be non resident foreigners and the estate was in possession of a legatee, observed (at p. 239):

'The whole object of widening the scope of the expression legal representative' which the present definition is intended to achieve would be frustrated if it is held that legatees of different portions of the estate of a deceased do not fall within its purview Logically it is difficult to understand how such a contention is consistent with the admitted position that persons who intermeddle with a part of the estate are legal representatives. Besides if such a contruction is accepted it would be so easy for the estat of a deceased to escape its legitimate liability to pay the debts of adeceased debtor only if the debtor takes the precaution of making several legacies to different persons by his will. Besides as a matter of construction if different intermeddlers can represent the estate different legatees can likewise represent it. In regard to the intermeddlers they are said to represent the estate even though they are in possession of parcels of the estate of the deceased and so there should be no difficulty in holding that the clause a person who in law represents the estate of a deceased person must include different legatees under the will. There is no justification for holding that the Estate in the context must mean the whole of the estate. Therefore we are satisfied that the plain construction of S. 2(11) is against Mr. Sastri's argument apart from the fact that considerations of logic and commonsense are equally against it'.

12. If these principles are kept in view then the matter in issue resolves itself upon the determination of two questions of fact-whether the defendants 2 to 7 who were admittedly made parties to the execution proceedings represented the entire estate of Ghouse mohiddin or not. When these properties were brought to sale and 8th defendant purchased the same at a Court auction; and whether such a sale is bindign on plintiffs 1 to 6 even if they are entitled to a share therein when no fruad or collusion between the auction purchaser and the decree holder is established.

13. Mr. P.L.N. Sarma the learned counsel for the respondents vehemently contends that it is immaterial for the purpose of his claim whether auction purchaser is a bona fide purchaser for value at a public auction or not and whether he is guilty or not of fraud or collusion with the legal representatives of the Judgment-debtor or the decree-holder according to him the Court sale would be vitiated if the decree-holder fraudulently or in collusion with the legal representatives of the deceased Judgment-debtor brings the share of the plaintiffs also to sale the estate of a deceased Muslim vests in legal representatives in specific shares and the other heirs cannot represent him the auction purchaser acquires right title and interest to the shares or such of the legal representatives who were brought on record. The principle of caveat emptor applies to the Court auction purchasers. Neither the decree-holder nor the legal representatives of the deceased could represent the share of the plaintiffs in the estate of the deceased the right title and interest to that extent do not pass to the auction purchaser.

14. The plaintiffs pleaded that the decree-holder and the legal heir's and the children of the judgment-debtor by his first wife. Who were brought on record as legal representatives of the judgment-debtor colluded and played fruad upon the Court by suppressing the fact that the plaintiffs and the first defendant and the other children of the Judgment and the other children of the Judgment-debtor through his second wife were also the legal representatives and entitled to be brought on record and by bringing even the interest of the seocnd wife and ehr children in the Matruka to sale. In paragraph 9 of the Plaint they stated that in c.s. No. 175/46 on the file of the Madras High Court the second defendant with full knowledge deliberately, fraudulently and collusively impleaded defendats 3 to 7 as if they were the only legal representatives of Md. Ghouse Mohiddin and sought execution of that decree by attachment of the plaint schedule property in the year 1961 after transmission of the said decree to the file of this Court 9subordinate judge's Court, machilipatnam) they also pleaded that defendants 2 to 7 were party respondents in O.S. No. 95/49 on the file of the subordinate judge's Court, machilipatnam and contested the application filed by the plaintiffs and the first defendant to be impleaded as parties therein and in spite of that application being ordered, they failed to bring the plaintiffs on record as the legal representatives before the executing Court they further pleaded that defendants 5 to 7 were not the heirs or legal representatives of the Judgment-debtor and yet they were brought on record in execution of a small cause decree in S. C. No. 100/47 on the file of the subordinate Judge's Court Machilipatnam. When the decree-holder proceeded to attach and bring to sale the plaint schedule property, the first plaintiff filed an application to implead him as a legal representative and one md. Jamaluddin filed a claim petition E.A. No. 638/61. While that claim petition was allowed the petition to implead filed by the first plaintiff was dismissed as unnecessary. It is also alleged that the eighth defendant is a friend and ally of defendants 2 to 7 and with full knowledge of the claim of the plaintiff and the first defendant and thier mother. He purchased the plaint schedule property at Court auction and obtained delivery of the same through Court.

15. It is significant to note that even as per the plaint allegations there ws no fraud or collusion between the auction purchaser and the decree-holder or defendants 2 to 7 who are admittedly the legal representatives of the Judgment-debtor Excepting the plea that the eight defendant purchased the suit property with full knowledge of the fact that the plaintiffs and the firrst defendant are the other legal representatives of the deceased Judgment-debtor and have a share in the Matruka properties of the judgment-debtor there is no allegation that the eighth defendant-auction purchaser is a party to the fraud the eighth defendant of course has denied that he had any knowledge of the claim of the plaintiffs or the first defendant and also that he was a friend or ally of defendants 2 to 7 he also stated that he was not aware of the defective title of the plaintiffs and asserted that he was a bona fide purchaser of the property at Court auction and had paid valudable consideration which was appropriated by the decree-holder and the legal representatives of the judgment-debtor. If at all they had any claim they can proceed against the decree-holder or the legal representatives of the judgment -debtor and that the sale is not vitiated. He also denied knowledge of the other proceedings in which the plaintiffs and the first defendant were impleaded as legal representatives. Issue No. 3 framed in regard to this plea is not very happily worded. It reads as under:-

'Whether the execution sale in question is vitiated by fraud or collusion as alleged by the plaintiffs'?

The learned subordinate Judge has found this issue in favour of the plaintiffs and that finding forms the basis of the decree he awarded in their favour.

16. It may be stated at the outset that the first wife of the judgment -debtor had obtained a dower decree in O.s. No. 175/46 on the file of the Madras High Court and brought the plaint schedule properties to sale she had always disputed the claim of the plaintiffs to be the legal heirs of her husband Judgment -debtor In fact she denied that their mother was ever legally wedded to the judgment-debtor. In fact she denied that their mother was ever legally wedded to the judgment -debtor in the execution proceedings also they were not made parties. However in this case the finding of the trial Court that the plaintiffs and the first defendant are the legitimate children of the Judgment-debtor through his second wife is not questioned seriously and even otherwise as discussed above, it is established by the evidence on record. It is also clear that while they were not brought on record as the legal representatives either before the Madras High Court on the subsequent execution proceedings which were taken after the decree was transmitted to the Court of the subordinate Judge at Machilipatnam, they did take steps to get themselves impleade in another suit. O.s. No. 95/49. That was a suit for possession of some properties including the plaint scheduled property which were mortgaged for a period of 30 yers by all the brothers including Md. Ghouse Mohiddin to one Dr. Mohammed Ali which mortgage was assigned in favour of Jamaluddin. In that suie on the death of md. Ghouse Mohiddin, I.A. No. 560/51 was filed to bring the plaintiffs on record as the legal representatives of the deceased judgment debtor that was resisted by the second defendant and her children defendants 3, 4 and 5. Who were impleaded as legal representatives to the said suit. However the Court by its order Ex. A. 13 dated 5-11-1952 held the plaintiffs and the first defendant to be the legal representatives of the deceased Judgment-debtor In the three suits, viz. O.S. Nos. 39 40 and 41 of 1960 filed by the eighth defendant for redemption of mortgages and for possession as purchaser of the right of redemption of defendants 5 and 6 and some properties mortgaged in favour of Dr. Mohammed Ali and assigned in favour of jamaluddin, the plaintiffs along with the firstdefendant were brought on record. On the death of Ghouse Mohiddin, when the first wife and her children applied for succession certificate it was opposed by the second wife Nurinnisa begum and her children but, however the succession certificate Ex. A. 4 dated 6-4-1951 was granted on condition that the second defendant furnished security to the extent of the second wife's share these documents would undoubtedly show that the decree-holder as well as her children were fully aware that the plaintiffs and the first defendant were laying claim as the legal representatives of the deceased Judgment -debtor yet they did not choose to make them parties of course neither the decree-holder nor her children who were impleaded as legal representatives of the Judgment-debtor were admitting the claim of the plaintiffs and the first defendant and were seriously disputing even the legitimacy therefore on their own accord they could not be expected to bring them on record in the execution proceedings directed against the Matruka of the Judgment-debtor that would have given rise to a claim by the plaintiffs and the first defendant to a share in the entire Matruka of the judgment-debtor. The failure to bring them on record as legal representatives cannot, therefore be said to be the result of any fraud or collusion but only in assertion of their own rights. When the plaintiffs and the first defendant were asserting their rights and were making every effort to come on record in other proceedings, there is no reason why they should not have pursued the execution proceedings and contested the same. They could not have expected the decree-holder and the other legal representatives of late Ghouse Mohiddin, who were denying their claim to bring them on record in the execution proceedings, be that as it mat the Act of the decree-holder and the legal representatives of the judgment debtor cannot be said to be the result of any fraud or collusion so as to vitiate the execution proceedings and the Court auction sale so as to affect the title of the auction purchaser Excepting that the auction pruchaser is said to be the owner and purchaser of the lands adjacent to the plaint schedule lands nothing else is established by oral or documentary evidence to infer that he had knowledge of the plaintiffs relationship with the Judgment debtor and suppressed that fact fraudulently or collusively. In fact if he had known about their claim he would not have takne the risk of purchasing the property without their being impleaded as the legal representative. He would not have parted with more than Rs. 41,000/- if he had really known that the plaintiffs and the first defendant are also entitled to a share in the Matruka of the Judgment-debtor.

17. Another fact which remains uncontroverted is that the first defendant, who was sailing with the plaintiffs applied for being impleaded as alegal representative. But that petition was dismissed for default on 5-2-1969 which is borne out by Ex. B. 7. No further steps were taken to restore the said petition to bring them as legal representatives on record. So also the first defendnt filed a petition to set aside the sale now impugned in this suit Ex. B. 8 order dated 5-2-1969 shows that the said petition was dismissed for default and no attempt was made to challenge the sale thereafter now the plaintiffs have come up with this suit.

18. From the above discussion it is clear that the decree-holder and defendants 2 to 5 failed to bring (on record) the plaintiffs and the first defendant as legal representatives of the Judgment- debtor more in assertion of their own right and the denial of the right of the plaintiffs and the first defendant rather than with a view to play fraud on the Court. It is also clear that so far as the 8th defendant, auction-purchaser. Is concerned it is not established that he was aware of the right of the plaintiffs and the first defendant to a share in the Matruka of the Judgment-debtor. In these circumstances, what has to be seen is whether the Court auction sale, which has been held after impleading some of the legal representatives of the judgment-debtor is void or not binding in so far as the share of the other legal representatives of the judgment-debtor are concerned and whether it has to be set aside at their instance to the extent of their share and if so on what conditions. It has been already noticed above that defendants 2 to 5 being the legal representatives of the deceased judgment-debtor represent the estate at least in part and were rightly impleaded as the legal representaives of the Judgment-debtor on his death and they having denied the right of the plaintiffs and the first defendant to any share in the said estate purported to represent the entire estate. Though in fact they may not have had the legal right to the entire Matruka of th Judgment-debtor, they did in fact claim the same to the exclusion of the plaintiffs and the first defendant.

19. The auction purchaser himself in these circumstances could not have known. If there were any legal representatives of the deceased Judgment-debtor other than those already on record. The order directing the sale in execution or confirming the sale cannot be held to be illegal or vitiated no could the auction purchaser doubt or question the correctness of such orders in execution

20. In Rewa Mahton v. Ram Kishen singh (1885-86) 13 Ind, App. 106 (PC) it was held:

'A purchaser under a sale in execution is not bound to inquire whether the Judgment-debtor had a cross-Judgment of a higher amount such as would have rendered the order for execution incorrect. If the Court has jurisdiction, such purchaser is no more bound to inquire into the correctness of an order for execution than he is as to the correctness of the Judgment upon which execution issues?

The Court went on to observe:

'To hold that a purchaser at a salein execution is bound to inquire into such matters would throw a great impediment in the way of purchases under executions'.

In Malkarjun v. Narhari. (1900) 27 Ind App 216 (Pc) the question that arose was as to whether the executing Court would lose Jurisdiction to sell the properties if it serves notice on a person who does not represent the deceased Judgment-debtor and afterwards erroneously decides that he does. The Court held that such decision is valid unless set aside in due course of law. That was a case in which the Court did not issue notice to the right person before ordering execution sale. It was contended for him that he was not the right person but the Court having received his protest decided that he was the right person and so proceeeded with the execution. In so doing the Court was exercising its Jurisdiction it made a sad mistake it is true but a Court has jurisdiction to decide wrong as wellas right. If it decides wrong. The wronged party can only take the course prescribed by law for setting matters right and if that course is not taken the decision however wrong, cannot be disputed.

The Court went on to hold:

'A purchaser cannot possibly be Judge of such matters, even if he knows the facts and that if he is to be held bound to inquire into the accurancy of the court's conduct of its own business no purchaser at a Court sale would be safe Strangers to a suit are justified in believing that the Court has done that which by the directions of the Court it ought to do'.

In Kadir Mohidden Marakkayar v. Muthu Krishna Ayyar, (1903) ILR 26 Mad 230 a division bench of the madras High Court considering a case where the property was brought to sale for recovery of arrears of income-tax and on the death of the defendant o judgment-debtor his second son was not brought on record in the suit as one of the legal representatives of deceased mortgage and only the other son was brought on record alleging that he alone was the legal representative of the deceased defendant held:

'such person sufficinetl;y represents the estate of the deceased for the purpose of th suit and in the absence of fraud or collusion the decree passed in the suit will bind the estate'.

The Court emphasised that it is the duty of the legal representatives who claim to be entitled as legal representative to intervene and if the true legal representative or all the legal representatives do not intervene it can be due only to his or their laches. The Court further observed:

'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, sufficinetly 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. It will of course be open to any other person who is or claims to be the legal representative or one of the legal representatives of the deceased defendant tot apply to have his name also entered on the record as a legal representative in the place of the deceased defendant'.

The plaintiffs and the first defendant who claim to be the legal representatives in this case have not chosen to take any such step.

21. In kalananda Behari v. Kunhirakki, 57 mad LJ 712: (aiR 1930 Mad 69) a preliminary decree for sale was passed against defendants 1 to 3 in a mortgage suit. Subsequent tothe preliminary decree but before the final decree was made the third defendant died. His legal representatives were his father who was the 1st defendant his widow who was the 4th respondents the infant son was not brought on record as his legal representative before the final decree was passed. In execution on the final decree. The rights ofthe defendants 1 to 3 were sold. The third defendant's infant son who was not brought on record as his legal representative applied tohave the sale set aside on the ground that it was null and void. Venkatesubbarao. J., speaking of the Court observed:

'That the provisions of the C.P.C. relating to abatement did not apply to the case as the death of the third defendant was subsequent to the passing of the preliminary decree in the suit and that the estate of the deceased third defendant must be held to have been sufficiently represented by the 1st and the 4th defendants who were the only adult legal representatives of his and were already on record as defendants in the s uit and that therefore the final that was held were binding upon the entire estate incluidng that of the infant son'.

In is well settled that a universal donee represents the estate. The same principle was held applicable to a person in possession under a wil as a legatee of the part of the estate in Andhra bank Ltd. V. Srinivasan : [1962]3SCR391 (supra) the doctrine of representative was held applicable if some of the legal representaives are brought on record. The intermeddler, who was in actual possession of the property or in possession of only part of the estate is treated as a legal representaive and can be proceeded against? Therefore in our view there is no reason why the estate claimed by some of the legal representatives to the exclusion of other when brought on record, cannot be said to represent the entire estate of the deceased Judgment debtor.

22. Mr. P.L. N. Sarama however strongly contends that the parties being Muslims and their shares of Matruka devolve upon them none else can represent their shaes the application never purported to represent them or their shares. In title of the plaintiffs-repondents they could not be deemed to be representing the entire estate so as to make the cort auction sale binding on the plaintiffs-respondents. In support of his contention he places reliance upon the observations of the Supreme Court in Mohd sulaiman v. MohdIsmail : [1966]1SCR937 (supra) which reads thus (at p. 796):-

'Ordinarily the Court does not regard a decree binding upon a person who was not impleaded eo nomine in the action. But to that rule there are certain recornised exceptions where by the personal law agoverning theabsent heir the heir impleaded represents his interest int he estate of the deceased, there is yet another exception which is evolved in the larger interest of administartion of Justice.....'

This rule will of course not apply to cases where there has been fraud or collusion between the creditor and the heir impleaded or where there are other circumstances which indicate that there has not been a fair or real trial or that the absent heir had a special defence which was not and could not be tried int eh earlier proceedings'.

But even in that case the Supreme Court declared:

'That the doctrine of representation is not based upon the personal law of the parties. The principle is part of the law of procedure which regulates all matters going to the remedy and applies to all parties irrespective of their personal law'.

The principle behind the doctrine is stated thus:

'There is no difference in principle in the case where a debtor who is used for recovery of debt dies after the institution of the suit a nd his legal representaives are brought on record and a case where the creditor after making a diligent and bona fide enquiry impleads certain hiers as parties to his suit in the genuine belief that they are the only persons interested in the estate. In both the cases, the whole estate of the deceased will be duly represented by those persons who are brought on the record or impleaded and the decree will be binding upon the entire estate'.

Here the auction purchaser is not a party to the proceedings and is shown to be a bona fide purchaser not in collusion with the Judgment-debtor or the decree-holder and he cannot be placed in a worse position.

23. Even in C. Kushaldoss& sons v. Rajamanicka AiR 1930 Mad 930 on which reliance is placed by the learned counsel for the plaintiffs-respondents the principle recognised is whether the estate is sufficiently represented or not.

In this context it was held:

'that title does not pass to the absent purchaser as the other legal representatives have no saleable interest to the extent of the share of the legal representative not brought on record. It was also held that the bona fides of the auction-purchaser are not relevant in this context'.

This decision partly militates against what was held above but the principle accepted therein does not differ Even in that Judgment it was held:

'even where a suit is instituted by a creditor of the deceased against his wrong legal representatives the decree passed in the suit and the sale of the property of the deceased in execution of that decree is binding on the true legal representative. The estate is deemed to be as sufficiently represented if the suit was instituted bona fide against the alleged legal representaitve and the decree was obtained without any fraud or collusion between the parties. The binding nature of the decree is not limited only tothe items of property in the possession of the alleged legal representative but extends to the whole of the estate of the deceased'.

24. In Harihar prasad v. Balmiki prasad, : [1975]2SCR932 it was noted:

'the almost universal consensus of opinion of all the High Court is that where a plaintiff or an appellatn after diligent and bona fide enquiry ascertins who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by lae there is no abatement of the suit or appeal thatthe impleaded legal representatives sufficiently represent the estate of the deceased and the decision obtained with them on record will bind not merely those impleaded but the entire including those not brought on record'.

The Court after referring to its earlier decisions summed up by observing the principle is of representation of the estate of the deceased which need not be by all the legal representatives of the deceased'.

25. In Dolai Maliko v. Krushna chandra, : AIR1967SC49 the Supreme Court referring to its earlier decision in Mohd sulaiman v. Mohd Ismail : [1966]1SCR937 (supra) emphatically observed (at P. 747 of AIR 1975 Supreme Court):

'Unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in theproceedings there is no reason why the heirs who have applied for being brought on record should not be held to represent the entire estate including the interests of the heirs not brought on record. This is not to say that where heirs of an appellant are to be brought on record all of them should not be brought on record and any of them should be deliberately left out. But if by oversight or on account of some doubt as to who are the heirs any heir of a deceased appellant is left out that in itself would be no reason for holding that the entire estate of the deceased is not represented unless the circumstances like fraud or collusion existed'.

26. If the theory of doctrine of representation applies as held herein the only question would be whether the legal representatives brought on record in this case and who claimed to be exclusively entitled to the estate of the deceased Judgment-debtor represent the entire estate or not on the facts of this case we have no doubt that the legal representatives of the Judgment debtor and the decree-holder did purport to represent the entire estate of the judgment-debtor and thus the shares of the other legal representatives who have now come up as plaintiffs and nothing prevented these legal representatives from coming on record. Though the principle of caveat emptor applies even to the execution proceedings as held in Ahmedabad Municipality v. Hajiabdul. : AIR1971SC1201 , the question is not whether the auction purchaser must be vigilant but whether the Court in bringing to sale the properties of the judgment-debtor after some of the legal representatives of the deceased were brought on record but not all the legal representatives acted legally and whethere those brought on record represent the entire estate of the judgment-debtor we have no doubt that the executing Court on the material before it rightly held that the legal representatives brought on record represented the entire estate of the deceased judgment-debtor since the entire estate of the deceased Judgment-debtor on whose estate the decree was binding is represented in the execution proceedings the entire interest of the judgment-debtor in the properties brought to sale passes to the auction purchaser.

27. Under the Muslim Law it is well recognized that the estate of the deceased is boudn to discharge the dower debt along with other expenses of obsequies. The decree in the instant case was obtained even during the lifetime of Ghouse Mohiddin both his person and property were liable to satisfy the decree. There is no material to hold that there was no fair or real trial. There was no special plea available to the plaintiffs-respondents to avoid the liability of the dower decree their share of the estate was as much liable as the rest of the estate of the deceased No fraud or collusion is established by the evidence on record. It is also significant to note that the other representatives who claim a share in the property are not in possession of any of these properties In fact they are not in the village at all they were residing elsewhere and the property was in possession of the mortgagee and on the assignment of the mortgagor's interest the 8th defendant-appellant redeemed the mortgage and took possession of the property. If these legal representatives were at least in possession of the property the auction purchaser would have been put on notice of that we therefore hold that when the defendants 2 to 5 claim that the entire estate of Ghouse Mohiddin devolved upon them they sufficinetly represented the entire estate so as to bind the other legal representatives as well. In these circumstances the rights of the 8th defendant-appellant who was a bona fide purchaser for value cannot be defeated by the belated claim of the plaintiffs-respondents. In view of the foregoing discussion. We hold that the Court sale under which the 8th defendant-appellant purchased the plaint schedule property is valid and binding even in respect of the shares of the plaintiffs and the 1st defendant, and is not liable to be set aside on any ground whatsoever.

28. In the result, the appeal is allowed the Judgment and decree of the lower Court are set aside and accordingly the plaintiffs' suit is dismissed Each party to bear its own costs throughout.

29. Sri. P.L. Sarma the learned counsel for the plaintiffs-respondents makes an oral request for leave to appeal tothe Supreme Court. We are unable to certify that this is a fit case for grant of leave to appeal to the Supreme Court the oral request is therefore rejected.

30. Appeal allowed.


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