1. This second appeal raises an important question of law. The facts involved are simple and are as follows:
One Raj Bahadur alias Avadh Behari died indebted to several persons. On Raj Bahadur's death, two persons claimed to be his heirs under the Hindu law, namely, the plaintiff, who is respondent 1 before us, and the respondent 2, Raj Bahadur. The mutation Court held that Raj Bahadur was in possession, and directed the plaintiff, Parmanand, to seek his relief in the civil Court. This was some time in 1925, Raj Bahadur having died on 14th November 1924. Two decrees for money were obtained against Raj Bahadur, respondent 2, one by Seth Kishori Lal, one of the appellants, and the other by Seth Nathu Lal and Bala Prasad respondents. Kishori Lal in execution of his decree obtained against Raj Bahadur (defendant 1 and respondent 2, son of Mohan Lai) proceeded to sell the property of the deceased Raj Bahadur alias Avadh Behari. The property was sold at an auction sale held by the Court, and defendant 2 who is the appellant 2, Amir Chand, purchased the same. The other decree-holders claimed rateable distribution in the price paid by Amir Chand. The plaintiff, Parmanand, brought a suit on 28th January 1928, claiming possession of the property as against his rival claimant, Raj Bahadur, son of Mohan Lal, the auction-purchaser Amir Chand and the three decree-holders on the allegation that he, the plaintiff, was the real heir of the deceased, that out of poverty he could not bring his suit earlier and that he was entitled to possession of the property.
2. The Court of first instance found that, as a matter of fact, Parmanand was a degree higher in the pedigree than Raj Bahadur son of Mohal Lal, that Parmanand was the real heir to the property of Raj Bahadur deceased and that the decrees had been obtained bona fide against Raj Bahadur defendant in the belief that he was the real heir and on the ground that Raj Bahadur was in possession of the property of the deceased Raj Bahadur alias Avadh Behari. On these findings the learned Munsif dismissed the suit holding that the estate of Raj Bahadur alias Avadh Behari was sufficiently represented by defendant 1, Raj Bahadur, for the purposes of the suit, decree and execution and that therefore the plaintiff was not entitled to maintain the suit.
3. On appeal by the plaintiff, the lower appellate Court, following a decision of this Court decreed the suit: hence this appeal.
4. The question that we have to try is whether in the circumstances of the case the judgment of the Court below has been rightly pronounced. We shall proceed to examine the principles underlying such a suit before we proceed to examine the decided cases. It goes without saying that a decree between two parties does not ordinarily bind anyone execept the actual parties to it. If in execution of a decree a property be sold, then what passes by the sale to the auction-purchaser is only the right, title and interest of the judgment-debtor and of nobody else. It follows that if the judgment-debtor has no title to the property the auction-purchaser would obtain nothing by his purchase. On these elementary principles, the plaintiff, Parmanand, cannot be bound by the decree obtained against Raj Bahadur, son of Mohan Lal, and the sale of the property in execution of Kishori Lal's decree conveyed nothing to Amir Chand, if Raj Bahadur, son of Mohan Lal, was not the owner of the property. When a person dies indebted and a creditor of his, wants to realise the money, the creditor must proceed against the person, who represents the estate of the deceased. If the creditor proceeds against anybody else and professes to put a property of the deceased to sale, what would pass to the purchaser would be the interest of the person who is made a party to the suit and nothing else. If the creditor has proceeded against a person who does not represent the estate, the auction-purchaser will for obvious reasons, take nothing, because the judgment-debtor did not represent the estate.
5. Where a creditor of a deceased person proceeds to sue a defendant on the ground that he represents the estate of the deceased, there is as a rule, no decision by the Court as to whether the defendant does really represent the estate of the deceased. Even if the defendant deny that he represents the estate and if the Court should hold in spite of the denial that he does represent the estate, the judgment binds only the parties to the suit and it does not bind a third party, who may be the real heir and representative of the deceased debtor. Where the party made defendant does not contest the suit at all as in the present case, it follows, for all the greater reason, that the judgment does not bind the real heir or legal representative. In a case where a decree has been obtained against a debtor and the debtor then dies, the Court executing the decree has to decide for itself, for the purposes of execution who is the legal representative of the deceased. Then it is as much to the interest of the decree-holder as to the interest of the legal representative of the deceased debtor to come before the Court and to establish who is the person entitled to represent the estate of' the deceased debtor for the purposes of execution. As we have said, the Court having to execute the decree before it must decide for itself who is the legal representative. It has jurisdiction to arrive at a decision and, if in the exercise of its jurisdiction it arrives at a wrong conclusion as to who is the legal representative and sells the property, the sale would bind the estate of the deceased and therefore, the true representative, as much as the person brought on the record, for the Court has jurisdiction to decide both wrong; and right and the decision is binding on, the legal representative. Such a case is; entirely different from a case like the one before us where the legal representative is nominated by the plaintiff and the right of the Court to sell the property of the deceased will depend on whether or not the decree it passes is against a man who rightly represents the deceased person's estate.
6. Where the debtor himself has beets sued or where a decree has been obtained against the debtor, and he dies before the decree has been passed or has been executed, the procedure to be followed by the Court in bringing the legal representative of the deceased on the record will be governed by the Civil Procedure Code. But where a debtor dies before he could be sued, it becomes the duty of the creditor to sue the right person as the legal representative of the deceased. It is only after a suit has been instituted that the Civil Procedure Code comes into operation. It follows that the definition of the expression 'legal representative,' to be found in the Civil Procedure Code, is meant only for the purposes of the Code and not as a general statement of a substantive rule of law. We have stated in an earlier part of this judgment that a decree doe' not ordinarily bind anybody but the parties to it. It may however be the case that one of the parties represents another person, who is not a party to the suit, and in that case the party who is represented by one of the parties to the suit, will also be bound by the decree. This follows from Section 11, Civil P.C. which is a statement of a substantive rule of law. It also follows from general principles, for example, where a decree is obtained against a manager of a joint Hindu family and where it is clear that the manager actually and substantially represented the family, the decree obtained by or against him will bind the remaining members of the family. From a consideration of the above principles of law, it would follow that a decree cannot bind another unless that person was substantially represented by one of the parties to the decree. Then, in the case before us, the question is, was Parmanand substantially represented in the suits instituted by Kishori Lal, Nathu Lal and Bala Prasad, in the decrees that they obtained against Raj Bahadur, son of Mohan Lal? All that has been found in this case is that Raj Bahadur's name was entered in the Khewat on the death of the deceased Raj Bahadur alias Avadh Behari, on the ground that Raj Bahadur son of Mohan Lal, was in possession of the estate of the deceased and that, once having obtained possession, Raj Bahadur, son of Mohan Lal continued to be in possession for three years odd before the present suit was instituted. Now, as has been observed by their Lordships of the Privy Council, a mutation order is made for fiscal purposes and not for determination of title. The land revenue has to be realised by the Government and the person in possession is the most suitable from whom it may be realised whether he be the real owner or not : see Section 40, N.W.P., and Oudh Land Revenue Act, 1901, and Nirman Singh v. Budra Pratap Singh A.I.R. 1926 P.C. 100. It follows that the person in possession with his name recorded in the village papers is a representative of the deceased only for the purposes of realisation of land (revenue and for no other purpose.
7. It would follow from the above that any decree obtained against a person (Raj Bahadur, son of Mohan Lal, in this case) who is not the rightful heir, but whose name is recorded will not be binding on a person who claims adversely to the person whose name is recorded in the khewat, as is the case with the plaintiff, Parmanand, in the present instance. It would be against all principles of law to say that Raj Bahadur, son of Mohan Lal, whose I interest was entirely adverse to that of Parmanand, represented Parmanand in the suits of defendants 3-5, and the decrees obtained against Raj Bahadur would bind Parmanand. In the circumstances like the present, where the defendant sued is a pure trespasser, the defendant may know that he would be hardly affected if the property, not his own, be sold up. It would not be to his interest to protect the estate against any claim, good or bad, of a creditor to realise the debt out of the property. The estate is not safe in the hands of a person holding adversely to the rightful heir. It would therefore be wrong to say that the trespasser represents one rightful heir, simply because the trespasser is for the time being in possession and his name is recorded in the khewat. On general principles therefore we must hold that the plaintiff suit was rightly decreed by the lower appellate Court. Now we shall proceed to examine some of the decided cases including those that have been cited before us.
8. The earliest case decided in this Court is the Full Bench decision in Jafri Begam v. Amir Mohammad Khan (1885) 7 All. 822. There the questions referred to the Full Bench were three in number. The first was, whether on the death of a Mohamedan intestate leaving unpaid debts, does the ownership of such estate devolve immediately on his heirs or whether the devolution is contingent upon and suspended till payment of such debts. The answer given to this was in the affirmative. We are not concerned with this question. The second question was whether a decree relative to such a deceased person's debts passed against some only of the heirs of the deceased who may be in possession of the whole or a part of the assets, binds the other heirs, who are out of possession. The answer given was in the negative. We are concerned, only distinctly, with this question. If the answer given be the correct law, viz., the heirs not in possession and not parties to the decree are not bound by the decree, it follows that, in the circumstances of the present case, the decree passed would not be at all binding on Parmanand, for Raj Bahadur, son of Mohan Lal, was not even one of several heirs of the deceased Raj Bahadur alias Avadh Behari. The answer to the question did not depend on any peculiarity of the Mohamedan law, and therefore the principle laid down should govern a case like the one before us.
9. The third question as amended by the Full Bench was this. If the decree be not binding, is the plaintiff (one of the heirs) entitled to recover, from the auction purchaser in execution of such a decree, possession of his share in the property sold, without such recovery of possession being rendered contingent upon payment by him of his proportionate share of the ancestor's debts for which the decree was passed and in satisfaction where of the sale took place. The answer to this question was given in then negative. We are concerned with this question and answer.
10. Unfortunately, so far as the report goes, four of the learned Judges did not give any reason whatsoever for their answers. The fifth Judge (Mahmood, J.), wrote a long judgment. He agreed generally in the answers given by the Chief Justice and the other Judges. It cannot be argued on the basis of the third question and answer that the plaintiff, Parmanand, is entitled to recover the estate sold to Amir Chand only on payment of the ancestor's debt. The reason is clear. Raj Bahadur did not represent the estate, and the decree passed against Raj Bahadur would not support an order for sale of the deceased person's property who was never represented by the defendant in the suits. In the Full Bench case some of the heirs were parties and they were in possession of the estate. Thus they substantially represented the deceased person's estate. The next case decided in this Court, to which our attention has been drawn in that of Lalsa Rai v. Udit Rai A.I.R. 1924 All. 717, decided by a learned Single Judge of this Court (Gokul Prasad, J.). A portion of the judgment of the learned Judge is worth quotation. It is as follows:
It is quite true that when a person intermeddles with the property of the deceased he is a legal representative of the deceased for the purposes of procedure to the extent of the property with which he has intermeddled, but I do not see any principle of law which makes him the representative of the deceased so far as succession to the property of the deceased is concerned. The definition of 'legal representative' in the Code of Civil Procedure is only for the purposes of procedure in instituting and defending suits. Any definition for the purposes of adjective law cannot alter the rule of substantive law and it is not easy to understand how the mere fact that an intermeddler is joined as a party to the suit for recovery of possession can make a decree in that suit in any way binding on the real heir who is not a party to that suit and who later on gets a decree against the intermeddler declaring his superior right.
11. In our opinion, this statement contains a correct view of the law and we are in full agreement with it. The next case which we propose to notice is a Privy Council decision in Khiaraj Mai v. Daim (1905) 32 Cal. 296. The facts of this case are a little complicated, but it may be stated briefly as follows:
12. Certain persons made usufructuary mortgages of their properties. The mortgagees obtained decrees against some of the mortgagors and the heirs of others and brought portions of the mortgaged property to sale. Then other heirs of the mortgagors, who were not parties to the decrees which ended in the sale of the properties, brought a suit for redemption of their shares in the mortgaged property. It was found that the auction-purchaser was a man of the mortgagees and the mortgagees and the real purchasers. The question arose how far the decrees obtained against some of the heirs bound the plaintiffs. The judgment is long and sets forth the facts in detail, but the conclusions of their Lordships will be found in the following quotations from the judgment : At p. 312 their Lordships are reported to have stated as follows:
Their Lordships agree that the sales cannot he treated as void or now be avoided on the grounds of any material irregularities of procedure in obtaining the decrees or in the execution of them. But on the other hand the Court had no jurisdiction to sell the property of persons who were not parties to the proceedings or properly represented on the record. As against such persons the decrees and sales purporting to be made would be a nullity and might be disregarded without any proceeding to set them aside. If authority be desired for these elementary propositions it may be found in the judgment of Sir Barnes Peacock in Kishen Chunder Ghnse v. Ashoorun (1863) 1 Marsh 647.
13. This quotation makes it clear that a person to be bound by a decree or sales held under it must either be a party to the decree or must have been properly represented on the record. At p. 313 their Lordships were considering whether the estate of one of the mortgagors Nabibaksh could be redeemed by the then plaintiffs. After stating certain facts their Lordships remarked as follows:
Their Lordships think that Nabibaksh was sufficiently represented for the purposes 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 in No. 372 of 1879 is therefore bound by the sale, and irredeemable.
14. Now, dealing with the facts, their Lordships found that Nabibaksh him self was the defendant to the suit No. 1879 and himself signed a reference to arbitration. On his death, his two widows and his minor son under the guardianship of his mother were brought on the record. It was further found that they were served with summons and were prepared to accept the award of the arbitrator and they were also served with notice of sale. In the circumstances, their Lordships expressed the opinion that the absence of an infant daughter from the array of parties (on the death of the defendant Nabibaksh) did not make any difference and the estate of Nabibaksh did pass. This view it will be noticed is in conformity with their Lordships' decision in a prior railing of their own in Malkarjun v. Narhari (1901) 25 Bom. 337. It will also be noticed that it supports our view stated above, viz., where a person is actually on the record and dies, the question who is to represent the estate falls to be decided by the Court itself and any wrong decision of the Court as to the legal representative will not fail to bind the estate of the deceased person, even if the rightful heir or heirs are not brought before the Court. Again at p. 313 of the report, their Lordships consider how far the estate of Alibaksh passed by the decree and execution sale. It appears that Alibaksh's brother Nabibaksh had executed the mortgage for himself and his brother. Their Lordships remarked that it might be that Nabibaksh could have represented Alibaksh in the suit, Alibaksh himself not being a party to it. But their Lordships further remarked that Nabibaksh being dead, it was im. possible to consider that Alibaksh was sufficiently represented by the widows or the infant son of his deceased brother (Nabibaksh) and then their Lordships say:
In fact his (Alibaksh's) interest in the property seems to have been ignored altogether. He is not mentioned as a debtor in the award, and there is no decree against him. The Court therefore had no jurisdiction to sell his share amounting to six twenty-fourths.
15. At p. 814 their Lordships deal with the question of representation of claimant by a party to a suit and remark as follows:
The Indian Courts have properly execised a wise 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 case& where the person named as a defendant is de facto manager of a Hindu family property, or has assets out of which the decree is to be satisfied under his control.
16. The case before us is not like the one which their Lordships considered and commented upon. Then again at p. 314 their Lordships consider the case already quoted above of Malkarjun v. Narhari (1901) 25 Bom. 337, and comment on it as follows:
In that case a judgment had bean given against a debtor, who afterwards died, and in executing the decree against his estate, a person was served, as his heir, with a notice of the intended sale. The person served objected (as it was proved rightly) that he was not the heir of the deceased, but the Court overruled the objection. The purchaser at the sale was a stranger and not the judgment-creditor. It was to this state of circumstances that Lord Hobhouse's observations were directed. His Lordship said 'He (the person served, contended that he was not the right person, but the Court, having received his protest, decided that he was the right person, and so proceeded 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 well as right. If it decides wrong, the wronged party can only take the course prescribed for setting matters right, and if that course is not taken the decision however wrong cannot be disturbed. Their Lordships observed that the case of Malkarjun v. Narhari (1901) 25 Bom. 337 had no application to the facts before them.
17. At p. 315 their Lordships remak that what was important was that an estate should be substantially represented and it was all a question not of form but of substance. The conclusion that we draw from a consideration of this case and also the case of Malkarjun v. Narhari (1901) 25 Bom. 337 is that where the judgment-debtor is not himself sued but dies before the suit and a defendant is sued as representing the deceased person's estate, the defendant, in order to bind the estate and the rightful heir must substantially represent the estate and that where the defendant does not substantially represent the estate, the Court has no jurisdiction to sell the estate and the decree would not bind the real heir. But where a debtor himself is a party to a suit and dies either in the course of the suit or in the course of execution proceedings and the Court, by a judicial decision, brings a person on the record as the legal representative of the deceased debtor, the decision however wrong will bind the estate of the deceased person and the rightful heir cannot subsequently come and dispute the correctness of the decision or the jurisdiction of the Court to sell the deceased debtor's estate. If our conclusions be right, in the present case, Raj Bahadur, son of Mohan Lal, never represented the deceased person's estate. There was no adjudication by the Court that Raj Bahadur was the legal representative of the deceased, because the suit was brought after the death of the debtor, and the Court had no jurisdiction to sell the property, of the deceased. In the circumstances, there is no bar to the plaintiff's success.
18. We shall now consider certain decisions relied on by the learned Counsel for the appellants. In K. Amma v. Madhavi Amma : AIR1928Mad243 , there is a judgment of a learned Single Judge of the Madras High Court. This was a suit by a female plaintiff who claimed the properties in suit which had been sold in execution of a decree against a deceased person, as hers on the ground that those properties had been beqeathed to her by the deceased. It appears that the will did not appoint any executor. It beqeathed only the properties in suit to the plaintiff. On the death of the testator, the suit to recover his debts had been brought against the Karnavan of the Tarwad to which the deceased belonged. The learned Judge held that he was not prepared to say that in the circumstances the estate of the deceased was not represented by the Karnavan of the Tarwad and he therefore held that the plaintiff could not be allowed to recover the property. It will be noticed that this case in no way supports the appellants. Prom the judgment it appears that the deceased's estate was represented by the defendant in the suit, in the absence of any executor appointed by the will. The bequest of some of his properties by the testator in favour of the plaintiff did not make the plaintiff a legal representative of the deceased, qua the entire estate. Further it was the case that the creditor had no knowledge of the will. The next case is that of Sanna Govappa v. Sanna Govappa : AIR1929Mad482 . The facts appear to be these. A mortgagor Honnappa died having made a will in favour of his wife giving her absolute title. The widow of Honnappa, one Gangamma, executed a will and thereby bequeathed the mortgaged property to the plaintiff. The mortgagee brought a suit for recovery of his money by sale of the property on the death of Honnappa against his widow Gangamma. So far the suit was rightly brought. Gangamma having died pending the suit, a person other than the plaintiff was brought on the record and the suit was decreed. It was held that in the circumstances the plaintiff could not recover. The case clearly fell within the principle of the ruling of their Lordships of the Privy Council in Malkarjun v. Narhari (1901) 25 Bom. 337 and therefore does not support the plaintiff's case. The case of Mata Prasad v. Abdul Hasan A.I.R. 1917 Oudh. 135, is a decision of the Judicial Commissioner's Court of Oudh. In this case one of the learned Judges Mr. Stuart, A.J.C. expressed the opinion that if a decree be obtained on contest against a trespasser without any fraud or collusion, that decree would bind the person having the proper title to the property. It does not appear that the other learned Additional Judicial Commissioner accepted this view. Mr. Stuart quotes no authority nor does he discuss the principle. We are unable to agree with Mr. Stuart. The trespasser can in no sense be taken to have represented the rightful owner. In B. Soorrayya v. Chinna Anjaneyalu A.I.R. 1919 Mad. 16 the deceased debtor's paternal uncle was sued as representing the debtor. On the decree that followed the property of the debtor was sold up. The plaintiff the legal heir, thereupon claimed the property. It was held that he could not. It was found that the defendant in the earlier suit was actually in possession of the property of the deceased debtor. It was held that the plaintiff did not and could not recover the property. Their Lordships at p. 510 remark as follows:
The case of a decree passed on a suit brought against a person in possession but who is not the heir of the deceased debtor's estate, must of course, be treated as an exception to the general rule that proceedings in execution of a decree do not bind the interest of any person who was never brought on the record as a party to the proceedings in the suit.
19. There is no discussion in the judgment of the principle on which this exception is sought to be made. We have already pointed out that the definition of 'legal representative' to be found in the Civil Procedure Code is for the purposes of devolution of interest pending a suit or pending an execution proceeding and it has no bearing where the debtor dies before the suit. With all respect we are unable to accept this decision as a correct one. Their Lordships refer to two Privy Council cases, namely, General Manager of Raj Durbhanga v. Samaput Singh (1870) 14 M.I.A. 605 (P.C.) and Bissessur Lal Sahoo v. Lachmessur Singh (1881) 6 I.A. 233 (P.C.). These two cases lay down only what has been laid down subsequently in Khiraj Mal v. Baim (1905) 32 Cal. 296, namely, an estate should be substantially represented, to bind the owners who are not parties to the suit. The last case relied on, on behalf of the appellants is Batuh Nath v. Jugal Kishore : AIR1926All285 , a decision of this Court to which one of us was a party. This was a substitution in the course of an execution of a decree. The judgment-debtor having died, his widow was substituted and when the widow gave birth to a posthumous son, it was held that he could be substituted in her place. This case does not help the appellants. The result is that the appeal fails and is hereby dismissed but without Boats as the respondent was not heard because he did not make good the deficiency in court-fees payable in the Court below.