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Kazim Ali Khan and anr. Vs. Om Prakash and anr. - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1937All731
AppellantKazim Ali Khan and anr.
RespondentOm Prakash and anr.
Excerpt:
.....detail the anterior history which has given rise to the present suit. we might mention that the final decree was taken in appeal to the high court and the final decree was confirmed by this court as well. having been unsuccessful in the execution department, chandra shekhar and ghanshyam das made an application to this court for the amendment of the decree. 6. it must, therefore, be taken that one of the plaintiffs was in existence at the time of the institution of the former suits, and the question that we have got to decide is whether the decree passed in the earlier suit binds om prakash as well or not. nimman kunwar (1912) 34 all 549, a full bench of this court held that where in a suit for sale on a mortgage the defendants-mortgagors were the managing members of a joint hindu..........and obtained a preliminary decree in which the old numbers mentioned above were given. before a final decree could be prepared, there was a new settlement and the mortgagee decree-holders, when applying for the preparation of the final decree, gave what they considered to be the corresponding new numbers of nos. 20, 26 and 29. it was mentioned in the application that no. 20 was renumbered as no. 17, but nos. 26 and 29 were renumbered as no. 19. notice of this application went to chandra shekhar and ghanshyam das, the judgment-debtors, but no objection seems to have been taken by them with the result that a final decree was prepared on 22nd december 1923 and the recent numbers were given in the decree according to the application of the decree, holders.3. the mortgagee decree-holders.....
Judgment:

1. This is an appeal by Kazim Ali Khan and Nisar Ahmad, defendants 1 and 3, against the decree passed by the learned Civil Judge of Muzaffarnagar on a suit brought by the plaintiffs, Om Prakash and Kailash. Their claim for the recovery of possession over the plaint property and certain mesne profits was allowed. The principal plea taken in defence in the Court below as well as before us was that the plaintiffs' suit was barred by the principle of res judicata. In order to appropriate this plea as well as the other pleas taken by the defendants, it is necessary to state in some detail the anterior history which has given rise to the present suit.

2. It appears that one Raghunandan Prasad was the owner of some zamindari property which after his death came into the possession of his sons, Chandra Shekhar and Ghanshyam Das. These two executed three mortgages in the years 1905 and 1906 in favour of the defendants, and the mortgaged property was comprised in several khewats, viz. Nos. 20, 26 and 29. The mortgagees brought Suit No. 464 of 1917 against Chandra Shekhar and Ghanshyam Das and obtained a preliminary decree in which the old numbers mentioned above were given. Before a final decree could be prepared, there was a new settlement and the mortgagee decree-holders, when applying for the preparation of the final decree, gave what they considered to be the corresponding new numbers of Nos. 20, 26 and 29. It was mentioned in the application that No. 20 was renumbered as No. 17, but Nos. 26 and 29 were renumbered as No. 19. Notice of this application went to Chandra Shekhar and Ghanshyam Das, the judgment-debtors, but no objection seems to have been taken by them with the result that a final decree was prepared on 22nd December 1923 and the recent numbers were given in the decree according to the application of the decree, holders.

3. The mortgagee decree-holders then proceeded to execute their decree and when notice went to the judgment-debtors they objected and said that there had been a mistake in the preparation of the final decree and Nos. 26 and 29 did not correspond to No. 19. Nos. 26 and 29 according to the judgment-debtors had an area of about 37 bighas whereas No. 19 had an area of about 151 bighas. The Court executing the decree dismissed the objection of the judgment-debtors on 10th September 1928 with the observation that the details of the property to be sold were in accordance with the decree passed under Order 34, Rule 5, Civil P.C., and such an objection was not made when that decree was passed. We might mention that the final decree was taken in appeal to the High Court and the final decree was confirmed by this Court as well. Having been unsuccessful in the execution department, Chandra Shekhar and Ghanshyam Das made an application to this Court for the amendment of the decree. That application was dismissed by this Court on 7th March 1929, and it was pointed out that Chandra Shekhar had appealed from the final decree and had not taken any objection against the new numbers entered in the decree and the decree as passed by the trial Court was affirmed on appeal by the High Court. The Bench was of the opinion that the correction of the final decree could not be allowed merely because certain old numbers were mentioned in the preliminary decree. The property entered in the final decree, namely khewat No. 19, was sold and purchased by the mortgagee decree-holders.

4. The present suit was brought on 20th April 1929 shortly after the dismissal of the application for the amendment of the final decree. The plaintiffs to the suit were Om Prakash and Kailash, both minors. It may be mentioned that Om Prakash and Kailash are both sons of Ghanshyam Das. It was alleged that Om Prakash had been adopted by Chandra Shekhar. The plaintiffs in their plaint gave the history of the earlier litigation and in para. 11 said that on the application of defendants 1 and 2 (the mortgagees) a decree under Order 34, Rule 5, was wrongly passed in their favour on 22nd December 1923 inasmuch as new khewat No. 19 was substituted for old khewats Nos. 26 and 29. It is noteworthy that beyond this fact nothing else was said about the mortgages on the basis of which the mortgagees-had obtained the decree. No allegation was made that the mortgages were tainted with illegality or immorality or that there was no legal necessity for the execution of the mortgages. As a matter of fact, the plaintiffs could not plead the illegality of the mortgages because at the time when the mortgages were executed, the entire-family consisted of Chandra Shekhar and Ghanshyam Das and the two plaintiffs-were not even born. The plaintiffs then-went on to say that the property which was not mortgaged was sold and purchased by the mortgagee decree-holders. They said that the decree and the sale was not binding on them and that they were entitled to recover possession of the property which had been wrongly sold and were further entitled to certain mesne profits. As we stated before, the principal plea taken in defence was that the plaintiffs' suit was barred by res judicata inasmuch, as they must be deemed to be represented in the former litigation by Chandra Shekhar and Ghanshyam Das.

5. The appeal came before us for hearing at first on 8th January 1936, and it was argued on behalf of the defendant appellants that Kailash, plaintiff 2, was admittedly not born at the date of the institution, of the former suit and Om Prakash, although according to the age given at the heading of the plaint might be said to have been born at the time of the institution of the former suit, the age so given was not accurate, and as a matter of fact Om Prakash was also not in existence age the time of the earlier suit. We, therefore, remitted an issue on the question as to whether Om Prakash was born before the institution of Suit No. 429 of 1916 and Suit No. 464 of 1917. The finding of the Court below on this issue is that Om Prakash was born on 13th February 1915-prior to the institution of the two suits and was an infant in arms at that point of time. Objections have been taken against, this finding, but it is clear that on the evidence produced in the Court below on behalf of Om Prakash, the finding cannot be challenged, and learned Counsel for the appellants did not seriously contest the finding.

6. It must, therefore, be taken that one of the plaintiffs was in existence at the time of the institution of the former suits, and the question that we have got to decide is whether the decree passed in the earlier suit binds Om Prakash as well or not. Certain authorities were brought to the notice of the Court below, and it was argued on the strength of those authorities that the sons were bound by the mortgage decree on the ground that they were represented in the mortgage suit by the manager of the joint family but the Court below was of the view that

That may be true as far as mortgaged property is concerned, because the father in the capacity of a manager of a joint Hindu family is entitled to mortgage the joint family property for family necessity. But the sons cannot be said to have been duly represented by their fathers at the time of the preparation of the final decree in the mortgage suit when property, which is in excess of the mortgaged property, was being entered in the mortgage decree.

7. In this view he held that the plaintiffs were not duly represented by their fathers as far as the property in dispute was concerned and he, therefore, decreed the plaintiffs' claim for recovery of possession over the plaint property.

8. In appeal before us it is contended that the view taken by the Court below -is wrong, and it is argued that there is no difference in principle between the case where the mortgagees bring a suit upon the basis of the mortgage against the executants who are the managers of the joint Hindu family without impleading minor members and proceed to sell the property mortgaged and a case where they bring a similar suit against the managers without impleading the minor members and proceed to sell certain property which is in excess of the property mortgaged. The principle of representation is the same in both cases and the minor members stand to lose or to gain according to as the manager conducts the litigation.

9. In Kishan Parshad v. Har Narain Singh (1911) 33 All 272, their Lordships of the Privy Council held that where a joint family business has to be carried on in the interests of the joint family as a whole, the managing members may properly be entrusted with the power of making contracts, giving receipts, and compromising or discharging claims ordinarily incidental to the business; and where they are so entrusted and empowered, they are entitled as the sole managers of the family business to make in their own names contracts in the course of that business, and to maintain suits brought to enforce those contracts without joining in the suit with them either as plaintiffs or defendants the other members of the family. This decision of their Lordships of the Privy Council is an authority for the proposition that the managing members of a joint family can bring suits on behalf of the other members of the family who would be bound by the result of that litigation.

10. In Hori Lal v. Nimman Kunwar (1912) 34 All 549, a Full Bench of this Court held that where in a suit for sale on a mortgage the defendants-mortgagors were the managing members of a joint Hindu family, who in that capacity had purchased the mortgaged property, the family was sufficiently represented by the managing members and that the suit would not fail by reason of the nonjoinder of the other members of the family. It will be seen that in this case the mortgagors were the defendants and the plaintiffs had impleaded only the mortgagors of the family in the suit brought on the basis of the mortgage, and it was held by this Court that the entire family was sufficiently represented by the managing members.

11. In Sheo Shankar Ram v. Jaddo Kunwar A.I.R. 1914 P.C. 136, their Lordships of the Privy Council affirmed the decision of the High Court in Jaddo Kunwar v. Sheo Shankar Ram (1911) 33 All 71 on the ground that the plaintiffs who sued to redeem a mortgage after foreclosure on the plea that they had not been parties to the mortgage suit, were properly and effectively represented in the suit by the managing members of the joint Hindu family of which the plaintiffs were also members. Their Lordships saw no reason to dissent from the Indian decisions which showed that there were occasions, including foreclosure actions, when the manager of a joint Hindu family so effectively represented all the other members that the family as a whole was bound. An-other case to which our attention was drawn was the case in Tulshi v. Bishnath Rai A.I.R. 1923 All 284. In this case a suit was brought against the managing member of a joint Hindu family and certain other adult members of the family were also joined, but certain minors were left out, and it was held in an appeal by way of Letters Patent that the family was properly represented and the minor members of the family were also bound by the decree. In the year 1927 their Lordships of the Privy Council in Lingangowda Dod-Basangowda v. Basangowda Bistangowda once again held that a decision in a suit by or against a leading member of a joint Hindu family acting either on behalf of minor members of the family in their interest or if they are majors, with their assent, binds the whole family. The Bombay High Court has taken a similar view in Madhusudan Pandurang v. Bhagwan Atmaram A.I.R. 1929 Bom. 213.

12. It is thus clear that Om Prakash, plaintiff 1, will be bound by the former decree. Ghanshyam Das and Chandra Shekhar sufficiently represented him in the former litigation. Their interests were in no way adverse to the interests of Om Prakash. It has not been pleaded in the present suit that the mortgage was not for legal necessity and therefore Ghanshyam Das and Chandra Shekhar could not have been appointed guardians of Om Prakash in the former litigation. The two adult members must be considered to be fighting the battles of the entire family and the entire family stands to lose or gain by the decision in the former case. The suit continues right up to the time the final decree is prepared and if a mistake creeps in the final decree, the parties are bound by it. As a matter of fact Chandra Shekhar and Ghanshyam Das did their best to get the cancellation of the final decree but could not succeed and the present suit has been brought after Chandra Shekhar and Ghanshyam Das had exhausted such remedies as were open to them. It was also contended by learned Counsel for the appellants that the joint family property having passed out of the family in execution of a decree, it is not open to the sons to bring a suit for the recovery of possession of that property except upon proof that the debt on the basis of which the decree was obtained was tainted with immorality. It is not necessary for us to give any opinion on this aspect of the case if we hold the view that the present suit is barred by res judicata on the ground that the plaintiffs must be deemed to have been represented in the former suit by their fathers.

13. It was argued on behalf of the plaintiffs-respondents that the principle of res judicata would not apply to the facts of the present case inasmuch as the former decree was obtained by fraud and fraud vitiates the most solemn proceedings. It might be pointed out that there is no allegation of fraud in the body of the plaint and all that was stated in the plaint was that the mortgagee decree-holders had at the time of the preparation of the final decree put down wrong new numbers in place of old numbers. One Amir Haidar, pairokar of the defendants, made a statement in this suit under Order 10, Rule 2, Civil P.C., and he said that when at the time of the application for the preparation of the final decree it was said that Khewats 26 and 29 had become Khewat No. 19, he had got that information from the zamindars and the patwari, and there is no evidence on the record of this case that any fraud was practised1 by the defendant mortgagees. A notice was issued on the application of the decree-holders and the judgment-debtors did not protest. It may be that they were lulled into a sense of security and. they thought that the decree, holders were proceeding to have a final decree prepared on the basis of the preliminary decree, but if they did so, they have to thank themselves for not taking proper care at the time when such care ought to have been taken. No issue was struck by the Court below on the question of fraud, and the finding, if any, is really against the theory that there was any fraud. The Court below observes:

It appears that there was wrong substitution of property at the time of the preparation of the final decree on account of the ignorance and misrepresentation of defendants 1 and 2 and their pairokar.

14. This is far from saying that any fraud was practised by the defendants and their pairokars. The misrepresentation, if any, was made on account of ignorance and, as such, the decree is not liable to attack on the ground of fraud. It was also argued that if there was a mistake there was a mutual mistake inasmuch as both the plaintiffs and defendants in the former litigation thought that the new numbers which were given by the decree-holders did as a matter of fact correspond with the old numbers entered in the preliminary decree, and therefore on the analogy of Section 20, Contract Act, the plaintiffs are entitled to relief. Section 20, Contract Act applies only to contracts which might be rectified if the mistake is a bilateral mistake of both parties but that analogy cannot be applied to the case of a decree. It is not possible to avoid a decree by means of a fresh suit on the ground that the decree has been obtained on account of the mistake of parties.

15. In the view which we have taken of the ease, it is not necessary for us to discuss the point taken by the defendants-appellants that in any view of the case the mesne profits awarded by the Court below were excessive, but in order to make our judgment complete we might say that although learned Counsel for the appellants has drawn our attention to some evidence in the case on the question of mesne profits, the decision of the Court below on that question is correct. A commissioner was appointed in order to find out what trees had been out by the defendants after they had entered into possession over the property and what was the value of those trees. There was also the evidence of the patwari regarding the mesne profits qua 80 bighas Kham. On both these points and on the produce of the lukat crop there was sufficient material before the Court below for the finding at which it arrived. If, therefore, we had agreed with the Court below on the question of res judicata, we would have affirmed the decree of the trial Court on the question of mesne profits, but as we hold that the plaintiffs' suit is barred by res judicata we allow this appeal and dismiss the plaintiffs' suit with costs in both Courts.


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