S.K. Ray, J.
1. This first appeal has been filed by defendant No 1. It arises out of T. S. No. 33 of 1964 which was filed by the plaintiffs-respondents for a declaration that the defendants 1 and 2 have no right title or interest in suit 'A' schedule property, that the judgment of the. Supreme Court in 3 C A. No. 398 of 1962 is not binding on them and does not affect their interest in 'A' Schedule property and that the decree obtained by defendant No. 1 in T. S. No. 59 of 1953 is not executable against them.
Defendant No. I is also the appellant in M. A. No, 207/69. He obtained a decree for specific performance of contract in T. S. No. 59 of 1953 (T. S. No. 11 of 1952 S. J. C.) against defendant No. 2 and executed the same in Ex. Case No.78 of 1966 in the Court of the Subordinate Judge. Berhampur The plaintiff-respondents filed an application under Sections 47 and 151. C. P. G, objecting to the executability of the decree against them and their interest in the Schedule 'A' Property. That objection was registered as M. J. C. 1548 of 1966 in the Court of Sub Judge. Berhampur and has been allowed by order dated 16-8-1969 It is from this order that the defendant No. 1-- decree-holder has filed this Miscellaneous Appeal.
Thus, the subject matter of the two appeals being interconnected have been heard together and will be governed by this common judgment.
2. To understand the matter in controversy, it is necessary to set out the genealogy of the family of Gopinath Sahu to which the plaintiffs and defendants 2 and 3 belong.
Gopinath Sahu (died in 1943)
= Lalita (died on 13-7-55)
| | |
Ramchandra Rahasa Jamuna
(Son)D.2 (Daughter)P.1 (daughter)P.2
The schedule 'A' Property admittedly belonged to Gopinath Sahu. After Gopi-nath's death in the year 1943, Ram-chandra became the manager of the family and began to squander away the family property being addicted to immoral and bad habits. Lalita, widow of Gopinath and Ramchandra partitioned the properties of Gopinath Sahu under a registered partition deed dated 7-1-1952. Ex. 4. But sometime before this parti-tion that is to say on 21-2-1951 defendant No. 2 had entered into a contract with defendant No. 1 to sell the entire suit house for a consideration of Rs. 6.000/-. Defendant No. 1 thereafter instituted T. S. No. 11/52 in the Court of the Sub Judge, Berhampur for specific performance of contract. He impleaded defendant No. 2 and Lalita, widow of Gopinath Sahu as defendants. This suit having been transferred to the court of the Additional Sub Judge Berhampur was renumbered as T. S. No. 59 of 1953. The trial Court decreed the suit in respect of half of the Schedule 'A' Properties whereupon the defendant No. 1 preferred an appeal to this Court which was numbered as F. A. No. 57/53. During the pendency of the First Appeal, Lalita widow of Gopinath died on 13-7-1955. Defendant No. 1 filed a memo on 21-9-1955 in F. A. No. 57/53 that defendant No. 2 was the sole heir of deceased Lalita and consequenly no substitution was necessary. In result, an order was passed by this Court that the name of Lalita be expunged and that the appeal be prosecuted against defendant No. 2 only. F, A, No. 57/53 was dismissed on 7-1-1959. Thereupon defendant No. 1 filed an appeal in the Supreme Court which was numbered as S. C A No. 398 of 1962. The Supreme Court allowed the claim of defendant No. 1 in full, that is to say defendant No 1 got a full decree for specific performance of contract of sale in respect of the entire house on payment of the balance consideration within a period allowed by the Court. The plaintiffs, who are the daughters of Lalita filed the present suit claiming that property allotted to Lalita, their mother under a registered partition deed was her stridhana property and defendant No. 1 deliberately omitted to implead them in IT. A. No. 57/53 and also in the Supreme Court Appeal No 398 of 1962. In result, the Supreme Court judgment as not binding on them and does not affect their right, title and interest in Schedule 'A' property and the decree passed in T. S. No. 59/53 is not for the same reason executable against their interest. This is in substance the case of the plaintiffs.
3. Defendant No. 1 alone contested the suit His defence, inter alia was that the deed of partition was a collusive document brought into existence with a view to deprive him of half of the Schedule 'A' property and was never given effect to and that Lalita did not get any absolute interest in the property allotted to her in the partition deed and, as such, that property was not her stridhan property. Upon her death, defendant No. 2 and not the plaintiffs was her next heir to inherit her properties.
Defendants 2 and 3 supported the case of the plaintiffs.
4. The Trial Court decreed the suit on a finding that the registered partition deed between defendant No. 2 and Lalita was a bona fide transaction under which the properties were partitioned by metes and bounds and that the said partition deed was acted upon, that Lalita Sahuani got absolute title to the properties allotted in the partition inclusive of a moiety interest in Schedule 'A' property and, as such, it became her stridhana property. The agreement between defendant No. 1 and defendant No. 2 did not affect the share of Lalita in suit 'A' schedule property. That disputed property being the stridhana property of Lalita the plaintiffs, have acquired right, title and interest in the same, by inheritance, and since they were not impleaded in the previous litigation, they are not bound by the judgment of the Supreme Court nor by the decree in T. S. No. 59/53 and their right, title and interest in Schedule 'A' remained unaffected.
5. Mr. Sinha for the appellant has raised two questions and concedes that if both those questions are determined against his client both the aforesaid appeals are bound to fail. Those questions are:--
(1) Whether Lalita got absolute interest in the properties allotted to her under the registered partition deed and whether the plaintiffs are her heirs at law and are thus, entitled to inherit those properties upon her death?
(2) Even if it be held that the plaintiffs are the lawful heirs of Lalita to inherit her right, title and interest in Schedule 'A' property, whether defendant No. 2 can be said in the facts and circumstances of the case, to effectively represent the estate of Lalita in F. A. 57/52 and S. C. A. 398/62 so as to bind the plaintiffs by the ultimate decree passed by the Supreme Court which becomes the decree in the earlier suit.
6. I will now deal with the first question There is no controversy about the general proposition that a share allotted to a mother in a partition between her and sons will be enjoyed by I her as limited owner and that on her death it would pass not to her stridhana heirs but to the next heirs of her husband; This is the position in Hindu Law as prevailing immediately prior to the commencement of Hindu Succession Act, 1956.
7. The aforesaid Rule of Hindu Law is subject to an exception. Where under a deed of partition, or by agreement or under a compromise or family settlement an absolute estate is conferred upon a mother in the share allotted to her in the family partition, she takes the share as her stridhana. In the case of Debi Mangal Prasad Singh v. Mahadeo Prasad Singh (1912) 39 Ind App 121 it has been said
'of course the members of a joint family effecting a partition may agree that a portion of the property shall be transferred to the widow by way of absolute gift, as part of her stridhana, so as to constitute a provision for her stridhana heirs, but in the absence of any such intention, their Lordships do not feel justified in putting property acquired by a widow, on a partition of the joint estate, upon a footing different from that on which property coming to her by way of inheritance has been placed.'
In the case of Saheb Rai v. Shafiq Ahmad AIR 1927 PC 101, a share was given by the step sons to their step mother and the agreement provided that she was to be responsible for a definite share of the debts and their Lordships of the Privy Council, in these circumstances held that the stepmother took an absolute interest in the share allotted to her.
In the case of P. Adya Shankar Tewari v. Mt. Ghandrawat AIR 1934 Oudh 265 it was held that the ordinary presumption under Hindu Law that a female donee under a grant takes only a life's estate is not applicable where she is given properties under a compromise or a family settlement. The nature of her estate must be determined from, the terms of the deed, the circumstances under which the compromise is arrived at and the subsequent conduct of the parties.
In the case of Nathu Lal v. Babu Ram. AIR 1936 PC 103 a dispute between the widow and the male member was referred to arbitration and according to the decision of tihe arbitrator, the property was allotted to the widow with an absolute estate. Their Lordships of the Privy Council upheld this absolute estate,
In the case of Parshottam Bechardas v. Keshavlal Dalpatram AIR 1932 Bom 213 it was held hat the property obtained by a widow under 2 compromise with her adopted son is her absolute estate
8. The registered partition deed between Lalita and defendant No. 2 has been proved in this case as Ex. 4. Recitals of this deed show that previous to this partition there was dispute between defendant No. 2 and Lalita and ultimately the matters of dispute were referred to Arbitrator, who gave a decision and in accordance with that decision the partition deed was written out and registered. In para. 2 of this partition deed it has been recited that the properties allotted to Lalita shall be enjoyed by her from generation to generation with full and absolute power of disposition. This recital makes it quite clear that Lalita would be the absolute owner of the property allotted in her share. Thus the instant case is one to which exception to the general rule of presumption in Hindu Law, aforesaid, applies. I am therefore of opinion that j Lalita got absolute interest in tine property allotted to her under the registered partition deed.
9. Section 147 of the Mulla's Hindu Law (13th Edition) deals with the topic of succession to stridhana according to the Mitakshara. For the purpose of succession, the Mitakshara divides stridhana into two classes. The properties acquired by Lalita under the registered partition deed would fall into the 2nd category of stridhana namely, 'other kinds of stridhana'. According to the order of succession provided for this class of stridhana property, the daughter will be her next heir. The plaintiffs in T. S. No. 33/64 Who are the daughters of Lalita are entitled to inherit the latter's properties in preference to defendant No. 2. In the result the answer to the first question posed is that Lalita got absolute interest in the properties allotted in her share in the partition between her and her son, defendant No. 2. and that the plaintiffs are entitled to succeed to her interest upon her death.
10. The second question is whether the plaintiff's estate was sufficiently represented in F. A. No. 57/53. There is no controversy that upon death of Lalita in that First Appeal, no steps were taken by defendant No. 1. appellant there to substitute the plaintiffs as the legal representatives of the deceased Lalita, Normally a decision in a suit or appeal is binding upon the parties to such suit or appeal. The decision, however, would be binding on the legal representatives of the deceased party if there has been bona fide substitution of the deceased represented by some heirs but not the real heirs and there is no fraud or want of bona fide in the matter of substitution, and the estate of the deceased would be bound in the hands of the real heirs, This principle is some-times referred as the doctrine of representation of the estate. The doctrine has been stated by the Supreme Court in the case of N.K. Mohd. Sulaiman Sahib v. N.C. Mohd. Ismail Saheb, AIR 1966 SC 792 in the following words:
'Where on account of a bona fide error, the plaintiff seeking relief institutes 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 or collusion or other grounds which taint 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 the record. This principle is a part of the law of procedure which regulates all matters going to the remedy and applies to all parties irrespective of their personal law.
There is no difference in the principle in the case where a debtor who is sued for recovery of debt, dies after the institution of the suit and his legal representatives are brought on record and a case where the creditor, after making a diligent and a bona fide enquiry, impleads certain heirs as parties to his suit 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.'
Their Lordships of the Supreme Court in the aforesaid case laid down an exception to this principle in the following words:
'This rule will of course not apply to cases where there has been fraud or collusion between the creditor and the heir 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 in the earlier proceeding.'
11. In the instant case the plaintiffs had a special defence available t them in the earlier proceeding that is in F. A. No. 57/53 and S. C. A. No. 398 of 1962. That special defence was that Lalita had acquired an absolute interest in the share allotted to her in the registered partition deed and, accordingly, that estate would not be bound by any contract made by defendant No. 2 with defendant No. l. for the specific performance of which the earlier suit has been instituted by the latter. This defence was not and could not be put forth by defendant No. 2 as such a defence would be destructive of his own claim. In the circumstances, the doctrine of representation of the estate would not apply and the decree passed by the Supreme Court in S. C. A. No. 398 of 1962 will not be binding upon the plaintiffs as they were not parties to those proceedings. Defendant No, 2 cannot be said to effectively represent the estate of Lalita comprised in Schedule A property in the previous suit and in the proceedings arising out of that suit upto Supreme Court stage, so as to bind the plaintiffs by ultimate decree passed in that suit.
12. In view of the answers given above to the two questions raised by Mr. Sinha, the decision of the trial court in T. S. No. 33 of 1964 and the decision given by the executing court in Ex. Case No. 78 of 1966 must be held to be right. In the result, therefore, both the appeals fail and are dismissed.
13. It will be however, made clear that the execution case instituted by the appellants for execution and registration of the sale deed in respect of half interest in schedule A properties belonging to the plaintiffs as heirs of Lalita must stand dismissed as inexecutable but the execution for costs about which the executing court has said nothing in the order appealed from, must proceed. The appeals are dismissed with costs.