S.K. Ray, J.
1. This is a plaintiffs second appeal against the reversing judgment dated 31-3-64 passed by Sri G. Panda, Additional Subordinate Judge in Title Appeal No, 39/64 (T. A. No. 119/61 G. D. C.).
2. The plaintiff filed Title Suit No. 2/59 in the Court of Munsif, Aska, for declaration of right, title and interest in respect of 10 Bharanams of suit-land fully described in the plaint schedule and for an injunction restraining the defendant from taking delivery of possession of the same in execution of the decree passed in T. M. S. No. 158/50 of the court of Munsif. Aska. or in the alternative for recovery of possession of the same, if it is found that the suit-lands have been delivered to the defendant on 9-12-58 in pursuance of the execution of the decree in T. M. S. No. 158/50.
3. Originally there wore 1.2 items of property enumerated, in the plaint, schedule. The defendant joined issue only with regard to items 1, 6, 7 and 8 of the schedule covered by survey Nos. 945 and 557 comprising an area of 2.15 Bharanams. Accordingly the decree of the Munsif in regard to other items of property viz., items 2 to 5 and 9 to 12 declaring the plaintiff's title and restraining the defendant from interfering with his possession Is no longer in dispute and therefore would stand.
4. According to the plaintiff the suit-properties were sold by the original owner to one Markanda Misra by a registered sale-deed, Ex. 1 dated 9-3-18. The vendee in his turn sold the same to the plaintiff's father by another registered sale-deed, Ext. 2, dated 27-6-27. His father thereupon possessed the land. It is in evidence and is no longer in dispute that the plaintiff's father died in the year 1940-41 when the plaintiff was a minor. In view of the admission that his age was 20 years on the 2nd January, 1959, he would obviously be aged two years' old in the year 1941, when his father died. Then the joint family comprised of himself and his mother. Before transfer of the suit-property by the original owner in favour of the vendor of the plaintiff's father in the year 1918, under Ext. 1, he had mortgaged the same with possession under Ext. C dated 25-9-1909 to one Baishnab Padhan. The mortgagor subsequently transferred the equity of redemption in favour of the defendant on 10-8-28.
On the basis of equitable redemption so acquired the defendant filed T. M. S. No. 158/50 in the court of Munsif of Aska, for redemption in respect of the four items of property, viz., 1, 6, 7 and 8 and other lands. The suit was ultimately decreed and the defendant started execution of the same in E. P. No. 381/52. In due course, as already stated, the defendant got possession of the four items of property, viz., 1, 6, 7 and 8 and other lands on 9-12-58. The plaintiff's mother was impleaded in this redemption suit as defendant No. 10, in her own name without indicating whether she was there in her personal capacity or as a member of the joint family comprising herself and her minor son.
On this redemption suit being decreed, an appeal was carried to the first appellate court by some of the defendants of whom defendant 10, the mother of the plaintiff, was one. The appeal failed and thereafter the matter was carried in second appeal to the High Court. Here also the decree of the trial court was upheld. This second appeal was disposed of on 31-7-58. In the execution proceedings in E. P. No. 381/52, the plaintiff's mother was also a party and she died during the pendency of this execution proceeding whereupon the plaintiff was impleaded as her heir. The execution proceedings terminated and the defendant was given possession on 9-12-58. Therefore, the plaintiff filed the present suit (T. S. No. 2/59) on 19-1-59 for the reliefs above stated.
5. The defendant's case, in short, is that the plaintiff's mother represented the estate of the joint family comprising herself and her minor son. In the mortgage-suit (T. M. S. No. 158/50) even though she was impleaded eo nomine, there cannot be any question that she represented the entire estate. She was also impleaded in the execution proceedings and upon her death the present plaintiff was substituted. The plaintiff upon substitution, does not appear to have raised any objection to the execution proceedings as raised here that the decree in the mortgage-suit does not bind him, he being not a party to it.
6. At one time In course of this litigation the plaintiff raised an issue that the suit-land does not form the subject-matter of the mortgage. That contention appears to have been given up in the lower appellate court. From para 5 of the judgment of the lower appellate Court, it appears that this issue was not further agitated. It is accepted that the suit-properties viz., the four items of property claimed by the defendant did form the subject-matter of the mortgage and also of the mortgage-suit. For the purposes of the present appeal, it is now accepted by both parties that these four items claimed by the defendant were conveyed in the manner alleged by the plaintiff to his father and upon the latter's death, were inherited by him and his mother jointly.
It was also conceded that the mother would get moiety interest by way of inheritance as a legal heir under the Hindu Women's Rights to Property Act as amended by Orissa Act. In view of this legal position that the plaintiff's mother is entitled to a moiety interest in the suit-property, her interest would be bound by the decree passed in the mortgage-suit. Therefore, if the plaintiff succeeds in this appeal, it would be only to the extent of his moiety interest in the suit-property.
7. The defendant in para 4 of his written statement specifically avers that the plaintiff's mother represented the estate as the manager of the joint family comprising herself and her son and she contested the redemption suit representing the entire family. The defendant as D. W. 1 in the suit categorically states that he did not implead the plaintiff in the mortgage-suit as he did not know of his existence at the time. He came to know of him during the execution proceedings. So when the plaintiff's mother died, he substituted the plaintiff in that proceeding. By this evidence, the defendant intends to show that he impleaded the plaintiff's mother alone in the redemption suit bona fide believing that she was the only member available to represent her husband's estate, and that there was no collusion or fraud on his part in omitting to implead the plaintiff.
It is conceded by learned counsel for the plaintiff that his mother is the natural guardian in law. She was not a stranger to the property, nor had any interest adverse to that of her son. There is no gainsaying the fact that she was the joint owner of the property with her son and her interest apparently was not adverse to the latter.
8. The judgments of the trial court and the first appellate court in the redemption suit have been exhibited here as Exts. A and B. It appears therefrom that the plaintiff's mother filed a written statement adopting that of defendant 11 in which all defences available to her then were taken and the issues were joined thereon. When the redemption suit succeeded she was one of the appellants and contested the redemption suit in appeal. It is argued by learned counsel for the appellant that the plaintiff's mother did not claim any title in the redemption suit, nor did she produce any title-deeds nor the cist receipts in proof of her title all of which indicate that she did not fairly and honestly contest the suit.
But on going through Exts. A and B, I find that these contentions have got no substance, in so far as her claim of title is concerned. The defence of defendant 10 the mother of the plaintiff in the redemption suit was the same as that of her co-defendants 2 and 11. and evidence was adduced by those two defendants and when they fought the same issues as interested her and adduced evidence in regard thereto, there was no point in duplicating the same. Having regard to the present stand of the plaintiff that the defendant had in fact purchased the equity of redemption in the four items of property claimed by him, the criticism that the plaintiff's mother did not produce the title-deeds or the cist receipts in the redemption suit is not of much significance. In view of the aforesaid facts, either admitted or proved, the plaintiff's contention that the mother did not put up a fight in the redemption suit and that there was therefore no fair trial so far as his interest and his mother's interest are concerned, cannot be sustained.
9. It is now appropriate to refer to the law relating to the principles of representation of an estate according to which the decree passed in an action binds also persons having some interest in the estate, but not parties to the action, in certain circumstances. In the light of those principles, if it is concluded that the plaintiff's estate had been sufficiently represented in the redemption suit, the present suit must fail. If. on the other-hand, it is found that the estate comprising his interest was not represented fully and substantially, then he being not a party to that suit, could not be bound by that decree and that his right to recover his interest in the property in the present suit must succeed. This principle has been discussed in a decision of the Supreme Court reported in AIR 1966 SC 792, Mohammed Sulaiman v. Mohammed Ismail wherein the previous decisions of that Court as well as of other High Courts have been noticed. The relevant passage on the point is quoted herein below :
'Ordinarily the Court does not regard; a decree binding upon a person who was; not impleaded eo nomine in the action.1 But to that 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 larger 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, but which was not put forward. Where however 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 ground 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.....'
The defendant in the redemption suit impleaded the plaintiff's mother bona fide believing that she was the only heir to her husband. He says that he was not aware of the plaintiff's existence. There is nothing to discredit that statement of the defendant. The plaintiff was admittedly a minor in the year 1950 when the redemption suit was instituted. Even if the minor was impleaded he should have been impleaded under the guardianship of his mother. If any fight was to be put up on his behalf, it should have been by the mother. It is not the plaintiff's case nor is there any evidence that there was a partition by metes and bounds between the plaintiff and his mother in the year 1950 whan the redemption suit was filed the estate being joint, the mother was obviously in possession of the estate both in respect of her interest as well as of her son. There is no evidence, nor any suggestion that the mother's interest at the time was on any ground adverse to that of the plaintiff or she in any manner acted adversely to his interest in course of that litigation. The plaintiff does not urge that the decree in the redemption suit was obtained by fraud, collusion or in any other means intended to overreach the court and that the court was invited to decide those questions of sharp practice.
I have already indicated that the mother really put up a contest in the redemption suit. Being a lady she joined hands with some male defendants in that suit and advanced all manner of defences possible. She did not lag behind to appeal against the trial court's decision. Nothing has been shown in this case that the plaintiff's mother omitted to advance any special defence which was open to the plaintiff at the time of redemption suit, but was not actually put forth. In other words, no circumstances have been proved in this case by way of indicating that there has not been a fair or real trial or that the plaintiff had any special defence which she had not or could not put forward in course of the redemption suit
10. The plaintiff has tried to make out a case at the trial stage that during his minority upon the death of his father, though his mother was his natural guardian, his uncle-in-law who is P. W. 3 was factually looking after the properties. This case does not find a place in his pleadings. In view of the law as regards representation of the estate this is normally to be regarded as a very important fact to be stated in the pleadings. Omission of such a fact in the pleadings discredits any evidence to the contrary adduced at the trial That apart, such a case is difficult to believe because the properties which were being looked after by the so-called uncle-in-law of the plain tiff comprises half of the interest of the mother and it is most unlikely that she would willingly concede to her interest In the property being dealt with by a stranger. There is nothing in evidence to indicate that she was Incapable of dealing with the property. On the contrary, she has demonstrated her capabilities by contesting the suit effectively at the appellate stage by filing an appeal. Therefore, this case of uncle-in-law being the de facto guardian of the plaintiff during his minority cannot be accepted. I am, thus, in agreement with the lower appellate Court that the plaintiff's mother was the natural guardian of her minor son in de facto management of the minor's property till her death. In view of these facts and the circumstances the principles of representation as laid down by the decision of the Supreme Court in AIR 1966 SC 792 are fully applicable. The Lower Appellate Court is therefore justifi-ed in holding that the plaintiff is bouno by the decree in the redemption suit. In reaching that conclusion the lower appellate court has also proceeded on theory that the plaintiff's mother being the Karta of the joint family comprising herself and the plaintiff was competent to manage and represent the estate for all legal purposes. It is true as argued by learned counsel for the appellant that the lower appellate Court was in error in accepting the theory of female Kartaship of a joint Hindu undivided family and the decision of the Nagpur High Court reported in AIR 1947 Nag 178 on which reliance is placed in its support is no longer good law. It is now well settled that a widow cannot be a Karta of a joint family. The decision of the Supreme Court in AIR 1966 SC 24, Commr. of Income Tax, Madhya Pradesh v. Seth Govindram. Sugar Mills on the point runs as follows :
'Under the Hindu Law coparcener-ship is a necessary qualification for the managership of a joint Hindu family. A widow is not a coparcener, she has no legal qualification to become the manager of a joint Hindu family. A widow of a coparcener cannot, therefore, be a Karta of the joint Hindu family consisting of three widows and two minors.'
While so holding the Supreme Court has overruled the decision in AIR 1947 Nag. 178. Despite this error he is correct in his ultimate conclusion that the plaintiff's mother in her capacity as natural guardian of her minor son was managing the joint family properties comprising the minor's interest as well as her own, and as such, she was in a position to represent the entire estate both of herself and of her minor son and in fact did so in the redemption suit, until possession was wrested from her by the defendant in the execution proceeding.
11. In these circumstances and in view of the legal position it must be held that the plaintiff is bound by the decree in the redemption suit his mother having represented the estate fully and sufficiently.
In the result, therefore, there Is no merit in this appeal and it must be dismissed. The appellant shall pay the costs of this appeal to the respondent.