P.T. Raman Nayar, J.
1. In the year 1110 M. E. (1934-35 A. D.) one Kochana, the predecessor of the present plaintiffs, mortgaged the property now in suit and other property to Peter, the predecessor of the present defendants. Kochana died two years later leaving as his heirs his two widows and 11 children. One of these children, Mohammed by name, died, according to the plaintiffs on 13-3-1946, and that case is no longer disputed by the defendants, Shortly thereafter, on 4-3-1947, the mortgagee, Peter, brought O. S. No. 681 of 1122 for the recovery of the money due under the mortgage by sale of the mortgaged property. He was then apparently unaware of Mohammed's death, and he brought the suit against the two widows and 11 children of the mortgagor, Kochana (and certain alienees of the mortgaged property) as if Mohammed was still alive. Ex. P-1, the summons issued to Mohammed was returned with the endorsement that Mohammed was dead. Yet, no steps were taken to bring his legal representatives on record. Among his heirs, his mother, brothers and sisters were already party defendants, but his widow and daughter, the present plaintiffs 3 and 4 -- the defendants no longer dispute that they are his widow and daughter -- were not, and, by some mistake, Mohammed, who was named as the 3rd defendant in the plaint, was declared ex parte and the suit proceeded with as if he was alive. The remaining heirs of Kochana suffered the suit to proceed ex parte and the decree for sale was passed in the mortgagee. Peter's favour on 1-4-1949. In execution of that decree, the property now in suit (two pieces of land each four cents in extent) was brought to sale and bought by Peter himself. The sale was confirmed on 2-2-1951, and Peter obtained delivery on 23-6-1951 under the delivery kychit, Ext. D2. Peter died in 1954 leaving his widow and son, the present defendants, as his heirs,
2. The present suit was brought in July 1956, by the heirs of Kochana and of his son, Mohammed, all of whom (or whose predecessors) with the exception of plaintiffs 3 and 4, the widow and daughter of Mohammed, were party defendants in the former suit. The plaintiffs alleged that the summonses and notices in the mortgage suit and the execution proceedings therein were not really served on the parties thereto and that false returns of service were made. According to them, the decree and the proceedings in execution were vitiated by fraud, of which they became aware only shortly before the suit, and Peter's Court purchase conveyed no title to him. They further alleged that Peter did not actually obtain delivery, the so-called delivery under Ext. D2 being a sham transaction, and that the 3rd plaintiff was in actual possession of the property, presumably on behalf of all of them. On these averments, they asked for a decree setting aside the mortgage decree and the execution proceedings pursuant thereto, and giving them a declaration of their title to and possession of the property, and an injunction to protect that possession. In the event of it being found that they were not in possession, they asked for recovery of possession with mesne profits.
3. The plaintiffs' case of fraud, with regard to the service of summons and notice in the mortgage suit and the execution proceedings therein, found favour with neither Court but, the Lower Appellate Court took the view that, in proceeding with the mortgage suit against Mohammed ex parte as if he was alive, Peter, the plaintiff therein, was guilty of fraud, fraud not merely against the heirs of Mohammed but against all the defendants in the mortgage suit, even those who had been duly served with summons! The first Court was not satisfied that plaintiffs 3 and 4 were, as they claimed to be the widow and daughter of Mohammed. In this view which meant, that all the heirs of the mortgagor. Kochana and his son, Mohammed were party defendants in the mortgage suit and had been duly served with summons, it dismissed the present suit. The Lower Appellate Court, however, found that plaintiffs 3 and 4 were the widow and daughter of Mohammed; and that finding, as Ihave already observed, is no longer disputed. It agreed with the trial Court that Peter actually took possession of the property on 22-6-1951 under Ext. D2 and that he, and after him, his heirs were in possession. But, in the view it took that the decree and execution proceedings in the mortgage suit were completely vitiated by fraud, it gave the plaintiffs a decree for possession. In so doing it placed reliance on the Full Bench decision of this Court in Kamakshi Amma v. Gangadharan Pillai, 1953 Ker LT 706= (AIR 1954 Trav-Co 60) (FB). And it did not even consider the plea of limitation raised by the defendants -- after the actual delivery to Peter on 23-6-1951 (which it found) the plaintiffs could scarcely have been unaware of the alleged fraud.
4. Kochana was a Muslim, and, when a Muslim dies, his heirs take his property in severally as tenants-in-common. The heirs of Kochana had several, though undivided, shares in the property and it is rather difficult to understand how, assuming that the decree against one of them was void in that it was obtained against a man who was dead even at the time the suit was instituted, or because it was obtained by fraud, the decree is bad as against the rest. The decision relied upon by the Court below, namely, 1953 Ker LT 706=(AIR 1954 Trav-Co 60) (FB) has no application whatsoever, for, that decision dealt with a case where a decree had been obtained in respect of property belonging to a Nayar tarwad otherwise than in accordance with Section 31 of the Nayar Act. And all that was held, in the very terms of the statute, was that the decree was not binding on the tarwad. The decision can have no bearing on a case like the present where a decree obtained against several tenants-in-common is bad as against one of them. That can in no way affect its validity so far as the others are concerned. The decree, if it is bad at all, can be bad only as against Mohammed's separate 7/72 share of the mortgaged property.
5. It Is urged on behalf of the appellant defendants that although Mohammed, one of the 13 heirs of the mortgagor, Kochana. was dead when the mortgage suit was brought, the remaining 12 being party defendants duly served with summons, the decree can be supported in entirety on the theory of substantial representation, the heirs who were actually parties to the suit substantially representing the entire estate of the mortgagor. Kochana. including the interest of the heirs who were not parties. For the respondent plaintiffs it is contended that the theory of substantial representation can be invoked only when a defendant dies pending suit and the suit is proceededwith some but not all Ms legal representatives on the party array. It has no application when a suit is brought for the recovery of money due from a person who is dead from out of his assets in the hands of his legal representatives, for, in such a suit, the decree can only be for recovery from the hands of the legal representatives who are parties to the suit and not from the hands of those who are not parties thereto. Moreover, unlike a suit for recovery of a simple money debt, a suit brought to enforce a mortgage executed by a person who is dead is not a suit against his estate. It is a suit brought against the present owners of the mortgaged property to enforce the transfer effected by the mortgage, in other words, to enforce the right to bring the property to sale for recovery of the debt, and it makes no difference whether the present owners got the property by transfer inter vivos or by succession. In either case, the suit is against the property in the hands of the present owners. They are sued in their own right and in no sense as the representatives of the old mortgagor. It would be different if a mortgagor defendant dies pending suit. For, there, by the fiction that an adjudication relates back to the date of the institution of the suit it is as if the dead man were still alive in the shape of his legal representatives, and the theory of substantial representation comes into play in case only some but not all his legal representatives are brought on record.
6. I confess that I was at first blush favourably impressed by this argument advanced on behalf oE the defendants, but I think the decision in Mohd. Sulaiman v. Mohd. Ismail. AIR 1966 SC 792 provides a complete answer to it. There, one of the three original mortgagors was dead when the suit was brought. The suit was brought against the two mortgagors who were alive and some, but not all, the heirs of the deceased mortgagor. The Supreme Court, invoking the principle of substantial representation, upheld the mortgage decree and the sale pursuant thereto, in the subsequent suit brought by the heirs who had been omitted. That, as I have said, is a complete answer.
7. Nevertheless, it seems to me that the present defendants are not entitled to the benefit of the principle of substantial representation, for, as the Supreme Court decision just referred to recognises, the first requisite for the application of that principle is that the omission to bring all the heirs on the party array was a bona fide error due to want of information, despite diligent inquiry, regarding the existence of the omitted heirs. In the present case, as we have already seen, there was a return of the summons issued to Mohammed inmortgage suit with the endorsement that he was dead. This, surely, should have put Peter, the plaintiff therein, on notice of Mohammed's death, and. therefore, it can scarcely be said that his proceeding with the suit as if Mohammed were alive was bona fide.
8. This being so. the mortgage decree cannot be supported as against such of the owners of the mortgaged property as were not parties to the mortgage suit. It follows that the mortgage decree and the sale pursuant thereto are not binding on plaintiffs 3 and 4 who were co-owners of the mortgaged property but were not parties to the mortgage suit. For the rest, the decree and the execution sale are clearly valid and binding.
9. In the result, I allow this appealby the defendants in part. Plaintiffs 3and 4 will have a declaration of title to a105/1728 share (which it is agreed byboth sides, is their due share) of the property in suit. (The plea of limitationtaken at the trial has not been pressedbefore me, possibly because the defendants, as the purchasers of the shares ofall the co-owners except plaintiffs 3 and4, are co-owners with those plaintiffs).That is the only relief that the plaintiffcan be given in this suit. For the rest,their suit is dismissed and they will paythe costs of the defendants here as wellas in the Courts below.