1. Plaintiff, as the assignee of a mortgage executed, by 1st defendant's father Kadir Lavvai, brought O.S. No. 540 of 1894 against Kadir Lavvai to enforce the mortgage by-sale. During the pendency of the suit and before the passing of the decree Kadir Lavvai died and the name of his son, the 1st defendant, was on plaintiff's application entered on the record as legal representative in place of the deceased defendant under Section 368 of the Civil Procedure Code. Subsequently on the 20th December 1899, a decree was passed ex parte against the 1st defendant as legal representative of the deceased defendant directing the sale of the mortgaged property. Plaintiff purchased the property at the sale held on the 7th September 1897, in execution of the decree and the sale was confirmed on the 8th November 1897. After obtaining the usual certificate of sale which purported to convey to the plaintiff the whole of the mortgaged property, as it must be assumed, as that of the deceased defendant, the mortgagor, he obtained delivery of the same under Section 318 of the Civil Procedure Code on the 18th February 1898. He was subsequently dispossessed by defendants 2 to 5 at the instigation, as is alleged, of the 1st defendant. Hence this suit which was instituted on the 22nd July 1898.
2. It is admitted that Kadir Lavvai left three sons and two daughters, of whom 1st defendant was the eldest, and that none but the 1st defendant were joined as the legal representatives of the deceased Kadir Lavvai in O.S. No. 540. It is found by both the courts that subsequent to the decree in the above suit, Mohamed Moideen, the 2nd son of Kadir Lavvai, was assessed to income-tax, and that for arrears of tax due by him, the mortgaged property was sold under the Revenue Recovery Act and purchased by the 2nd defendant on the 15th July 1896. The decree in O.S. No. 540 is not impeached as having been obtained by fraud or collusion. Both the courts below have decreed the plaintiff's claim.
3. Second defendant appeals against the decree, and the only points ruged before us in support of the appeal are that the decree in O.S. 540 can at the most only bind 1st defendant's share in the mortgaged property, and that it will not affect the shares of the other heirs of Kadir Lavvai as they were not made parties to it, and that the sale of the mortgaged property under the Revenue Recovery Act for realising arrears of income-tax will vest the same in the 2nd defendant, the purchaser, free of the mortgage encumbrance,, at any rate so far as the share of Mohamed Moideen is concerned.
4. It will be convenient to consider the latter contention first. Mohamed Moideen was not assessed to income-tax as representing all the heirs of Kadir Lavvai in respect of income derived by or for all of thorn, but was assessed for income derived by him individually or, it may be, in partnership with two strangers with whom he carried on trade. Under Section 30 of the Income-tax Act (II of 1886) the Collector may, in default of payment of the tax recover the amount as if it were arrears of land revenue or by any process applicable to the recovery of a Municipal or Local tax, or may pass an order for recovery of the amount from the defaulter, which order may be executed as a decree for payment of money passed under the Code of Civil Procedure. The defaulter, Mohamed Moideen, had a several share in the mortgaged property as one of the heirs of Kadir Lavvai and that alone could legally have been proceeded against for the recovery of the tax payable by him. In the present case the Collector proceeded to recover the amount under Act II of 1864, as if it were an arrear of land revenue, and the sale can affect only the defaulter's property, i.e., his share in the mortgaged property and not the shares of the other co-heirs. The contention that the whole of the mortgaged property would pass to the 2nd defendant under such sale is, therefore, manifestly untenable.
5. The next question is whether under such sale the share of Mohamed Moideen would pass to the 2nd defendant free of the mortgage encumbrance which was affirmed by the decree in O.S. No. 540 of 1894, as if the income-tax due by Mohamed Moideen were revenue which accrued due in respect of the land forming his share in the mortgaged property, in which case under Section 2 of Act II of 1864 the land, the buildings upon it, and its products form the security for the public revenue. We are clearly of opinion that Section 30 of the Income-tax Act, has not the effect of converting income-tax into an arrear of land revenue due in respect of the land which may be brought to sale for realisation of the income-tax, but that its effect simply is to extend the procedure prescribed by (Madras) Act II of 1864 and (India) Act I of 1890 for the recovery of arrears of income-tax.
6. The decision of this Court in Ramachandra v. Pitchaikanni I.L.R. 7 M. 434 which relates to a sale under Act II of 1864 for arrears of Abkari revenue due under Act III of 1864, and the reasoning on which the decision proceeds are equally applicable to a sale under Act II off1864, for arrears of income-tax. The difference in the wording between the corresponding sections of the Income-tax Act and Abkari Act is merely verbal.
7. In our opinion, therefore, the second defendant by his purchase acquired only the equity of redemption in respect of Mohamed Moideen's share in the mortgaged property, and this leads to the consideration of the two questions involved in the 1st contention, viz., whether the decree in O.S. No. 540 of 1894 will bind such share notwithstanding that Mohamed Moideen was not joined in the suit as one of the legal representatives of Kadir Lavvai, and whether, if it mo binds, the sale in execution thereof which took place subsequent to the 2nd defendant's purchase in the revenue sale would extinguish his equity of redemption, notwithstanding that he was made no party to the execution proceedings.
8. As already stated, on the application of the plaintiff, the 1st defendant's name was entered on the record in the place of the deceased defendant as his legal representative. He raised no objection that he was not the, or the sole, legal representative of the deceased defendant, and that there were others who ought also to be joined, nor did Mohamed Moideen or any of the other co-heirs apply, as they might, under the last paragraph of Section 368 of the Civil Procedure Code (as amended) to have his or their names joined as legal representatives in place of the deceased defendant. In our opinion, a person whom the plaintiff alleges to be the legal representative of the deceased defendant, and whose name the court enters on the record in the place of such defendant, sufficiently represents the estate of the deceased for the purposes of the suit, and in the absence of any fraud or collusion the decree passed in such suit will bind such estate. It will of course be open to any other person who is or claims to be the legal representative or one of the legal representatives of the deceased defendant to apply to have his name also entered on the record as a legal representative in the place of the deceased defendant. Even before Section 368 of the Civil Procedure Code was amended to this effect, such course was adopted in Athiappa v. Ayanna I.L.R. 8 M. 300. If this were not the law, it will in no few cases be practically impossible to secure a complete representation of a party dying pending a suit, and it will be specially so in the case of a Mahometan party; and there can be no hardship in a provision of law by which a party dying during the pendency of a suit is fully represented for the purpose of the suit, but that only for that purpose, by a person whose name is entered on the record in place of the deceased party under Sections 365, 367 and 368 of the Civil Procedure Code, though such person may be only one of several legal representatives or may not be the true legal representative. If the true legal representative or all the legal representatives do not intervene, it can be due only to his or their laches. This is the principle of representation which obtains under the English Law when it is necessary the t the representative of a person deceased be made a party to a pending suit, and that principle is reproduced in Section 38 of the (Indian) Probate and Administration Act. A person prosecuting or defending a suit as the legal representative of a deceased party will of course be accountable to others who like himself are also the legal representatives of the deceased or to the true legal representative as the case may be.
9. Among the heirs of Kadir Lavvai none but the 1st defendant who has not put in an appearance in this suit and Mohamed Moideen as represented by the 2nd defendant, the assignee of his share, are parties to this suit. It is unnecessary to consider and reconcile the cases referred to in the judgments of the lower courts, which, with a few additional cases, were also cited in the argument before us. With the exception perhaps of the The General Manager of The Raj Durbhanga v. Maharaja Cornar Ramaput Sing 14 M.I.A. 605 they are all cases in which the debtor died before the suit and the suit was brought against only one or two of his representatives excluding the others or against a person who was not the true representative and not as here, in which the suit was brought against the debtor himself.
10. In the The General Manager of The Raj Durbhanga v. Maharaja Comar Ramaput Singh 14 M.I.A. 605 it is not clear whether one of the two suits for rent due by the deceased was brought against himself and his widow joined as gal representative on his death pending suit, or the suit itself was brought against her as his legal representative. It would appear from the head note that the former was the case, but it does not appear clearly from the report of the case that it was so. The Judicial Committee of the Privy Council held that though the deceased left him surviving a son, who must be taken to be his legal representative and not the widow, yet the sale in elocution of the decree in that suit was not of the widow's personal interest; but of that of the representative of her deceased husband, notwithstanding that the suit was not brought or continued against the son who in law was the true legal representative of the deceased.
11. The cases of Bhikhaji Ramchandra v. Purshotam I.L.R. 10 B. 220 Ghamandi Lal v. Amir Begum I.L.R. 16 A 211 and Musala Reddi v. Ramayya I.L.R. 23 M. 125 relate to the question of the abatement of an appeal when the appellant died pending the appeal, and his legal representatives were not all brought on the record within the period of limitation and those cases have no direct bearing upon the question now under consideration.
12. The only point which remains to be considered is whether the 2nd defendant's equity of redemption in respect of Mohamed Moideen's share was extinguished by the sale in execution of the decree in O.S. No. 540 of 1894, and this depends upon the application of the law of 'Lis pendens' to an involuntary sale in execution proceedings of the judgment debtor's interest in the property affected by the decree. If Mohamed Moideen had actually been a party to the decree, could the 2nd defendant assert ' his equity of redemption and seek to redeem Mahomed Moideen's share notwithstanding the sale in favor of the plaintiff in execution of the decree in O.S. No. 540. This question is concluded against the appellant by the decision of this Court in Kunhi Umah v. Amed 14 I.L.R. 14 and the other decisions therein cited. As observed by the learned judges in that case, the 2nd defendant, after ho became the purchaser in the revenue sale of the equity of redemption pending execution of the mortgage decree 'ought to have paid the amount under the mortgage decree and prevented the sale in execution in the same way m which the mortgagors might have done.' It can in principle make no difference whether Mohamed Moideen was actually a party on record or was sufficiently represented by the 1st defendant. If the 2nd defendant had been a purchaser at a revenue sale for arrears of land revenue which accrued due in respect of the land purchased by him, the case would be quite different and the doctrine of 'Lis pendens' would not apply, for, in that case the revenue sale would be in enforcement of a right of the Crown paramount to the mortgage right sought to be enforced by the decree of the Civil Court, and not simply of the right, title and interest of the defaulter as in the case of a sale for arrears of income-tax. A purchaser in a revenue sale is a voluntary purchaser and as such is affected by the doctrine of Lis pendens and is not an assignee 'in invitum' like the Official Assignee who is not affected by the doctrine of Lis pendents Wood v. Surr 19 Beav. 551 O.S. Ap. No. 2 of 1901 not yet reported See I.L.R. 25 M. 406.
13. The second appeal, therefore, fails and is dismissed with costs.