1. The property in dispute belonged to one Addanki Naganna. He first mortgaged it to the father of defendants Nos. 3 and 4 and subsequently to the plaintiff. The father of defendants Nos. 3 and 4 brought a suit on his mortgage against Naganna, the mortgagor (Suit No. 486 of 1897). Plaintiff was not a party to ttiat-suit. During the pendency of the suit Naganna died. The suit was continued against one Saryanarayanamurthy, the divided brother's son of the deceased Naganna. The 1st defendant is the daughter of Naganna. But she was not made a party to the suit after her father's death. A decree was obtained by the father of defendants Nos. 3 and 4 against Suryanarayanamurthy, and in execution of that decree, the equity of redemption in the property was purchased by the father of defendants; Nos. 3 and 4. The 7th defendant's deceased father purchased it from, the, father of defendents Nos. 3 and 4 and has been in possession. The case for the plaintiff is that the decree obtained in the previous suit did not bind the first defendant, who alone was competent to represent her father, and that consequently the sale of the equity of redemption behind her back cannot bind either 1st defendant or the plaintiff. It, may be stated here that the 2nd defendant, is the widow of Suryanarayanamurthy, who was impleaded in the previous suit as the legal representative of the deceased Naganna. The Subordinate Judge came to the conclusion that the decree in favour of the, father of defendants Nos. 3 and 4 and the sale thereunder are not binding upon either the plaintiff or the first defendant, and consequently gave a decree to the plaintiff for sale of the properties.
2. The main contention raised in second appeal by Mr. Narasimha Rao is, that, as Suryanarayanamurthy was honestly impleaded as the legal representative of the deceased, Naganna, the decree obtained in that suit is binding upon the plaintiff and 1st defendant. He, therefore, asks that his client should be allowed to redeem the plaint mortgage. Prima facie ho decree can be binding against a person who has not been represented in the suit. To this well-known principle there are exceptions. In the, first place, as pointed out by Mr. Ramesam, if a decree has been legally obtained against, the proper person, it may be permissible in, execution proceedings to implead a person, as the legal representative and to carry on execution as against him although he is not the real representative of the deceased judgment-debtor. Of course the decree-holder must act honestly in selecting the legal representative. There must be due care and caution and Want ot mala jwZes. This was laid down by the Judicial Committee in Malkarjun v. Narhari 25 B.p 337 : 2 Bom. L.R. 927 : 5 C.W.N. 10 and has been followed in all the High Courts. Ramasawmi Chettiar v. Oppilamam Chetti 4 Ind. Cas. 1059 : 19 M.L.J. 671 has applied that principle in this Presidency. That was a case where after decree one of several persons who was entitled to represent the deceased judgment-debtor was brought on the record. It was held that such a person for all practical purposes fully represented the judgment-debtor. In the case of Gnanambal Animal v. Veerasami Chetty 31 Ind. Cas. 920 : 29 M.L.J. 698 the widow was brought in as the legal representative. Under the enlarged definition of 'legal representative' to be found in the Civil Procedure Code of 1908 a person in possession of the estate belonging to the deceased is competent to represent the deceased defendant. The decision in Kaliappan Servai Karan v. Varadarajulu 3 Ind. Cas. 737 : 33 M.P 75 : 6 M.L.T. 199 : 19 M.L.J. 651 was also in execution.
3. There is another class of cases which is typified by Kadir Mohideen Marakhayar v. Muthuhrishna Ayyar 26 M.K 230 : 12 M.L.J. 368, where the suit is brought against a proper defendant and after his death only some of the legal representatives are brought on the record, a decree given against such representatives would bind the others similarly situated. This position may be justified upon the analogy of Section 11, explanation 6, Civil Procedure Code. The principle is that if there is on the record some person who is interested in defending the suit, the fact that that person does not completely represent the deceased is not a ground for holding that the decree is not properly obtained. Some observations in Kadir Mohideen Marahkayar v. Muthuhrishna Ayyar 26 M.K 230 : 12 M.L.J. 368 were relied upon as indicating that all that is required is that the plaintiff should act honestly in choosing any person as the legal representative of the deceased defendant and that so long as mala fides cannot be imputed to him, the decree obtained against the person whom he brings in would bind all the parties really entitled to the estate. The judgment must be read with reference to the facts decided and we are against allowing stray sentences to be detached from their context and to read into them a meaning which the judgment as a whole does not bear. The proposition contended for by Mr. Narasimha Rao would lead to this startling: result, that a suit can be prosecuted successfully against a person who has absolutely no interest in the property which is the subject-matter of the suit and so long as the plaintiff has acted honestly the person who is really entitled to the estate will be bound by the decrees obtained in the suit. As pointed out by the learned Judge of the Allahabad High Court in Debi Singh v. Jia Ram 25 A.p 214 : A.W.N. (1903) 21 a result like this could not have been in the contemplation of the Legislature. On the other hand, the decision of the Judicial Committee in Khiarajmal v. Daim 32 C.P 296 : 2 A.L.J. 71 : 1 C.L.J. 584 : 7 Bom. L.R. 1 : 9 C.W.N. 201 : 32 I.A. 23 shows that if, on the death of a defendant, his proper legal heir is not brought on the record as required by law, the decree in such a suit will not be binding upon the true heir. It is not clear, as pointed out in Kadir Mohideen Marakhayar v. Muthukrishna Ayyar 26 M.P 230 : 12 M.L.J. 368 whether in the. litigation which went up to the Judicial Committee in General Manager of the Raj Durbhunga v. Maharajah Coomar Ramaput Singh 14 M.I.A. 605 : 17 W.R. 459 : 10 B.L.R. (P.C.) 294 : 2 Suth. P.C.J. 575 : 3 Sar. P.C.J. 117 : 20 E.R. 912 the question arose after decree or prior to decree and whether the person who was brought on record was in possession of the property as heiress of her husband. In any ease the widow against whom the proceedings were continued had a 'present interest' to protect and consequently that decision is within the principle enunciated in Ramasawmi Chettiar v. Oppilamani Chetti 4 Ind. Cas. 1059 : 19 M.L.J. 671. The learned Counsel for the appellant argued that Suryanaryanamurthy, although a divided brother's son, had an interest in the property in dispute. We cannot accede to this contention. He had only a spes successionis and so long as the daughter was alive, he cannot be said to have had any interest in the property in dispute.
4. We think, therefore, that the Subordinate Judge is right in holding that the decree obtained against Suryanarayanamurthy is not binding upon the 1st defendant or the plaintiff and that consequently the plaintiff is entitled, as the puisne mortgage, to sue for the sale of the property subject to the rights of the first mortgagee. The decree given in this case is, therefore, right. We dismiss the second appeal with costs.