1. The dispute in this second appeal relates to nearly nine acres of land which, along with some other properties, were originally owned by two persons Adimoolam and Thambusami, and were the subject of a mortgage in favour of one Adinarayana Pillai. One Doraisami became the purchaser of the disputed properties from the owners, Adimoolani and Thambusami, with an undertaking to discharge the mortgage of all the properties. But he did not conform to that agreement.
By his will Ex. D. 7 dated 17-10-1930, Dorasami bequeathed his ownership in these and other properties in favour of his only son, the fifth defendant, and his daughter-in-law the 2nd defendant, for their lives, with a vested remainder firstly in favour of the male children of the fifth and the second defendants, and failing the birth of any male children to them, in favour of their female children, with absolute rights. There were also further directions in the will that in case the fifth and second defendants did not have any progeny, other persons named in the will should take the properties with absolute rights. The result of this will was that on the death of Doraiswami, the fifth and second defendants became entitled to a life estate in the disputed properties with remainder in favour of any children that may be born to them.
2. The heirs of the mortgagee, Adinarayana Pillai, filed O. S. No. 34 of 1933 in the court of the Subordinate Judge of Cuddalore for recovery of the mortgage amount by sale of all the hypotheca. By that time Doraiswami had died and the present fifth defendant his only son, was impteaded as the 24th defendant on the ground that he represented the joint family of Doraiswami. Obviously, the plaintiffs were not aware of the will Ex. D. 7, and no mention was made of the devise in favour of the fifth defendant and nothing was said about the legacies created there under. On the 19th December 1934, there was a preliminary decree for sale of the mortgaged properties, Ex. P. 11, followed by a final decree on 22nd July 1938, Ex. P. 12.
In execution of that decree, the present plaintiff purchased these items in court auction on 26th April 1943 and when he proceeded to take possession of the properties on foot of the sale certificate issued in his favour, he was obstructed by defendants 1 to 5. Consequently, an application for removal of obstruction Was made which did not meet with success and the present suit by the plaintiff is for removal of obstruction and recovery of properties on the strength of the sale certificate in his favour.
3. As stated already, the second defendant is the wife of the fifth defendant and defendants 3 and 4 are their minor children. The first defendant is a usufructuary mortgagee of a part of the property and purchaser of some other parts of the property from defendants 2 to 5 under the documents dated 31st July 1930 and 8th August 1941 (Exs-D. 10 and D. 11 respectively). He put up the objection on the ground that the plaintiff has obtained no title under the court sale, that defendants 2 to 5 continued to be the owners of the equity of redemption and therefore the judgment and decree in O. S. No. 34 of 1933 could not be binding on the suit properties.
Defendants 3 and 4, the daughters of the second and fifth defendants, also put forward identical pleas contending that the fifth defendant impleaded as the 24th defendant in O. S. No. 34 of 1933 could, not have represented the equity of redemption and the decree obtained in that suit could not therefore enable a purchaser to acquire any rights in the suit properties. The trial court held that the decree in O. S. No. 34 of 1933 was not valid and binding on defendants 1 to 4 because the fifth defendant did not represent defendants 2 to 4 and the estate of Doraiswami in the suit. On appeal by the plaintiff, the Subordinate Judge of Cuddalore, has set aside the decision of the trial court and decreed the suit as prayed for. The present second appeal is by the first defendant claiming to be the assignee and mortgagee of the suit properties from defendants 2 to 5,
4. One fact found by the learned District Munsif has not been questioned anywhere and that is that in O. S. No. 34 of 1933 there was no collusion between the fifth defendant and the plaintiffs therein and that the proceedings were completely bona fide. It shows that probably Adinarayana's heirs were not aware of the existence of the will, EK. D. 7, and on that ignorant belief impleaded the present fifth defendant as the 24th defendant bona fide and without any ulterior intentions. It could therefore be taken that the non-impleading of defendants 2 to 4 in O. S. No. 34 of 1933 was only as a result of ignorance and nothing more.
The learned Subordinate Judge was inclined to take the view that though the second and fifth defendants were legatees under the will of Doraiswami, still the heir-at-law, the fifth defendant, was the person competent to represent Doraiswami in that suit, and the fact that the second defendant was not impleaded in the suit did not make the decree passed in any way the less binding upon the properties.
5. The arguments in second appeal covered a wide range and questions allied and germane to 'the topic under consideration were discussed at length by the learned counsel. Mr. S. Ramachandra Iyer for the appellant in outlining his broad points divided the phases of argument thus: Firstly it was argued that the mortgage decree against the fifth defendant cannot bind the second defendant at all, because under Section 104 of the Indian Succession Act, which applied to the wills executed by Hindus, immediately on the death of the testator, the ownership of the property bequeathed under the will vests in the legatees, viz, in this case on defendants 2 and 5.
If that were so, under Order XXXIV Rule 1 C. P. Code it is obligatory that the second defendant who is as much interested in the equity of redemption as the fifth defendant, should necessarily have been impleaded and since O. S. No. 34 of 1933 is not against Doraiswami but against his heirs, the fifth defendant cannot represent the second defendant in accordance with the Principle that in proceedings in a court of law, except under very limited and narrow circumstances, a co-tenant or a tenant-in-common cannot represent another,
In this case, the legatees, defendants 2 and 5 can only be said to be tenants-in-common and between them there can be no legal or contractual relationship which would make it possible for one to represent the other. Whatever might be the legal result of the rights of the fifth defendant passing by the sale to the plaintiff, according to the learned counsel, the second defendant's rights, not being in any way affected by the fifth defendant alone being a party, would remain intact and cannot pass on by the sale. It is settled law that if an owner of the equity of redemption is not made a party to a suit by a mortgagee or a transferee of this interest, a decree obtained in such a suit cannot confer any lights on the purchaser of the property as against the owners of the equity of redemption.
This is clear from the decision of the Full Bench in Nagendra Chettiar v. Lakshmj Animal, ILR Mad 846: AIR 1933 Mad 5SS as well as from the decision in Chandramma v. Seethan Naidu, : AIR1931Mad542 . An owner of tho equity of redemption, if left out of the mortgagee's suit, cannot be affected by the result of the suit. See : AIR1931Mad542 , Ram Prasad v. Bhikari Das, ILR All 464; Jugdeo Singh v. Habibullah Khan, 6 Cal LJ 612 and Veetil Seethi Kutti v. Achuthan Nair, 21 MLJ 213 . Nobody can dispute the general principle that in order that 3 person should be bound or be prejudiced by an order made in a proceeding, he should be made a party to the proceeding or should claim under one who was a party to the proceeding and where it is alleged that his interest was represented at the proceeding by another person, it must be shown that at the time the order was passed the representative character was subsisting and had not been shed by the representative, vide Anjayya v. Gundarayudu : AIR1943Mad381 .
Decisions of this Court have gone to the extent that when several coparceners own the equity of redemption and only some of them are made parties to the litigation, those who are parties could not be said to properly represent all the other coparceners, as such a right of representation is unknown to Hindu law; but where a coparcener has been put forward as the manager of the family to represent the interests of the family in a particular litigation, he can so represent, but not Otherwise.
It is hardly the case that the second and fifth defendants are coparceners in the sense understood under the Hindu law; and if one coparcener cannot represent another, when both of them are owners of the equity of redemption in a mortgage suit, it stands to reason that the fifth defendant could not have represented the second defendant In these circumstances the question hag to be considered as to how far the fifth defendant could have represented the estate of the deceased Doraiswami.
6. The learned counsel for the appellant tried to make a distinction, between cases in which a debt owned by a deceased person has been made the subject of a litigation by impleading some only, or a wrong legal representative, of such person and obtaining a decree thereon, so as to bind the estate, and a case where, on the death of the owner of the equity of redemption, some only of his legal representatives were impleaded in the mortgage action, and argued that on the death of a person who is liable as a mortgagor to pay the money, there is nothing like proceedings against an estate, because the suit can only be against a person. He relies upon the observations of Varadachariar and Venkatara-mana Rao JJ. in Kanchamalai Pathar v. Shahaji Rajah Sahib, ILR Mad 461 : AIR 1936 Mad 205 .aradachariar J. at page 477 (of ILR, Mad) : (at p 208 of AIR) observes as follows:
'It is thus clear that the liability is that of the taker and not of the estate (as an entity) though the 'estate' furnishes the measure of liability'.
In a very exhaustive discussion, if I may say so with great respect, the learned Judge after adverting to English, American and Indian precedents, lays down, that the remedy is against the representative of the deceased person and not against the estate as such. He refers to passages in Shurfun Bebee v. Collector of Sarun, 10 Suth WR 199 and Modho Prasad v. Kesho Prasad, ILR All. 337. Venkata-ramana Rao J. also, in various places, after quoting Salmond on Jurisprudence and other authorities, expressed the opinion that it is a legal fiction, to speak of an estate of a deceased person, because, on the death of the person, he cannot have any more estate.
But the decision of the Full Bench in ILR Mad 461: AIR 1936 Mad 205 turned on a very different question, viz, whether in execution of a money decree, after immoveable properties of the judgment-debtor were attached and the judgment-debtor died, and execution was proceeded with, without bringing his legal representatives on record, such proceedings and the sale held thereunder will be valid and binding so far as the legal representatives are concerned, and the Full Bench held that the sale was void and not merely voidable. The general observations regarding the nature of the property and the ownership of the same after the death of the person bound to pay a debt or redeem a mortgage cannot be of much use in a case like the present and we do not think learned counsel for the appellant can secure any advantage by relying on the Full Bench decision.
7. With respect to a money claim against a debtor, there have been eases of this Court which hold that where in ignorance of the real state of affairs, a suit is brought against a person who is not the proper legal representative and a decree bona fide is obtained, such a decree would be binding on the estate.
8. As early as 1872, the Privy Council in a decision reported in the General Manager, Raj Durbhunga v. Coomar Ramaput Singh, 14 MOO Ind App 605 had to deal with a case where a decree was obtained for a debt due by a deceased individual by instituting proceedings against a wrong legal representative and the question at issue was whether such a decree would be binding. Though, from the head note it appears that the suit was laid against the debtor himself, and pending the suit, on his death, his widow was impleaded as legal representative, it is clear from the decision of their Lordships that when the proceedings were initiated the debtor had died. At page 616 their Lordships observed as follows:
'But the case does not rest there, because in the certificate of sale there is a distinct reference to the decree obtained by the appellant from the Zillah Court, and therefore, the whole proceeding, if fairly looked at, amount to this, that the estate of Gourpersbad was sold under that decree in execution of his debt, and that the interest of his widow, the registered proprietor and ostensible owner of the estate, and also the interest of his son, if he had any interest, was bound by that decree'.
This decision has been the subject of controversy subsequently and has been interpreted by different Benches of Courts in different ways. But Ramaswami Chettiar v. Oppilamani Chetti, ILR Mad 6 an oft quoted case, lays down the principle that a decree-holder who is to apply for execution against the legal representative of a deceased judgment-debtor may select, from among several rival claimants, as legal representative, the one whom he believes honestly to have the best prima facie title and the representation, in the absence of fraud or collusion will be sufficient, even though it subsequently turns out that some other person is the true legal representative; and for laying down this proposition Khairajmal v. Diam, ILR 32 Cal 296 (PC) was relied upon. The principles laid down in ILR Mad 6 though analogous, cannot be said to apply to the facts before us for the reason that in the present case there was no decree against Doraiswami.
9. There have been divergent views expressed with regard to the binding nature of decrees passed against a person who, in law, could not be the heir of a deceased debtor but who had been bona fide impleaded as the legal representative, and the Courts have been liberal in trying to make such decrees binding upon the estate which belonged to the deceased person who was bound to pay the debt. One has therefore to make a distinction between the line of cases where a decree has been validly and rightfully obtained against a debtor, but in proceedings in execution a wrong legal representative has been added and the properties sold, and the other class of cases where, for a debt due by a deceased person, someone, who is not his legal heir, or who is one of the legal heirs, is impleaded when the proceedings are initiated and a decree obtained against him.
In the latter class of cases it has been suggested that there may not be a decree against the estate but only against the party to the suit; and if the party to the suit cannot represent the estate left by the deceased, then such a decree could not bind the estate as well. The principle enunciated in ILR Mad 6 was extended in Gnanambal Animal v. Veerasami Chetti, 1916 29 MLJ 698; AIR 1916 Mad 1022 by Sadasiva Aiyar and Napier JJ. to instances where the suit itself was filed against a wrong legal, representative and they held that where a creditor of the estate which belonged to a deceased person, in ignorance of the true state of affairs, sued the widow in possession and the illegitimate son who would have been the legal representatives had there not been a will left by the debtor under which another person was constituted executor and someone else as a legatee, and the creditor obtained a decree against tho widow and the illegitimate son alone and sold in execution the property in the possession of the widow and the same was purchased by a stranger, such a sale was binding on the legatee who was not impleaded in the suit. They refer to the decision mentioned by us, viz, 14 Moo Ind App 605 .
The question was specially mooted at page 703-of the judgment of Sadasiva Aiyar J. where he refers that a distinction was sought to be made on the ground that where the debtor's wrong legal representative was sued in the first instance and was not brought in as a legal representative owing to the debtor dying during the pendency of the suit, the sale of the deceased debtor's property in execution, would not pass the debtor's interests.
The learned Judge did not accept that contention and referred to ILR Mad 6. It is interesting to note that in 14 Moo Ind App 605 the facts show that the suit was laid not against tho debtor when he was alive, but after his death, against the widow and the son. But the decree was passed only against the widow on the ground that: the son had been adopted, though later on it was 'found that the son was the real heir and not the-widow. It the facts of that case are clearly understood, there is no difficulty whatever in coming to-a correct conclusion.
But even without making a distinction between, the two class of cases, Sadasiva Aiyar J. in 29 MLJ 698: AIR 1916 Mad 1022 was of the view that the principles laid down in 14 Moo Ind App 605 must be mado applicable to a case where the representative was sued for the first time. Again, in Bachu Soorayya v. T. Chinna Anjaneyalu, : (1919)36MLJ106 Sadasiva Aiyar J. reiterated the proposition which he had laid down earlier to the effect that where a decree is passed for a debt due by a deceased person in a suit brought against a person in possession of the estate-but who is not the rightful heir of tho deceased debtor, the decree and the proceedings in execution of such decree should be held to bind the interests of the real heir.
Such a case is an exception to the general rule-that proceedings in execution ot a decree do not. bind the interests of any person who was never brought on record as a party, to the proceedings in the suit. He referred to 29 MLJ 698: AIR 1916 Mad 1022 and followed the same. The learned Judge also noted the classes of cases dealing with, decrees in suit instituted against a debtor before his death but which were continued after his death with a wrong person added as legal representative.
Where a person in good faith obtains a decree against another Person who is found to be in possession of his debtor's property and whom the plaintiff believed to be the legal heir, execution proceedings taken in pursuance of such a decree should certainly bind the legal heir and cannot be questioned by the legal heir subsequently. This proposition is very clear from the cases cited above.
10. There is an exhaustive discussion of the question as to how far and in what circumstances, a decree passed against a wrong heir of a deceased person will bind the true heir in Chaturbhujadoss Kushaldoss and Sons v. Rajamanicka Mudali, ILR Mad 212 : AIR 1930 Mad 930 . Both the learned Judges who decided that case, Madhavan Nair and Rcilly JJ. have considered all the cases on the subject and the ultimate decision is to the effect that since the creditor bona fide believed the wrong heir to be the proper legal representative and the wrong heir was interested in defending the litigation and did defend it and sufficiently represented the estates, the decree obtained without fraud or collusion would he binding on the real and true heir. At page 222 (of ILR Mad) : (at p. 935 of AIR), Madhavan Nair J. observed as follows :
'In my opinion there is no justification for confining the principle enunciated in) this decision, ILR Mad 6, only to those cases where a wrong representative is brought on record in the course of execution proceedings. The question to be considered whether it arises in the course of executionproceedings or in the course of the suit is this :whether the estate of the deceased person was sufficiently represented by the legal representative whohas been actually brought on record, I think thesame principle should govern all cases where a wrongrepresentative has been brought on record, whethersuch representative has been added in the course cfthe suit or in the course of the execution proceedings. The same consideration should apply also toa case where the suit itself is instituted against thewrong legal representative at the very commencement. '
Reilly J. at page 234 (of ILR Mad) : (at p. 940 of AIR) observes as follows:
'If a plaintiff in good faith sues a person who appears to him to be the proper legal representative of his deceased debtor and that representative has an existing interest to defend the estate and there is no fraud nor collusion in the proceedings, then a decree so obtained is binding on the deceased's estate whoever may be actually entitled to the residue of the estate after the debts have been, paid. That appears to me to be both good sense and good law as laid down by the Privy Council.'
11. We may in this connection refer to a very recent case of the Orissa High Court reported in Sarat Chandra v. Bichitrananda, : AIR1951Ori212 , where Jagannadhadas J. elaborately considered a large number of previous decisions. At page 225 the learned Judge refers to the cases on the subject and formulates the different categories of cases in which simitar questions came up for consideration. Though the learned Judge has discussed other contingent instances, so far as regards proceedings taken, against a person who was found to be in actual possession of the properties of a deceased claiming to succeed to him though not the legal heir, such proceedings will be binding on the real legal heir.
But this was a case where the suit was on foot of a mortgage. The final conclusion of the learned Judges is contained at page 229 where ho states that such mortgage decrees are binding on the real heir and his only remedy, if at all, in, a proper case, is to get the sale set aside by appropriate proceedings in time. That this view has been held uniformly in Madras is clear from the observations of Varada-chariar J. in ILR Mad 461 : AIR 1936 Mad 205 The learned Judge says ;
'While insisting on representation of a deceased person's estate, the High Courts in India and the Judicial Committee have taken a very liberal attitude in the matter of condoning defective representation even in the event of death before the institution of or during the pendency of an action and much more so in the event of death after decree. See ILR Mad 212 : (AIR 1930 Mad 930) and other cases referred to in Muthuraman Chettiar v Adai-kappa Chetti : AIR1934Mad730 .'
Though the question of initiating proceedings against a wrong legal representative for the debts due by a deceased person did not arise in : AIR1934Mad730 , still there are observations to the effect that decrees obtained in such suits would be binding as Varadachariar J. who pronounced the judgment in that case later on refers to this decision in ILR Mad 461 : AIR 1936 Mad 205 . At page 416 (of ILR Mad): (at p. 733 of AIR) the learned Judge observed :
'Apart from the provisions of Order XXII, the question whether, in any suit, an estate can in the first instance be represented by some of the heirs entitled thereto in the absence of other heirs has often come up for consideration and the preponderance of authority is in favour of the view that, in the absence of fraud or collusion, the representation by some of the heirs will be sufficient representation. (See Kadir Mohideen Marakayar v. Muthukrishna Aiyar, ILR Mad 230, Govinda-samt Udaiyar v. Armamalai Udaiyar : AIR1927Mad1071 , Abdulla Sahib v. Vageer Beevi Animal : AIR1928Mad1199 and Jehrabai v. Bisrnillabi, : AIR1924Bom420 .'
12. Our attention was however drawn to other cases of this Court where a somewhat contrary view seems to have been taken. We are not here concerned with a decree obtained for a debt for this reason that the suit out of which this second appeal arises was on a mortgage. There are two other cases reported in Kalfappan Servaikaran v. Vardarajulu, ILR Mad 75 and Srinivasa Aiyangar v. Kanthinathi Animal, ILR Mad 465 which proceeding on a somewhat different line from that in ILR Mad 6. In ILR Mad 75 a decree was obtained against the widow of a deceased debtor for the recovery of a sum of money from the estate of the debtor in the hands of the widow.
Subsequently someone else established his title to the estate of the deceased as against the widow and dispossessed her of her husband's estate. Then the decree-holder who had got a decree against the widow attempted to execute the same against the claimant who had Succeeded against the widow and in those proceedings it was held that the degree was not against the estate but against the widow as the legal representative of and was capable of execution only against the widow and her representatives and not against the estate of the debtor. In that case Munro and Abdur Rahim JJ. interpreted the decree as not against the estate but against the widow personally. They say at page 77 :
'When a person is sued as the legal representative of a deceased person for the recovery of a debt due by the deceased, and a decree is given for money to be paid out of the assets of the deceased in the hands of the legal representatives, the decree is nonetheless a decree against the legal representative. Section 252 C. P. Code makes this clear. It refers to the legal representative as the judgment-debtor and it makes him personally liable under certain circumstances. It follows that such a decree can only be executed against the legal representative who was made defendant in the suit or his or her representatives.'
That is the foundation of their refusing to allow the decree to be executed against the rightful claimant because in the opinion of the learned Judges the decree should be construed as only 3 personal decree against the widow. Abdur Rahim J. in ILR Mad 465 expressed a similar view when he stated that a decree obtained against the legal representatives of a deceased person should be deemed to be a decree against such legal representatives as judgment-debtors following the earlier decision in ILR Mad 75 given in the report as 19 MLJ 651 and this decision was affirmed in Letters Patent Appeal No. 18 of 1910.
13. In neither of these decisions has the question of the imperfect representation of the estate of a deceased person and the principle enunciated in 14 Moo Ind App 605 been considered. The learned advocate for the appellant in addition to placing reliance on these cases, has also addressed the circumstance that the subsequent decisions where the principle of sufficient represen-fation has been recognised has not attempted to reconcile the apparent conflict which had arisen. But we see that in 1918 29 MLJ 698 : AIR 1918 Mad 1022 Sadasiva Aiyar J. referring to ILR Mad 75 observes as follows ;
'It is unnecessary for me to express a final opinion on the question decided in ILR Mad 75. What was decided in that case was that the true legal representative cannot, after the decree, be brought on the record for the purpose of execution and, that the deceased debtor's property in his hands cannot be attached and sold in that same suit.'
Later On the learned Judge says :
'As regards these two cases, Kali Charan v. Sukhada Sundari, 22 Cal. LJ 272 : AIR 1916 Cal 661 : ILR Mad 75, it seems to us with great respect that they do not give sufficient weight to the observations of their Lordships of the Privy Council in several cases that decree-holders and purchasers in court auction should not be de- prived of their legitimate rights on bare technicalities where the merits are clearly in their favour.'
With great respect, we are in agreement with Sadasiva Aiyar J.
14. But Mr. Ramachandra Aiyar for the appellant wants us to follow the decision in Kesavasamy Aiyar v. Narayanan Chetti, 24 MLJ 228, which does not seem to have been discussed or considered in the spbsequent cases. That was a case where a cowledar of a village in zamindari died and his interest devolved on two persons, one of them remaining in possession paying poruppu, issuing paltas to cultivating tenants and receiving muchilkas from them in his own name and the other receiving his share of the income from the co-owner without obtaining possession of property.
In such a case a sale of the land under the Madras Rent Recovery Act of 1865 for arrears of rent due under the cowle after notice to the person in possession would not pass the interest of the joint owner who was not served with notice of the proceedings that led up to the sale. There is no discussion of the right of one legal representative to represent the estate of the deceased owner at all, What is stated at page 229 is as follows :
'The interests of the original cowledar having vested in the plaintiff and Narasimier, the plaintiff's inierest in the property cannot pass by a sale unless he was made a party to the proceedings which led up to the sale by notice having been served upon him.'
The decision in 14 Moo Ind App 605 and the other cases of this Court were not brought to the. notice of the learned Judges. We do not think that that case can be of any help to the appellant. Learned counsel for the appellant also relied upon Maddala Madhayar v. Ayudu V. Subbama, 31 M LJ 222 : AIR 1917 Mad 979 (2)) where during the pendency of a suit the defendant died leaving a daughter as his heir but the plaintiff impleaded as the legal representative of the deceased his divided brother's son who was only a reversioner so long as the daughter was alive and obtained a decree with the reversioner as a defendant.
In execution thereof, the property was purchased by the Plaintiff; it was held that the daughter, who was the true heir of the deceased, was not hound by the decree and the sale in execution. The learned Judge made a distinction between cases where some only of the legal representatives of the deceased are brought on record and where, after the decree, the judgment-debtor dies and execution is carried on against a wrong representative of the judgment-debtor and cases like the one which they had to consider, viz'., where the only person added was the wrong legal representative. They distinguished the case in ILR Mad 33 C on the ground that one of the several persons who was entitled to represent the deceased judgment-debtor was brought on record in that case.
The learned Judges referring to 14 Moo Ind App 605 stated that it was not clear, as pointed out in another case in ILR Mad 230 whether in that litigation which went up to the Judicial Committee, the questions arose after decree, and whether the person who was brought on the record was in possession of the property as heiress of her husband. They further stated that in any case the widow against' whom the proceedings were continued had a 'present interest' to protect the estate and consequently that would be sufficient. It is clear that the Bench did not dissent from the decision in ILR Mad 6,
On the other hand, the indications are to the effect that they were inclined to follow the same. If at all the distinction which the learned Judges seem to make is in favour of the position taken up in this case for the reason that unlike the case in 81 MLJ 222 : AIR 1917 Mad 979 (2)) in our case the fifth defendant had a present interest to protect the estate and was one of the legal representatives. We do not think that this decision can also be of any help to the appellant.
15. Only one more case need he cited, which was discussed in very great detail the question of representation of the estate of a deceased person and where all the earlier cases have been considered in sufficient detail and that is a decision of Wallace and Tiruvenkatachariar JJ. in Sanna Govappa v. Rodda Sanna Govappa : AIR1929Mad482 . The learned Judges referred to most of the cases we have already considered and the conclusion arrived at by them is that one of the essential conditions of representation is that the plaintiff decree-holder must have acted ban a fide i.e., not only in good faith but also with due care and caution.
Therefore, whether in a particular case the impleading of a wrong party was done bona fide is a question of fact which will have to be determined with reference to all the circumstances. It must also appear from the Proceedings that the person is impleaded in a representative capacity and that the decree or Order is passed against Mm as representing the estate of the deceased. But in this case the legal representative was added in execution, since the decree was passed against the Original debtor. It was in execution proceedings in a mortgage claim. Though the circumstances of that decision are not exactly akin to those of the present case, we think that the propositions enunciated therein are applicable to the present case also.
16. Mr. K. S. Desikan for the respondent was at pains to show that in a mortgage suit, where the defendant is impleaded as an heir of the mortgagor, it is the Property that is proceeded against and therefore what one has to find out is whether the property has been properly represented. If Proceedings are against the property, then whoever is in possession can represent the properly, and in the present Case the fifth defendant was the 24th defendant in that litigation. We do not think it necessary to base our decision on this distinction though something might be said in favour of that.
It seems to us that the preponderance of authority In this Court as has been demonstrated in ILR Mad 212 : AIR 1930 Mad 930 is to the effect that in the Case of a mortgage where, after the death of the mortgagor, in a suit on the mortgage, the mortgagee bona fide and after due care and caution impleads a person whom he considers as the legal representative of the mortgagor and who is in possession of the mortgaged properly and 3 decree is obtained on that footing without that legal representative disclaiming any liability, it has necessarily to be held that the decree would be binding on any other legal representative that might be in existence.
We are in entire agreement with the observations of Jagannadhadas J. in : AIR1951Ori212 , and since that learned Judge has very elaborately considered a large body of case Jaw, not only of this Court but of other Courts as well we do not wish to again reiterate and discuss the case of other Courts. What has happened in this case is that the mortgagee Adinarayana bona fide thought that the fifth defendant was the true legal heir of the deceased Doraisami and on that basis impleaded him as the 24th defendant in his mortgage action.
No objection was taken by the present fifth defendant; nor did he plead that the present second defendant should also be made a party. He did not disclose the existence of the will. The Court was not alive to the existence of the will: nor was the plaintiff put on notice of such a will. Such being the case we are definitely of opinion that the present case comes within those envisaged in 14 Moo Ind App 605 , ILR Mad 6: 29 MLJ 698 ; AIR 1916 Mad 1022 , ILR Mad 212 : AIR 1930 Mad 930 and : AIR1951Ori212 .
It has to be remarked that the present fifth defendant who was the 24th defendant in Ex. P. 1 1 allowed the suit to proceed ex parte and permitted a decree to be passed against the mortgaged property. After all these things have taken place he and his wife, the second defendant, as well as their children, defendants 5 and 4, have assigned the property in favour of the first defendant. In our view the learned Subordinate Judge has correctly appreciated the legal position. The second appeal therefore fails and is dismissed with costs of the plaintiff (first respondent).