Daya Ram & Ors Vs. Shyam Sundari
[1964] INSC 190 (8 September 1964)
08/09/1964 AYYANGAR, N.
RAJAGOPALA AYYANGAR, N. RAJAGOPALA GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C.
CITATION: 1965 AIR 1049 1965 SCR (1) 231
CITATOR INFO:
R 1966 SC 792 (517) R 1967 SC 49 (2,3) RF
1971 SC 37 (5) R 1975 SC 733 (30,32,33) RF 1979 SC1393 (29) F 1989 SC1589 (5)
ACT:
Partition-suit for-Equities between
co-owners.
Code of Civil Procedure (Act V of 1908),
O.XXII, r. 4(1) and (3)-Scope of.
Practice-Legal representatives-Duty to bring
on record to make record complete.
HEADNOTE:
Har Charan, respondent's father, and his two
brothers, owned certain lands. After the death of Har Charan his brothers sold
the lands to the father of the appellants. The respondent filed a suit claiming
a decree for possession of a third share in the property alleging that Har
Charan and:
his brothers were separated in interest.
After notice of the claim of the respondent. the purchaser made some
constructions in pursuance of an agreement with the Improvement Trust. The
respondent's claim was decreed but, in execution of the decree it was ordered
that she should file a suit for partition in which her rights would be worked
out. In the suit for partition, the trial Court held that in equity she was only
entitled to a decree for money representing the value of her third share, on
the ground that the appellants' father had constructed buildings on the land.
The High Court allowed her appeal holding that as the buildings were completed
with the knowledge -of the respondent's claim, the appellants could not plead
any equity in their favour. 'Me decree was challenged in appeal to the Supreme
Court. While the appeal was pending the respondent died and only some of her
legal representatives were brought on record. It appeared however that there
was no want of diligence or bona fides in the appellants, in making an enquiry
as to who the legal representatives were.
HELD : (i) The appellants' father was in the
position of a trespasser with notice of the claim of the true owner and he
could not claim any special equity based upon his having bona fide put common
property to use and :effected improvements on it. [237B-D].
(ii) Under 0. XX.11, r. 4(1) and (3) of the
Civil Procedure Code, 1908, where a plaintiff or an appellant after diligent
and bona fide enquiry ascertained who the legal representatives of a deceased
defendant or respondent were, and brought them on record within the time
limited by law, there would be no abatement of the suit or appeal, even though
some other legal representatives remained unknown to him and were not
impleaded, if those legal representatives who were impleaded sufficiently
represented the estate and a decision obtained against them bound the entire
estate. If however it is brought to the notice of the appellant during the
pendency of the appeal that-some of the legal representatives had not been
impleaded, it would be the duty of the appellant who was thus made aware of his
default, to bring those others on record. [24OD-F; 242B].
Case law reviewed.
232
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 360 of 1962.
Appeal from the judgment and decree dated
February 26, 1957 of the Allahabad High Court in F. A. No. 487 of 1945.
S. K. Kapur, Advocate-General, Punjab, S.
Murty and K. K. Jain, for the appellants.
G. N. Dikshit, for the respondent.
The Judgment of the Court was delivered by
Ayyangar J. This is an appeal by a certificate granted by the High Court of
Allahabad under Art. 133 (1) (b) of the Constitution and represents, and that
is our hope, the last stage of a litigation which has lasted over forty years
between the deceased respondent-Shyam Sundari-and Mata Din, the father of the
appellants.
The following facts are necessary to be
stated in order to appreciate the very short point that arises for
consideration 'in this appeal. The father of Shyam Sundari-the deceased
respondent was one Babu Har Charan Lal.
He was the owner along with his two
brothers-Kanhaiya Lal and Sheo Narain, of plots 599 and 600 situated in Sisamau
in Kanpur on which there existed certain petty constructions.
The three brothers were separated in interest
and were each entitled to a third share. Babu Har Charan Lal died in December,
1915 leaving behind him surviving his widow Tulsa Kunwar and an only daughter-Shyam
Sundari. Tulsa Kunwar died on June 6, 1919 but even before her death Kanhaiya
lal and Sheo Narain, the two brothers of her husband claiming a full interest
in those plots, sold them to Lala Mata Din, the father of the appellants by two
registered deeds of sale for Rs. 7,000 on, the footing that each was entitled
to a half share, ignoring the rights of Tulsa Kunwar who was admittedly no
party to that transaction of sale. After the death of Tulsa Kunwar, Shyam
Sundari made a claim against the purchaser for her third share in the property
as the heir of her father, but as this was denied to her, she filed in March
1922 a suit numbered as 20 of 1922 in the Court of the Second Subordinate
Judge, Kanpur for the recovery of possession of her third share in these two
plots.
But before this suit was filed certain
matters transpired between Mata Din and the Kanpur Improvement Trust which have
to be referred to because the agreement entered into on December 15, 1921
between the Improvement Trust and Mata Din as a result of these negotiations
and the steps taken by Mata Din in consequence 233 thereof are relied on by
learned Counsel for the appellant in support of the contentions raised by him
in the appeal.
It appears that there was a proposal for the
acquisition of these plots by the Kanpur Improvement Trust, that the proposed
acquisition was objected to by Mata Din and that the proposal was abandoned by
the Improvement Trust as a result of the agreement entered into by Mata Din
whereby he agreed to convey to the Trust 895.35 sq. yds. of land free of cost,
in lieu of the betterment contribution and also agreed to construct on the
remaining part of the premises, shops and houses in accordance with plans
approved by the Improvement Trust. 'Me relevance of this agreement and of
the,constructions -effected by Mata Din in pursuance of the agreement we shall
reserve for consideration later.
The principal defence of Mata Din to the suit
20 of 1922 was based on the allegation that Har Charan Lal was joint in status
and in interest with his two brothers and that on the former's death without
male issue the family property survived to the other two brothers. The trial
Court found against the plaintiff Shyam Sundari on this issue and dismissed her
suit. She filed an appeal to the High Court and the learned Judges allowed her
appeal. At the stage of the hearing of the appeal a claim was made by Mata Din
that the was entitled to compensation for the building erected by him on the
ground that he had effected improvements to the property (these being the shops
and houses which he undertook to construct under the agreement with the
Improvement Trust) bona fide and he rested his case in this regard on the terms
of s. 51 of the Transfer of Property Act. The learned Judges, however,
disallowed this claim for compensation. The claim to compensation for
improvements effected had not been raised in the pleadings, nor urged in the
trial Court and the learned Judges observed "No definite allegation of
improvement of the property was raised in his written statement. No sum spent
on the building was specified and there is very good reason. as we have said,
to believe that Mata Din had no building on this and on the 1st December, 1921.
We cannot for a moment believe that the building was finished by the 1st
December, 1921. He had notice of the plaintiffs claim by March, 1922 and if he
went on after getting notice of the plaintiffs claim to finish the completion
of the building he was taking a risk and he must accept the consequences."
234 Allowing the appeal the learned Judges granted Shyam Sundari a decree for
possession of a third share of the, plots specified in the lists attached to
the plaint. That decree has now become final.
When Shyam Sundari sought execution of this
decree, there was again trouble raised by Mata Din and when she obtained joint
formal possession of her third share of the property under the orders of the
executing Court Mata Din filed an appeal to the High Court and the learned
Judges held that Shyam Sundari was not entitled on the basis of the decree
which she had obtained in suit 20 of 1922 to any specific portion of the land.
All that she was entitled to, the learned Judges said, was to symbolical
possession of a third of the plots 599 and 600 and that she ought to file a
separate suit for partition in which this right of hers could be worked out.
In pursuance of this finding and decree of
the High Court,Shyam Sundari filed the suit out of which the present appeal
arises-suit 9 of 1939-against the present appellants who are the sons of Mata
Din. who had died in 1933. The claim made in the suit was for determining the
third share of the lands and for allotting the same to her and if there were
buildings on such a plot the plaint prayed that they might either be given over
to her or be permitted to be demolished by the defendants, with a further
prayer that the plaintiff might be-put in possession of her third share as
ascertained. She also claimed the other usual reliefs of mesne profits and
costs. Several defences were raised to this suit, some of which were obviously
frivolous. Such, for instance, were the pleas that the suit was barred by
limitation or by s. 47 -of the Civil Procedure Code or that she had lost title
by adverse possession on the part of the defendants. The trial Judge overruled
these technical defences and held that her suit for the ascertainment and
possession of a third share was maintainable. But having so held, instead of
granting her a decree for a third share of the plots to which she had obtained
a right in suit 20 of 1922, he granted her a decree for Rs. 2,620 as
representing the third share of the price of the land in question. She was also
granted a decree for Rs. 2,000 as her share of the materials on the land at the
date of the sale to Mata Din, but this portion of the decree was, on appeal by
the appellants, deleted by the learned Judges of the High Court and need not,
therefore, be considered. Her claim to-the allotment in specie of a third share
in the suit land was disallowed to her on the ground that Mata Din had
-constructed certain buildings on the land and that it was not 235 possible to
allot to her a third share in the land without interfering with the buildings
and that for this reason the defendants the appellants before us were entitled
to the equity of requiring the plaintiff Shyam Sundari to sell her share to
them or, in other words, be compelled to take the money value of the land in
lieu of her share in it. Shyam Sundari appealed from this decree to the High
Court. The appeal was allowed by the High Court which granted her a decree for
a share of the property. The decree passed in favour of the respondent by the
High Court runs in these terms:
"A preliminary decree for partition of
-the appellants'1/3rd share in plots 599 and 600 area 1122.99 sq. yds. be
passed and that it is hereby directed that the appellant shall be allotted to
her share the land on which the least valuable constructions stand and that it
shall be open to the respondents to remove their constructions from the site
allotted to the appellants share, but if they do not, the 'appellant shall be
entitled to take possession over them without any payment and shall become
their owner." It is the correctness of this decree for partition and
possession that is challenged by the appellants who, as stated before, have
obtained a certificate of fitness from the High Court.
The ground upon which the learned trial Judge
considered that the defendants were entitled to this equity was that Mata Din
had made the constructions on the land, being obliged to do so by reason of the
agreement with the Trust and that he effected these improvements as a co-owner
and not as a trespasser and that in entering into an agreement with the Trust
he did not act mala fide but to save the land in dispute for himself and his
co-owners from being acquired by the Trust and that as Shyam Sundari did not
assert her title before the construction started it would not be equitable to
permit her to obtain a share in the land on which the new constructions stood
and that it was within the jurisdiction of the court trying a partition suit to
transfer to co-sharers at the market price the shares of others instead of
dividing the property and that as it was impracticable to divide the property
without demolishing some at least of the constructions, the defendants were
entitled to insist that they should be permitted to purchase the third share of
Shyam Sundari in the vacant land. In reversing this judgment, the learned
Judges of the High Court held that the action of Mata Din in purchasing the
property was not bona fide. Mata Din had put forward, in the previous
litigation 236 -suit 20 of 1922-a defence based on s. 51 of the Transfer of
Property Act and in that he failed. The agreement with the Trust was on December
15, 1921 and Shyam Sundari's suit 20 of 1922 was filed in March 1922. It was,
therefore, clear that whether or not the constructions were commenced before
the suit was instituted, they were completed with knowledge of the claim of
Shyam Sundari to which, as the Courts have now found, he had no defence. The
agreement with the Trust could not justify Mata Din's action because the Trust
could not agree with a person who was not the owner of the property to
construct buildings on another's property. It would have been open to Mata Din
to have informed the Trust immediately he got notice of the claim of Shyam
Sundari that only a 2/3rd share in the site belonged to him, but he did not do
so but completed the constructions ignoring the claims of Shyam Sundari. They
could not therefore, take advantage of their own acts and conduct and plead an
equity based upon their wrongful acts. On this line of reasoning the learned
Judges held that there was no equity in favour of Mata Din and his heirs and
hence passed a decree in favour of Shyam Sundari in the terms we have extracted
earlier.
Learned Counsel for the appellants, though he
referred to the Partition Act, could not obviously rely upon it because the
procedure adopted by the learned trial Judge was not one which was sanctioned
by that enactment, viz., sale -of the entire property which is the subject of
partition. He, therefore, urged before us that at the. stage when Mata Din
entered into the agreement with the Improvement Trust the position was that the
interest of the co-sharers was in jeopardy and they ran the risk of losing the
entire property by the same being acquired under the Land Acquisition Act and
that by his act in entering into the agreement the co- owners had been saved
the property now in dispute and that, in the circumstances, the agreement was
one which was entered into bona fide and that he could claim an equity based on
the constructions erected in pursuance thereof. We do not see any substance in
this argument. If the property had been acquired under the Land Acquisition Act
compensation at the market value with the solatium would have been provided and
Shyam Sundari would have been entitled to a third share in that compensation.
'Mere is, therefore, no question of Mata Din salvaging something for the
co-owners; and on that ground being entitled to plead an equity based on such
an act. Nor is there any substance in the argument derived from the analogy of
improvements effected by co-owners or co-sharers, for admittedly Mata Din dealt
237 with the property as full owner denying the claims of Shyam Sundari to a
third share in the property. Virtually, it would be seen that the equity
pleaded is based on the principle underlying s. 51 of the Transfer of Property
Act, and as we have seen, the argument calling in aid this provision of law had
been urged before the High Court in the appeal against the decree in suit 20 of
1922 and had been rejected for the reasons we have extracted earlier, and these
reasons clearly negative all bona fides in the construction of these buildings.
In these circumstances, we consider that-the learned Judges were justified in
treating the acts of' Mata Din as those of a trespasser who, with notice of the
claim of the true owner, had effected constructions on the property. It is
obvious that in those circumstances he could claim no special equity based upon
his having bona fide put common property to use and effected improvements on
it. We consider, therefore, that the decree passed by the High Court is not
open to objection -and the appeal has accordingly, to fail.
Before concluding, however, it is necessary
to deal with a preliminary objection raised by learned Counsel for the
respondent that the appear had abated and that it ought to be dismissed in
limine on that ground. The decree passed in the case, as would have been seen,
was for partition and delivery of separate possession of a 1/3rd share in the
two plots No. 599 and 600 of Sisamau, Kanpur in favour of Shyam Sundari and in
the appeal filed by the heirs of Mata Din she was the sole respondent. The High
Court granted a certificate of fitness under Art. 133 (1) (b) on September 13,
1957 and the appeal was declared admitted by the High Court on November 27,
1957 and thereupon under the relevant provisions of the Civil Procedure Code
the appeal became pending in this Court. Shyam Sundari was stated to have died
sometime in April, 1959 and thereafter the appellants took steps to implead her
legal representatives. In the petition filed by the appellants for the purpose,
they stated that the heirs of the deceased were her husband and four sons, and
it was prayed that these might be impleaded as the legal representatives of the
deceased. The petition was granted. The substitution was made and the legal
representatives who were impleaded respondents have entered appearance and are
contesting the appeal and it is on their behalf that the preliminary objection
is being raised. In the statement of case which these respondents filed in
October 1962 they took the plea that the appeal had abated since a son Kunwar
Bahadur and a daughter Laxmibai of Shyam Sundari had not been brought on record
as legal representatives within the time 238 allowed by law. No allegation,
however, has been made either suggesting that the appellants had not made
diligent and bona fide enquiries regarding who the legal representatives of
Shyam Sundari were or that they had any motive fraudulent or otherwise in not
adding the son and the daughter in the array of legal representatives in their
petition under 0. 22 r. 4, Civil Procedure Code,. The question for
consideration is whether when an appellant has impleaded heirs of the deceased
respondent so far as known to him within the time allowed by law, but has
omitted to bring on record some of the heirs, this omission results in the
abatement of the appeal.
As we shall point out presently, the question
in Sikh cases is whether the estate of the deceased is properly and
sufficiently represented for the purpose of defending the appeal and whether,
in law, the estate can be so represented even when some of the heirs are,
without fraud or collusion, omitted to be brought on record. Before, however,
examining this point, it would be convient to refer to and deal with the
authorities relied on by Counsel for the respondent in support of his
submission. Learned Counsel for the respondent relied on two decisions of this
Court -The State of Punjab v. Nathu Ram (1) and Ram Sarup v. Munshi(2 ) as
loading to this result. In the first case the Government of Punjab acquired
certain parcels of land belonging to two brothers L & N who refused to
accept the compensation offered to them and applied to the Government to refer
the dispute to arbitration. The matter was thereafter referred to arbitration
under the Punjab Land Acquisition (Defence of India) -Rules, 1943 and an award
was passed in favour of the brothers. The Government appealed against the award
to the High Court and during the pendency of the appeal before the High Court
one of the brothers died and no application was made for bringing on record his
legal representatives within the time limited by law. A preliminary objection
-was raised to the hearing of the appeal by the surviving brother who claimed
that the entire appeal had abated by reason of the legal representatives of the
deceased brother not having been 'brought on record in time. The learned Judges
of the High Court accepted this contention and dismissed the entire appeal. The
'State of Punjab came up in appeal to this Court and this Court 'held that in
the case of a joint decree the decree was indivisible and in such a case the
appeal against one respondent alone cannot be proceeded with and would have to
be dismissed as a result of the abatement of the appeal against the deceased
respondent (1) [1962] 2 S.C.R. 636.
(2) [1963] 3 S.C.R. 858.
239 for otherwise there would be two
inconsistent decrees. This Court found that the brothers had made a joint claim
and got a joint decree and it was that decree which was joint and indivisible
that was being challenged in appeal before the High Court. The appeal of the
State was dismissed. We do not see how this decision helps the respondent but
shall examine it after referring to the other decision of this Court on which
the learned Counsel sought support. In Ram sarup v. Munshi(1) there had been a
pre-emption decree and an appeal was preferred from it by the vendees. One of
the appellants died pending the appeal and his legal representatives were not
brought on record. As the decree was a joint one And as part of the decree had
become final by reason of the abatement it was held that the entire appeal must
be held to have abated. The principle upon which these cases rest has no
application to the case before us. The first of the above decisions was a case
where -a joint decree had been passed in favour of two individuals and that was
challenged in the appeal before the High Court. It was common ground that the
appeal against one of the joint decree-holders had abated owing to none of his
legal representatives; having been impleaded within the time limited by law.
There was, therefore, none on the record who could represent the estate of the
deceased respondent.
In such a case the only question that Could
arise would be whether the abatement which ex concessis took place as regards
one of the respondents should have effect partially i.e. confined to the share
of the deceased respondent as against whom the appeal has abated, or whether it
would result in the abatement of the entire appeal. This, it is obvious, would
depend on the nature of the decree and the natural- of the interest of the
deceased in the property.
If the decree is joint and indivisible, it
would be apparent that the abatement would be total. It was precisely a
question of this sort that was raised by Nathu Ram's(2) case. The other
decision in Ram Sarup v. Munshi(1) is also an illustration of the identical
principle, and that is the reason why this Court proceeded to consider
elaborately the nature of the interest inter se of the vendees who had filed
the appeal. It is clear that in the appeal now before us no such question of
partial or 'total abatement arises.
The case before us is entirely different.
There was a decree in favour of Shyam Sundari-and that is the subject- matter
of this appeal. The question is whether there has been abatement of the appeal
against Shyam Sundari. Shyam Sundari's heirs have (1) [1963] 3 S.C.R. 858.
(2) [1962] 2 S.C. R. 636.
240 been brought on record within the time
allowed by law and the only question is whether the fact that two of the legal
representatives of Shyam Sundari have been omitted to be brought on record
would render the appeal incompetent. This turns on the proper interpretation of
0. 22, r. 4 of the Civil Procedure Code :
"4. (1) Where............... a sole
defendant or sole surviving defendant dies and the right to sue-survives, the
Court, on an application made in that behalf, shall cause the legal
representative of the deceased defendant to be made a party and shall proceed
with the suit.
4. (3) Where within the time limited by law
no application is made under sub-rule (1), the suit shall abate as against the
deceased defendant." When this provision speaks of "legal
representatives" is it the intention of the legislature that unless each
and every- one of the legal representatives of the deceased defendants, where
these are several, is brought on record there is no proper constitution of the
suit or appeal, with the result that the suit or appeal would abate? The almost
universal consensus of opinion of all the High Court’s is that where a
plaintiff or an appellant after diligent and bona fide enquiry ascertains who
the legal representatives of a deceased defendant or respondent are and brings
them on record within the time limited by law, there is no abatement of the suit
or appeal, that the impleaded legal representatives sufficiently represent the
estate of the deceased and the decision obtained with them on record will bind
not merely those impleaded but the entire estate including those not brought on
record. The principle of this rule of law was thus explained in an early
decision of the Madras High Court in Kadir v. Muthukrishna Ayyar(1). The facts
of that case were that when the defendant died the first defendant before the
Court was impleaded as his legal representative. The impleaded person raised no
objection that he was not the sole legal representative of the deceased
defendant and that there were others who had also to be joined. In these
circumstances, the Court observed:
"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 (1)
(1902) I.L.R. 26 Mad. 230.
241 in the absence of any fraud or collusion
the decree passed' in such suit will bind such estate ....... If this were not
the law, it would, in no few cases, be practically impossible to secure a
complete representation of a party dying pending a suit and it would be
specially so in the case of a Muhammadan 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 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 representative's or may not be the true legal
representative." This, in our opinion, correctly represents the law. It is
unnecessary, here, to consider the question whether the same principle would
apply when the person added is not the true legal representative at all. In a
case where the person brought on record is a legal representative we consider
that it would be consonant with justice and principle that in the absence of
fraud or collusion the bringing. on record of such a legal representative is
sufficient to prevent the suit or the appeal from abating. We have not been
referred to any principle of construction of 0. 22, r. 4 or of the law which
would militate against this view. This view of the law was approved and
followed by Sulaiman, Acting C.J.
in Muhammiad Zafaryab Khan v. Abdul Razzaq
Khan(1). A similar view of the law has been taken in Bombay-See Jehrabi
Sadullakhan Mokasi v. Bismillabi Sadruddin Kaji(2 )-as also in Patna-See Lilo
Sonar v. Jhagru Sahu (3) , and Shib Dutta Singh v. Sheikh Karim Bakhslz (4 ) as
well as. in Nagpur- Abdul Baki v. R. D. Bansilal Abirchand Firm, Nagpur (5 ).
The Lahore High Court has also accepted the
same view of the law-See Mst. Umrao Begum v. Rehmat Ilahi(6). We are,
therefore, clearly of the opinion that the appeal has not abated.
The next question is about the effect of the appellant
having omitted to include two of the heirs of Shyam Sundari, a son and a
daughter who admittedly had an interest in the property, and the effect of this
matter being brought to the notice of the Court before the hearing of the
appeal. The decisions to which we have (1) (1928) I.L.R.50 All. 857.(2) A.I.R.
1924 Bom. 420.
(3) (1924) I.L.R. 3 Patna 853.(4) (1924)
I.L.R. 4 Patna 320.
(5) 1.L.R. [1944] Nag. 577.(6) (1939) I.L.R.
20 Lahore 433.
242 referred as well as certain others have
laid down, and we consider this also, correct, that though the appeal has not
abated, when once it is brought to the notice of the Court hearing the appeal
that some of the legal representatives of the deceased respondent have not been
brought on record, and the appellant is thus made aware of this default on his
part, it would be his duty to bring these others on record, so that the appeal
could be properly constituted. In other words, if the appellant should succeed
in the appeal it would be necessary for him to bring on record these other
representatives whom he has omitted to implead originally.
The result of this would be that the appeal
would have to be adjourned for the purpose of making the record complete by
impleading these two legal representatives whom the appellant had omitted to
bring on record in the first instance. This is the course which we would have
followed but we had regard to the fact that the suit out of which this appeal
arises was commenced in 1939 and was still pending quarter of a century later
and having regard to this feature we considered that unless we were satisfied
that the appellant had a case on the merits on which he could succeed, it would
not be necessary to adjourn the hearing for the purpose of formally bringing on
record the omitted legal representatives. We therefore proceeded to hear the
appeal and as we were satisfied that it should fail on the merits we did not
think it necessary to make the record complete.
The appeal fails and is dismissed with costs.
Appeal dismissed.
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