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Attorney(S)
  • Mr. A.P Pandey, for the applicant.
  • Mr. S.N Verma, for the opposite parties.
Judges
  • Iqbal Ahmad, J.
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Citation Codes
Equivalent Citations
citation codes
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Attorney(S)
  • Mr. A.P Pandey, for the applicant.
  • Mr. S.N Verma, for the opposite parties.
Judges
  • Iqbal Ahmad, J.
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Smart Summary

Judgment Summary — Iqbal Ahmad, J.

Factual and Procedural Background

This is an application in revision from a decree of a court of small causes in a suit for recovery of Rs. 306-8-0 founded on a promissory note dated 16 August 1931 executed by Sheo Narain Jati. Sheo Narain died before institution of the suit. The plaintiff originally impleaded Jadu Nandan Jati as the sole defendant. The plaint alleged that the loan had been taken by Sheo Narain in his capacity as mahant of a particular math to defray the math's expenses and sought a decree to realise the amount from math property; the small causes court held that this allegation was not proved (a view not challenged before the revisional court).

Jadu Nandan contended that Amar Jati and Itwar Jati were necessary parties. Those two were subsequently added as defendants, but only after the expiry of the period of limitation applicable to a suit founded on the promissory note. The small causes court dismissed the claim against Amar and Itwar because they were impleaded after the period of limitation, and decreed the claim only against Jadu Nandan; that decree was confined to the assets of Sheo Narain in the hands of Jadu Nandan.

The plaintiff filed the present revision challenging the limited decree and arguing that because Jadu Nandan possessed some of Sheo Narain's assets, the decree should have operated against all three defendants (including those impleaded after limitation), permitting realisation from the whole of Sheo Narain's assets.

Legal Issues Presented

  1. Whether a simple money decree obtained against one heir (or one person in possession of assets of a deceased Muhammadan) can be held to bind other heirs of the deceased who were not impleaded within the period of limitation.
  2. Whether a decree obtained against a person in possession of part of the deceased's assets (impleaded within time) may be executed against assets of the deceased that are in the possession of other persons impleaded only after the expiry of the period of limitation.
  3. Whether authorities holding that a decree against some heirs of a deceased Muhammadan binds other heirs (not parties) are applicable — in particular, whether (a) the Hindu-widow analogy, (b) the characterisation of creditors' suits as administration suits, or (c) the mortgagee's lien/equity-of-redemption rationale, justify such binding effect.

Arguments of the Parties

Plaintiff's Arguments

  • The plaintiff contended that because the decretal amount could be realised only from the assets of Sheo Narain, and because Jadu Nandan was in possession of some of those assets, the court should have passed a decree against all three defendants notwithstanding that two were impleaded after expiry of the period of limitation.
  • The plaintiff argued that Jadu Nandan effectively represented the entire assets left by Sheo Narain, so a decree against him should permit execution against the whole of Sheo Narain's assets regardless of which heir actually held particular items.
  • The plaintiff relied on authorities said to support the proposition that a decree obtained against only some heirs of a deceased Muhammadan is binding on other heirs not impleaded (Muttyjan v. Ahmed Ally; Khurshetbibi v. Keso Vinayek; Virchand Vajikaranshet v. Kondu; Davalava v. Bhimaji Dhondo).

Defendants' / Other Parties' Position (as reflected in the opinion)

  • Jadu Nandan contended that Amar Jati and Itwar Jati were necessary parties; they were added as defendants but after the relevant limitation period had expired.
  • Amar Jati and Itwar Jati contested the suit; the trial judge dismissed the claim as against them on the ground they were impleaded after the expiry of the period of limitation. The court below therefore declined to make the decree operative against assets in their possession.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Muttyjan v. Ahmed Ally Held that when a creditor of a deceased Muhammadan sues the heir in possession and obtains a decree against the assets of the deceased, the suit is to be regarded as an administration suit and non-parties (other heirs) cannot claim anything but what remains after debts are paid. The court described this as one of the authorities relied on by the plaintiff but rejected the proposition, explaining that the analogy underpinning that decision does not apply to heirs under Muhammadan law because each heir takes a distinct share immediately on death.
Khurshetbibi v. Keso Vinayek Similar effect to Muttyjan — creditor's decree against assets obtained against some heirs in possession held binding on other heirs not impleaded. The court noted it as supporting authority relied upon by the plaintiff but disagreed with its application for the reasons explained (separate shares under Muhammadan law; representation principle inapplicable).
Davalava v. Bhimaji Dhondo Held that when a mortgagee obtains a decree and possession as against some heirs and sells the whole property in execution, heirs not on record cannot object that they are not parties to the record; principle applied to both Hindu and Muhammadan families. The Court reviewed the facts from this decision but did not accept the principle as justifying the plaintiff's case here; it treated the decision as one of the authorities relied upon and proceeded to explain why the mortgage/equity-of-redemption reasoning is not sufficient to bind non-parties absent opportunity to contest.
Virchand Vajikaranshet v. Kondu Division Bench of Bombay High Court held that where a suit is brought in time to enforce payment of money specifically charged on the whole mortgaged property, the plaintiff could obtain a decree for sale of the whole property even though some heirs were impleaded after expiry of limitation. The opinion summarised this authority and treated it as one of the decisions advancing the contention that a decree could bind non-parties; the court rejected the reasoning and declined to follow it for the facts and principles stated in the judgment.
Assamathem Nessa Bibee v. Roy Lutchmeeput Singh (Calcutta Full Bench) Full Bench majority view was referred to as supporting the proposition that heirs not impleaded cannot have their shares adversely affected without being given an opportunity to contest. The opinion cited the Full Bench majority in support of the view that heirs who are not impleaded must be given an opportunity to contest and that a decree behind their back cannot bind their shares; the Court found this view persuasive on that point.

Court's Reasoning and Analysis

The court's analysis proceeded in stages and rejected each of the rationales relied upon by the plaintiff:

  1. Nature of decree: The court characterised the plaintiff's remedy as a "simple money decree" which could only be granted against defendants who were sued within the period of limitation applicable to the promissory note. Because Amar and Itwar were impleaded after the limitation period had expired, no decree could properly be passed against them.
  2. Representation and possession: The court rejected the contention that Jadu Nandan, being in possession of some assets of Sheo Narain, represented the whole of Sheo Narain's assets. The opinion emphasised that Jadu Nandan was sued as a legal representative of Sheo Narain and not in a representative capacity that would bind other heirs. The mere fact one heir was impleaded in time could not permit entry of a decree against other persons who were not defendants within time.
  3. Separate interests under Muhammadan law: The court analysed and distinguished the Hindu-widow analogy. It observed that a Hindu widow in possession may represent the whole estate (during her life the estate vests in her), but under Muhammadan law each heir inherits a separate and defined share immediately on death. Consequently one heir has no proprietary right in another heir's share and cannot be said to represent the estate of other heirs. Therefore the representation principle underlying some authorities does not apply to the case of Muhammadan heirs.
  4. Litigation posture and trespass: The court stated it knew of no principle permitting one Muhammadan heir in possession to litigate on behalf of all heirs. If one heir possesses property that includes the shares of others, that possession is, in relation to the other heirs' shares, that of a trespasser. A decree against a trespasser cannot be binding on the true owner; hence a creditor seeking to affect a particular heir's share must implead that heir to give him an opportunity to contest.
  5. Mortgagee's lien and equity of redemption: The court rejected the argument that, because a mortgagee has a lien and the equity of redemption devolves on heirs, a decree could bind all heirs even if some were not parties. The court explained that each heir inherits the equity of redemption in defined shares and each heir retains the right to redeem. That right can only be taken away if the heir has had an opportunity to contest the mortgagee's claim or the period for redemption has expired. Thus a decree for sale obtained without impleading an heir within the period of limitation cannot adversely affect that heir's inherited estate.
  6. Assessment of authorities: The court reviewed the authorities the plaintiff relied on (Muttyjan, Khurshetbibi, Davalava, Virchand), set out the grounds on which those cases rested (Hindu-widow analogy; treating creditors' suits as administration suits; enforcement of mortgagee's lien), and concluded that none provided sound justification for treating a decree against some heirs as binding on other heirs not impleaded within the limitation period.

Holding and Implications

Final Holding: The revisional court dismissed the application and upheld the consequence that the decree could only be executed in respect of the assets of Sheo Narain that were in the hands of Jadu Nandan; the decree could not be made effective against assets in the possession of Amar Jati and Itwar Jati who were impleaded after the expiry of the period of limitation.

Implications:

  • The direct practical effect is that the plaintiff's decree is executable only as against the assets of Sheo Narain in the possession of the defendant who was sued within the period of limitation (Jadu Nandan); assets held by other heirs impleaded after limitation cannot be attached or sold in execution of that decree.
  • The court expressly rejected the application of the Hindu-widow analogy, the notion that creditors' suits automatically operate as administration suits binding all heirs, and the mortgagee-lien rationale as justifications for binding non-parties under Muhammadan succession law in the circumstances of this case.
  • The decision emphasizes that where heirs inherit defined shares under Muhammadan law, each heir must be given an opportunity to contest claims affecting his share; absent impleading of a particular heir within limitation, that heir's share cannot be adversely affected by a decree obtained against other heirs.
  • The judgment concludes the revision by dismissing the application with costs. The opinion does not purport to create a broader new rule beyond the reasoning applied to the facts before the Court.

Show full summary ...

    Manni Gir v. Amar Jati

    Iqbal Ahmad, J.:— This is an application in revision against a decree passed by a court of small causes in a suit brought by the plaintiff for the recovery of a sum of Rs. 306-8-0 on the basis of a promissory note dated the 16th of August, 1931, executed by one Sheo Narain Jati. Sheo Narain died before the institution of the suit and the plaintiff impleaded one Jadu Nandan Jati as the sole defendant in the suit.

    It was alleged in the plaint that the loan was taken by Sheo Narain in the capacity of the mahant of a particular math with a view to defray the expenses of the math, and the plaintiff accordingly prayed for a decree declaring his right to realise the amount due to him from the math property. The learned small cause court Judge however held that the allegation that the debt was taken for the purposes of the math was not proved, and, as such, the plaintiff was not entitled to realise the amount due to him from the math property. This decision of the learned Judge is not assailed before me.

    Jadu Nandan Jati contested the suit inter alia on the ground that two persons named Amar Jati and Itwar Jati were necessary parties to the suit. The two last named persons were then added as defendants, but this was done after the expiry of the period of limitation for the recovery of the amount due on the basis of the promissory note.

    Amar Jati and Itwar Jati also contested the suit and the learned Judge dismissed the claim as against them on the ground that they were impleaded as defendants after the expiry of the period of limitation. The claim against Jadu Nandan Jati was decreed; but the decree was confined in its operation to the assets, if any, of Sheo Narain in the hands of Jadu Nandan.

    The plaintiff being dissatisfied with the decree of the learned small cause court Judge has come up in revision to this Court and it is contended on his behalf that as Jadu Nandan was in possession of some of the assets of Sheo Narain the court below should have passed a decree against all the three defendants, notwithstanding the fact that two of those defendants were impleaded in the suit after the expiry of the period of limitation. The argument is that as the decree passed in the plaintiff's favour for recovery of the debt due from Sheo Narain could only be realised from the assets of Sheo Narain, and as Jadu Nandan was in possession of some of those assets, he must be deemed to have effectively represented the entire assets left by Sheo Narain, and accordingly the plaintiff was entitled to a decree entitling him to realise the decretal amount from the assets of Sheo Narain, irrespective of the fact whether those assets were or were not in possession of Jadu Nandan. In other words it is argued that the suit was in substance a suit for recovery of the money claimed from the assets of Sheo Narain and was not against any defendant in his personal capacity, and as one of the persons in possession of those assets was sued within the period of limitation, an effective decree executable against the entire assets of She Narain could be and ought to have been passed notwithstanding the fact that some of the defendants were brought upon the record after the expiry of the period of limitation. In support of these contentions reliance has been placed on the decisions in Muttyjan v. Ahmed Ally(1), Khurshetbibi v. Keso Vinayek(2), Virchand Vajikaranshet v. Kondu(3) and Davalava v. Bhimaji Dhondo(4). In my judgment there is no force in the contentions advanced on behalf of the plaintiff applicant.

    The decree prayed for by the plaintiff was a simple money decree and the plaintiff's claim could be decreed only against those defendants who were sued before the expiry of the period of limitation. As Amar Jati and Itwar Jati were impleaded as defendants after the period to bring a suit on the basis of a promissory note had expired, no decree could be passed against them. Jadu Nandan was sued as a legal representative of Sheo Narain and not in a representative capacity. The mere fact that Jadu Nandan was impleaded as a defendant within time could not, therefore, warrant the passing of a decree against persons who were not made defendants till the period of limitation for the suit had expired. The plaintiff no doubt was entitled to a simple money decree against the legal representatives of Sheo Narain and to realise that decree from his assets. But if more than one person was in possession of those assets, every one of those persons was, to the extent to which he was in possession of the assets, a legal representative of Sheo Narain. If the plaintiff did not sue some of the legal representatives within the period of limitation, the decree could have no efficacy against them and their possession over the assets could not be disturbed in execution of the decree by which they were not bound. In the case before me the decree no doubt is executable so far as the assets of Sheo Narain in the hands of Jadu Nandan are concerned; but as no decree has been or could be passed against the other two defendants, the assets in their possession cannot be attached and sold in execution of the decree obtained against Jadu Nandan alone.

    The cases relied upon by the learned counsel for the plaintiff applicant are authorities for the proposition that a decree with respect to a debt due from a deceased Muhammadan obtained against only some of his heirs is binding on his other heirs notwithstanding the fact that those other heirs were not impleaded as defendants in the suit. With all respect I am unable to agree with these decisions.

    In Muttyjan v. Ahmed Ally it was held that when a creditor of a deceased Muhammadan sues the heir in possession, and obtains a decree against the assets of the deceased, the suit is to be looked upon as an administration suit, and those heirs of the deceased who have not been made parties cannot, in the absence of fraud, claim anything but what remains after the debts of the testator have been paid. To the same effect is the decision in Khurshetbibi v. Keso Vinayek. In these two cases the creditor had obtained a simple money decree against the assets of a deceased Muhammadan only against some of the heirs of the deceased who were in possession of the estate, and the other heirs, who were not in possession, were not impleaded as defendants to the suit.

    In Davalava v. Bhimaji Dhondo the facts were as follows. One Nur Saheb, a Muhammadan, mortgaged some land to a man named Bhimaji Dhondo. Nur died leaving a widow, a son and two daughters as his heirs. The mortgagee brought a suit against the son “represented by his mother” for possession of the land as owner in pursuance of a certain clause in the mortgage deed and obtained a decree and got possession. Thereafter the daughters brought a suit for redemption of the mortgage, contending that they were not bound by the decree for possession as they were no party to the same. The suit was dismissed and it was held that “When in a mortgage suit the debt is due from the father, and after his death the property is brought to sale in execution of a decree against the widow or some of the heirs of the mortgagor, and the whole property is sold, then the heirs not brought on the record cannot be permitted to raise the objection that they are not bound by the sale simply because they are not parties to the record. This principle of law applies as much to a Hindu family governed by the Mitakshara law as to a Mahomedan family.”

    In Virchand Vajikaranshet v. Kondu a mortgagee under a simple mortgage brought a suit for sale of the mortgaged property after the death of the mortgagor who was a Muhammadan. The mortgagor had left a widow, a son and two daughters as his heirs. But originally only the son was impleaded as a defendant to the suit. On a plea being raised on behalf of the on that the deceased mortgagor had left other heirs, the widow and the two daughters were also brought upon the record as defendants, but this was done after the period of limitation for the suit had expired. Both the trial court and the first appellate court dismissed the claim for sale of the share of the defendants who were added after the expiry of the period of limitation. But a Division Bench of the Bombay High Court decreed the claim of the plaintiff for the sale of the shares of the subsequently added defendants as well. The learned Judges observed that as the suit was properly brought within the period of limitation to enforce payment of money that was specifically charged on the whole mortgaged property, and the property was liable to be sold in satisfaction of the mortgage in priority to the satisfaction of any interest derived from the mortgagor subsequent to the date of the mortgage, the plaintiff was entitled to a decree for the sale of the whole property “in the hands of any heir of the mortgagor” even though some of the heirs were impleaded as defendants after the expiry of the period of limitation.

    The decisions quoted above are based on one or other of the following grounds:

    (1) Following the analogy of the Hindu law in the case of a Hindu widow, the defendants in the former suit may be considered as having been sued in their representative character only, and therefore the decision binds the whole property left or mortgaged by the deceased even though only some of his heirs were impleaded as defendants within the period of limitation.

    (2) All creditors' suits are in the nature of administration suits, and therefore the heir who is sued effectively represents the other heirs who are not parties to the suit or who are made defendants after the expiry of the period of limitation.

    (3) On the death of a deceased mortgagor it is only the equity of redemption that is inherited by the heirs, and as the mortgagee has a lien on the property he can enforce that lien over the whole property, even though some of the heirs who have inherited the equity of redemption are not parties to the suit.

    I regret that none of the grounds noted above appears to me sound.

    The analogy of a decree obtained against a Hindu widow has no application to a decree obtained only against some of the heirs of a deceased Muhammadan. A Hindu widow in possession of her husband's estate represents the entire estate, and therefore a decree obtained against her without collusion or fraud binds the entire reversioners, for the simple reason that during the continuance of her possession the entire estate vests in her. During her lifetime no reversioner is entitled to possession of the estate. She is during her lifetime the owner of the estate, and therefore the decree obtained against her binds the estate. But under the Muhammadan law each heir inherits a separate and defined share in the estate left by a deceased Muhammadan. One heir has no right or interest in the share inherited by another heir and can in no sense be said to represent the estate that has devolved on the other heirs. The estate left by a Muhammadan at the time of his death vests immediately in each heir in proportion to the shares ordained by Muhammadan law. It follows that the interests of each Muhammadan heir is distinct and separate and the principle of representation can have no application to such a case. The decree obtained against one heir cannot, therefore, be binding on the share inherited by another heir.

    Similarly I am not aware of any principle of law that entitles one of the Muhammadan heirs in possession to stand as a litigant on behalf of all the other heirs, and a suit against only some of the heirs, unless clearly framed as an administration suit, cannot be regarded as such. If one of the heirs takes possession of all the properties left by the deceased, his possession qua the shares of the other heirs must be in the capacity of a trespasser, and a decree obtained against a trespasser cannot be binding on the true owner. If a creditor wants to enforce his claim against the share of a particular heir, he must give that heir an opportunity of contesting the validity of his claim, and this can be done only by impleading that heir as a party to the suit. If some of the heirs of a deceased Muhammadan are not impleaded as defendants their shares in the inheritance cannot be adversely affected or be bound by a decree obtained behind their back without giving them an opportunity of contesting the claim. This was the view taken by the majority of the Judges in the Full Bench decision of the Calcutta High Court in Assamathem Nessa Bibee v. Roy Lutchmeeput Singh.

    Similarly the last ground noted above does not in my judgment justify the decisions above referred to. It is true that on the execution of a mortgage the mortgagee's interest vests in the mortgagee and it is only the equity of redemption that is left with the mortgagor, which, on his death, devolves on his heirs, but every mortgagor has a right to redeem the mortgage and this right can only be taken away either after the period for redeeming the mortgage has expired, or an opportunity has been afforded to the owner of the equity of redemption to redeem the mortgage and he has failed to avail himself of the opportunity. A decree for sale obtained behind the back of a mortgagor cannot obviously be binding on him. On the death of a deceased Muhammadan mortgagor the equity of redemption owned by him devolves in specified shares on his heirs, and each heir, to the extent of the share inherited by him in the equity of redemption, occupies the position of a mortgagor. He has, therefore, the right to redeem the mortgage and this right can only be taken away from him if he has been given an opportunity of contesting the validity of the mortgagee's claim. If he is not impleaded as a defendant to the suit on the mortgage within the period of limitation the estate inherited by him cannot be adversely affected by the decree passed in the suit.

    For the reasons given above I dismiss this application with costs.

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    Comments

    Manni Gir v. Amar Jati
    (Oct 21, 1935)