N.K Muhammed Sulaiman Sahib v. N.C Muhammed Ismail Sahib And Others

Bhimasankaram, J.:— The plaintiff is the appellant. The first defendant in the suit is his elder brother. They claim to be the sons of the deceased Muhammad Khadir Miran Saheb by his third wife, Mahaboob Bi, who is the second defendant in the suit. The third defendant is a daughter of Miran Saheb by his first wife. The fourth defendant obtained a mortgage for Rs. 20,000 on 21st August, 1933, from the late Miran Saheb and two others—one of whom is the 26th defendant, and who is stared to be a son-in-law of Miran Saheb. After the death of Miran Saheb, in or about December, 1937, the fourth defendant instituted a suit for sale of the mortgaged properties in the Court of the Subordinate Judge of Chittoor which was numbered as O.S No. 87 of 1940 impleading the two co-mortgagors of Miran Saheb and the three widows and the daughter of Miran Saheb as parties. The usual preliminary decree for sale was followed by a final decree and the properties covered by the mortgage were sold in execution proceedings in 12 lots and purchased on 16th December, 1942, by the fourth defendant for the amount of his decree which was for about Rs. 34,215. It would appear that soon afterwards in pursuance of an agreement, dated 13th October, 1942, the fourth defendant sold the properties to the 20th defendant who in his turn sold portions out of it to the other defendants later. The suit out of which this appeal arises originated in the form of a petition for leave to sue in forma pauperis numbered as O.P No. 12 of 1950 on the file of the Sub-Court, Chittoor. The leave applied for having been granted, it was taken on file as O.S No. 125 of 1950. The plaintiff's original claim was for the recovery of his 27/4th share in the properties of his father. When it was pointed out by the contesting defendants that at best he could only claim redemption of his share, he inserted in the plaint an alternative prayer for redemption. The plaint also contained an allegation that the omission to implead the plaintiff and his brother in the previous suit was deliberate and fraudulent on the part of the fourth defendant.

2. The defendants 1 to 3 remained ex parte. The other defendants (excepting the 20th defendant who supported the plaintiff) contended firstly that the plaintiff and the first defendant are not the sons of the late Miran Saheb, that even assuming that they were, the proceedings which took place in the previous suit are binding upon them, because the fourth defendant, after making bona fide enquiries as to who Were the heirs of late Miran Saheb had impleaded his three widows and daughter in the honest belief that they were all his heirs and that they sufficiently represented the estate of the deceased. The trial Court found that the plaintiff is the son of Miran Saheb. It also found that the fourth defendant as the plaintiff in O.S No. 87 of 1940 acted bona fide in impleading the widows and the daughter and did not deliberately and dishonestly exclude the plaintiff and the first defendant from the previous suit. It held further that in the circumstances, the sale which had taken place in execution of the decree, of the mortgaged properties belonging to Miran Saheb was binding upon the plaintiff and his brother.

3. In the present appeal, counsel for the appellant has contested both the findings against him. He has challenged the correctness of the finding as to the fourth defendant's bona fides. He also argued that even if the fourth defendant had acted bona fide, the right to redeem which became vested in his client could not be extinguished as the result of any proceeding to which he was not made a party.

4. We shall dispose of the contention as to bona fides first. The second defendant, who is the mother of the plaintiff and the first defendant, was, it must be noticed, made a party to O.S No. 87 of 1940. She did not mention the existence of her sons and ask that they should be impleaded. The evidence shows that the present plaintiff and his brother were infants at the time when chat suit was instituted and could not have been themselves in effective possession of the estate of Miran Saheb, so as to put the creditors of the estate on notice of their rights. D.W 2 who is the father-in-law as well as the brother-in-law of the fourth defendant and who claims that he had been looking after the estate of the fourth defendant during his minority and then later, of his litigation, says in his evidence that he made all possible enquiries to find out who the heirs of the late Miran Saheb were. It would appear that enquiries were made of one Balaramayyer, a family friend of Miran Saheb and also of one Krishna Rao. This evidence of D.W 2 is supported by the evidence of D.W 3 who is a clerk of D.W 2, and also by that of D.W 4, who is the 20th defendant and who says that he was a friend of Khader Miran. There were proceedings before the Debt Reconciliation Board taken by the widows and the daughter claiming to be the heirs of the deceased, but the present plaintiff and his brother were not parties thereto. We can conceive of no reason why, if the fourth defendant was aware of their existence, he should have failed to implead the infant sons of Miran Saheb. In the circumstances, we are not prepared to differ from the conclusion reached by the learned Subordinate Judge that the fourth defendant made diligent and bona fide enquiries as to who the heirs of Miran Saheb were and impleaded in his suit all whom he believed to be his heirs.

5. Before we proceed to consider the main question in the appeal, we may note that an attempt has been, made by the learned counsel for the respondents to impugn the correctness of the finding of the lower Court that the plaintiff is the son of Miran Saheb by the second defendant. Besides the oral evidence of P.Ws 2, 3 and 4 who claim to have known Miran Saheb for quite a long time and say that they were present when he married the second defendant and that the plaintiff is their child —evidence which, the lower Court points out, was not assailed as being interested or unreliable— there is the evidence afforded by Exhibit A-1, which is a copy of the Birth Register maintained by the Chittoor Municipal Office, Exhibit A-2, a copy of the Vaccination Register and Exhibit A-3 which is a record-sheet relating to the plaintiff granted by the Headmaster, Municipal Boys' School, Chittoor, in all of which the plaintiff is described as the son of Miran Saheb. There is no evidence on behalf of the defendants to throw doubt upon the correctness of these entries. We see no reason to differ from the finding of the lower Court on this point.

6. We shall now turn to the consideration of the most important question in this appeal, a question which we must confess we should have found considerable difficulty in answering but for the guidance afforded by decided cases. Counsel for the appellant has not questioned the correctness of the authorities which have laid down that where a defendant dies pending a suit and a few only out of several legal representatives of the deceased are ordered by Court to be brought on record under Order 22, Civil Procedure Code, at the instance of the plaintiff and a decree is passed, any execution proceedings that may take place in pursuance of that decree are binding upon all his legal representatives. The position is also not disputed that where execution proceedings are taken in pursuance of the decree after the death of a judgment debtor against some only of his heirs, they will be binding upon all the heirs. A sale of the estate of the deceased in either case, it is not disputed, would bind all the legal representatives, although some of them might not have been placed on record. Bat, it is argued that the position is different when a suit ib instituted after the death of a debtor. If a plaintiff in such a case does not implead all the heirs, then it is said he takes the risk of the decree not being binding upon those whom he had not made parties.

7. This general argument is sought to be reinforced by the special circumstances of the present case in which the parties are Mahomedans. The point sought to be made is that whatever may be the position of Hindu heirs, each Muslim heir inherits a separate and distinct interest, and such an interest cannot be affected by any doctrine of representation of the estate. One Muslim heir, it is pointed out on the authority of Khadersa Hajee Bappu v. Puthen Veettil Ajissa Ummah (1910) 20 M.L.J 228, I.L.R 34 Mad. 511 (F.B), a Full Bench decision of the Madras High Court, does not represent another.

8. We shall first consider the question as to whether the doctrine of representation applies only to pending suits and execution proceedings and cannot apply to a suit commenced after the death of the person who should have been made the defendant, if he had been alive. The latest case of the Madras High Court on this matter which has been brought to our notice but of which only a short-note has been made in Shanmugam Chettiar v. Govindaswami Chettiar (1952) M.W.N (N.R.C) 30 is in the terms:

“Civil Procedure Code, Order 34, rule 1—Mortgage Suit—Mortgagor's interest imperfectly represented—Decree and sale—Effect.

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 property and a decree is obtained on that footing without the legal representative disclaiming any liability, the decree would be binding on any other legal representative that might be in existence.”

9. From the above note, it would appear that the case was one in which the suit was commenced after the death of the mortgagor, because, in the catch-words, no reference is made to Order 20, Civil Procedure Code, which should apply if the death of the mortgagor took place pending a suit but to Order 34, rule 1, Civil Procedure Code, which deals with the constitution of a mortgage suit. As it appeared to us that the decision is on facts on all fours with those of the case before us, we required the parties to produce a certified copy of that decision, Shanmugam Chettiar v. Govindaswami Chettiar (1952) M.W.N (N.R.C) 30, and we have had the benefit of going through the judgment of the learned Judges since preparing our judgment.

10. Apart from this unreported case, there is, in our opinion, abundant earlier authority, to which reference has been made by the learned Judges, agiinst the appellant although we are far from saying that, if the matter were considered on principle, there is not much to be said in support of his contention. The latest of reported decisions in the Madras High Court was the one in Chaturbujadoss Kushaldoss & Sons v. Rajamanicka Mudali (1930) 60 M.L.J 97, I.L.R 54 Mad. 212, a case which we propose to discuss at some length. In that case, a person died leaving a will whereby he bequeathed his estate to his nephew. The testator's widow disputed the will. A creditor of the testator who was unaware of the will and who naturally took the widow to be the latter's proper legal representative brought a suit against her in which a decree was passed directing her to pay the plaintiff's debt out of her husband's assets in her hands. That decree was executed against four items of the property belonging to the estate of the testator, two only of which were in the possession of the Widow. The learned Judges were dealing with the subsequent suit instituted by the nephew who sought a declaration that the attachment and sale of the properties of the testator were not binding on him in execution of the decree obtained against the widow, in any case, so far as they related to the items of property not in the possession of the widow. The headnote of the report is not very satisfactory in that it states a few only of the material facts and fails to bring out the complete effect of the decision. The learned Judges who decided the case delivered separate judgments but concurred in dismissing the suit. It was argued before them that the theory of representation of the estate of a deceased person should be confined to cases where a legal representative is brought on record in the course of execution proceedings. This contention was repelled by both the learned Judges. Madhavan Nair, J., observed at page 222 as follows:

“The question to be considered, whether it arises in the course of execution proceedings or in the course of the suit, is this: whether the estate of the deceased person was sufficiently represented by the legal representative who has been actually brought on record. I think the same principle should govern all cases where a wrong representative has been brought on record, whether such representative has been added in the course of the suit or in the course of the execution proceedings. The same consideration should apply also to a case where the suit itself is instituted against the wrong legal representative at the very commencement.”

11. In support of his view, thel earned Judge referred to Gnanambal Ammal v. Veerasami Chetty (1915) 29 M.L.J 698, which was a case where the suit itself was instituted against a wrong legal representative of a deceased debtor. He saw no reason why the principle of representation enunciated in Ramaswami Chettiar v. Oppilamani Chetti (1909) 19 M.L.J 671, I.L.R 33 Mad. 6, which was a case where the defendant died after the decree should not be applied to a case where the suit is instituted against a wrong legal representative. He pointed out, on the other hand that the reasoning upon which the decision in Ramaswami Chettiar v. Oppilamani Chetti (1909) 19 M.L.J 671, I.L.R 33 Mad. 6, was based applied with equal force to the commencement of a suit against a wrong legal representative. He extracted with approval a passage from the judgment of Sadasiva Ayyar, J., in Gnanambal Ammal v. Veerasami Chetty (1915) 29 M.L.J 698 in which that learned Judge had considered what was described as “the broad principle of the decision in Ramaswami Chettiar v. Oppilamani Chetty (1909) 19 M.L.J 671, I.L.R 33 Mad. 6, Reilly, J., who was the other learned Judge who participated in the decision in Cnatwbujadoss v. Rajamanicka Mudali (1915) 29 M.L.J 698, stated in his judgment that he agreed with his learned brother that the proper principle to be applied to the case before them was to be found in Ramaswami Chettiar v. Oppilamani Chetti (1909) 19 M.L.J 671, I.L.R 33 Mad. 6 and Ghanambal Ammal v. Veerasami Chetty (1909) 19 M.L.J 671, I.L.R 33 Mad. 6. Both the learned Judges supported that conclusion by a reference also to Kadir Mohideen Marakayar v. Muthukrishna Ayyar (1902) 12 M.L.J 368, I.L.R 26 Mad. 230, which is a case relating to Mahomedans. In this latter case the defendant died during the pendency of the suit and only one of his two sons was placed on record as his legal representative, nevertheless, the learned Judges held that the decree was binding upon the other son on the following reasoning:

“In our opinion, a person whom the plaintiff alleges to be the legal representative of the deceased defendant and whose name the Court enters on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit and in the absence of any fraud or collusion the decree passed in such suit will bind such estate.”

12. Commenting on this passage, Madhavan Nair, J., observed that this laid down a general principle which is not limited to pending suits and proceedings.

13. It has been forcibly argued before us that, no such general principle is exigible from the decision in Khadir Mohideen Marakayar v. Muthukrishna Ayyar (1902) 12 M.L.J 368, I.L.R 26 Mad. 230, and that it was based upon what the learned Judges characterise as

“the principle of representation which obtains under the English Law when it is necessary that the representative of a person deceased be made a party to a pending suit,”

a principle which, they point out, is reproduced in section 38 of the (Indian) Probate and Administration Act. Reference is made in particular to the passage in which their Lordships made the following observations:

“In our opinion, a person whom the plaintiff alleges to be the legal representative of the deceased defendant and whose name the Court enters on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit and in the absence of any fraud or collusion the decree passed in such suit will bind such estate. It will of course be open to any other person who is or claims to be the legal prepresen tative or one of the legal representatives of the deceased defendant to apply to have his name also entered on the record as a legal representative in the place of the deceased defendant… … 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 especially 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, 357 and 368 of the Civil Procedure Code though such person may be only one of several legal representatives or may not be the true legal representative. If the true legal representative or all the legal representatives do not intervene, it can be due only to his or their laches”.

14. The principle thus enunciated by the learned Judges it must be conceded was confined to pending proceedings, and based presumably on the impracticability and inexpediency of keeping judicial proceedings hanging fire indefinitely. But this narrow principle was broadened, however, in Gnanambal Ammal v. Veeraswami Chetty (1902) 12 M.L.J 368, I.L.R 26 Mad. 230, where the learned Judges extended it to a case of the commencement of a litigation. The head-note of this decision is as follows:

“Where a creditor of the estate ignorant of the true state of affairs, sued the widow in possession and the illegitimate son who would have been the legal representatives but for a will left by the debtor under which the 1st defendant was constituted executor and the plaintiff a legatee and obtained a decree and in execution, the property in possession of the widow was purchased by a stranger:

Held that the sale was binding against the plaintiff.”

15. Sadasiva Ayyar, J., in his judgment distinguished an earlier case reported in Kalliappan Servaikaran v. Varadarajulu (1915) 29 M.L.J 698, as one in which all that was decided was that the true legal representative could not after the decree be brought on record for the purpose of execution and, that the deceased debtor's property in his hands could not be attached and sold in the same suit. He also referred to a Calcutta case very similar to that and pointed out that both the cases referred to by him,

“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 deprived of their legitimate rights on bare technicalities where the merits are clearly in their favour.”

16. He then referred to the decision of their Lordships of the Privy Council in General Manager of the Raj Darbhanga v. Maharajah Coomar Ramput Singh (1909) 19 M.L.J 651, I.L.R 33 Mad. 75, as supporting his conclusion. He made also a reference to the decision in Ramaswami Chettiar v. Oppilamani Chetti (1872) 14 M.I.A 605, and made the remark already adverted to by us that “the broad principle” of that decision seemed to apply to the case before him. Napier, J., who was the other party to the decision in Gnanambal Ammal v. Veerasami Chetty (1902) 12 M.L.J 368, I.L.R 26 Mad. 230, contented himself by stating laconically that the case before them was covered by the decision in General Manager of the Raj Darbhanga v. Maharajah Coomar Ramput Singk (1909) 19 M.L.J 651, I.L.R 33 Mad. 75. The ratio decidendi however of the case in General Manager of the Raj Darbhanga v. Maharajah Coomar Ramput Singh (1909) 19 M.L.J 651, I.L.R 33 Mad. 75, (which Reilly, J., in Chaturbuja Doss Kushal Doss & Sons v. Rajamanicka Mudali (1872) 14 M.I.A 605, described as a case in which the facts have been obscurely stated) does not seem to support the conclusion reached in Gnanambal Ammal v. Veeraswami Chetty (1902) 12 M.L.J 368, I.L.R 26 Mad. 230, although in every subsequent case in which the principle of representation came in question that decision of the Judicial Committee has been referred to and relied on. But, this reliance was due rather to the approval recorded by their Lordships of an early case from Bengal than to the ratio of the decision itself. Now, in General Manager of the Raj Darbhaunga v. Maharajah Coomar Ramput Singh (1909) 19 M.L.J 651, I.L.R 33 Mad. 75, there was no dispute raised by a person alleging that he was improperly ignored in an earlier proceeding. The controversy was between two creditors of one Gourpershad one of whom, the respondent before their Lordships, had obtained a decree against him in his life-time while the other (the appellant) obtained his decree after the death of Gourpershad against the widow of Gourpershad, although he had instituted the suit against her as well as her son represented by her as guardian, the defendants successfully pleading that the son was not the heir of his father as he had been adopted into another family. The appellant had, however, also obtained a decree in a later suit in which it was declared chat the son Hurpershad was the heir to his father. In execution of the appellant's decree, the estates of Gourpershad were sold and purchased by the appellant. The certificate of sale stated that the right and interest of the widow was sold but to this was added a note that the sale took place by virtue of the decree passed by the District Court in whch it had been declared that Hurpershad was the heir. The respondent came upon the scene thereafter and trying to base himself upon the decree in which the appellant had obtained the declaration that Hurpershad was the heir, commeneed proceedings against Hurpershad and against the very estates purcha ed by the appellant, which, he alleged, were in the hands of Hurpershad. The appellant objected stating that they had already been sold under his decree. Their Lord-sships held that the execution proceeding in favour of the appellant.

“if fairly looked at, amounts to this,— that the estate of Gourpershad was sold under that decree in execution for 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”.

17. In stating so, they observed that there was a distinct reference in the certificate of sale to the decree obtained by the appellant from the Zillah Court that Hurpershad was the heir. They then observed as follows:

“If that be so, the question arises, whether the respondent, the plaintiff in the suit below, has any ground upon which he can come in and impeach the sale? It appears to their Lordships that he can claim only what interest remained in Hurpershad, and that substantially the proceedings would be a bar to any claim on the part of Hurpershad”.

18. Then they proceeded to observe that the declaratory decree obtained by the appellant was a mere decree inter partes and that the respondent could not claim to base himself upon it. They added that:

“as between the appellant and respondent, the appellant is entitled to and cannot be deprived of the benefit which has resulted to him from his greater diligence in enforcing his demand.”

19. Upto this point the decision, it is clear, rested not upon any general theory of representation but upon the character of the proceedings which took place and upon the effect of the certificate which was granted to the appellant. It was noteworthy that Hurpershad himself was stated to have been barred from making any claim to the estates; presumably because Hurp rshad was although maintaining that he was not the heir. He could not therefore at any time advance a claim that he was not represented in the execution proceedings. Towards the end of their judgment thie Lordships made the following observations which have constituted the basis for the theory of representation as developed in subsequent cases. These observations are as follows:—

“Their Lordships also desire to add, that they are unable to see any substantial distinction between this case and that of Johan Chunder Mitter v. Buksh Ali Soudagur (1900) 19 M.L.J 671, I.L.R 33 Mad. 6. They entirely agree in the principles expressed by Chief Justice Peacock in that case, and think that they govern the present case.”

20. Unfortunately, the report of the case thus approved by the Privy Council is not available to us and we have only reference to the case made in some of the subsequent reports, one of which in Chaturbhuja Doss & Sons v. Rajamanicka Mudali (1930) 60 M.L.J 97, I.L.R 54 Mad. 212, Madhavan Nair, J., gives the effect of that decision in Marshall's Bengal Appeal Cases 614 thus:

“In that case, which is the earliest one mentioned in the Reports, it was held that the decree obtained against a Hindu widow for her husband's debt was binding on the son who was not a party to the suit. It would seem from the report that the plaintiff knew of the existence of the son when he sued the widow. The judgment shows that the question for consideration was whether the widow sufficiently represented the estate of the deceased.”

21. Reilly, J., summarised the effect of that decision in the following words:

“In that case a decree was obtained against a Hindu widow for her husband's debt, though he had left a son. It was held that the sale of her husband's property in execution of that decree was valid and bound the son. It does not appear that the widow ever set up any right against her son and the report shows that the plaintiff knew of the son's existence when he chose to sue the widow. What Peacock, C.J, emphasized in that case was that the debt was her husband's and the property sold was her husband's. The widow was treated as having sufficiently represented her husband's estate.”

22. The above discussion shows that most of the later decisions must be held to be based not so much upon the ratio of the decision in General Manager of the Raj Dhurbanga v. Maharajah Coomar Ramput Singh3, as upon that in Marshall's Bengal Appeal Cases 614 which was referred to with approval by their Lordships in Darbhunga case3. In any case, the subsequent decisions referred to above are clear and binding upon us. In Chaturbhujadoss case (1930) 60 M.L.J 97, I.L.R 54 Mad. 212, Reilly, J., seems to have made a new point when he said:

“In many later cases the essential question whether the deceased's estate has been sufficiently represented appears to have been obscured by other considerations, and legal representatives have been treated as if it were their own rights and not the rights of the person whom they represent that were in question”.

23. There is also another direction in which the learned Judges in Chaturbhuja Doss Kuskaldoss & Sons v. Rajamanicka Mudali (1930) 60 M.L.J 97, I.L.R 54 Mad. 212, 220, extended the principle of representation. They held that the fact that the widow was not in possession of two of the items sold made no difference to the validity and effectiveness of their sale. It may be noted that some of the earlier cases justified the principle of representation on the footing that the suing creditor could only take into account the person who was in actual possession of his debtor's estate as the person prima facie entitled to the property and could not go on making an elaborate enquiry as to whether he had left a will and who were all the numerous heirs entitled to the estate. But in Chaturbhuja Doss case (1930) 60 M.L.J 97, I.L.R 54 Mad. 212, 220, Reilly, J., unequivocally stated that:

“the question Whether the representative on record is actually in possession of any of the deceased's property is not of importance, except as throwing light on the question of the good faith of the person who sued him”.

24. It is unnecessary for us to consider in the present case whether the learned Judge was right in his view that the question whether the Representative on record is actually in possession of any of the deceased's property is of little importance, because it is not denied in the present case that the heirs of Miran Sahib who were impleaded in O.S No. 47 were in possession of the properties at the time of the sale. The learned Judge further remarked:

“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.”

25. Madhavan Nair, J., also expresses the view that the decree obtained in similar circumstances is, as such, binding upon the representative who is not impleaded. The earlier cases seem to have applied the doctrine only to execution proceedings and the consequential sale following upon such a decree, as stated by Sadasiva Ayyar, J., in Gnanambal Ammal v. Veerasami Chetty (1872) 14 M.I.A 605, in the passage already cited. It is also not necessary for us to say whether the learned Judges were right in enunciating the principle of representation in such broad terms. Suffice it to say that in so far as the learned Judges held that the principle of representation applies to cases where suits are instituted against a deceased obligor's heirs, we consider that they only followed the decision in Gnanambal Ammal v. Veerasami Chetty (1872) 14 M.I.A 605, which seems to be the first case which took that view. We think it is too late to disregard this current of authority particularly as it seems to have been followed in the latest case on the subject brought to our notice.

26. We may also note that these decisions have been considered and followed by the Orissa High Court in Sarat Chandra Deb v. Bichitrananda Sahu (1930) 60 M.L.J 97, I.L.R 54 Mad. 212. Jagannadhadas J., one of the learned Judges, discussed the authorities at considerable length and reached the conclusion which may be stated in his own words:

“Where a mortgagee institutes a suit bona fide against the person in possession of the estate of the deceased mortgagor, who is in such possession in assertion of a claim to succeed to that estate and where a person purchases the mortgaged property bona fide in execution of that decree, such purchaser gets the full title to the mortgaged property by virtue of such sale and the real heir is bound thereby and that his only remedy, if at all, in a proper case is to get the sale set aside by appropriate proceedings in time”.

27. We shall now consider whether the principle does not apply to cases where the parties are Mohamedans. It is noteworthy that the parties in the decision reported in Kadir Mohideen Marakkayyar v. Muthukrishna Ayyar (1915) 29 M.L.J 698, are Mahomedans and no point was made of that circumstance in the judgment. It is true that in Bhagirathi Bai v. Roshanbi A.I.R 1951 Orissa 212, a Divisional Bench of the Bombay High Court protested against the extension of the principle of representation to cases of Muslim heirs and one of the learned Judges pointed out that the idea underlying the decisions to which he referred is

“the idea of substantial representation and the idea arises out of the peculiarities of the Hindu joint family where the property is family property, not individual property; and where representation is to be of the family not of individuals.”

28. The other learned Judge stated that the rule of representation governing the joint families of Hindus should not be extended to the heirs of deceased Maho-medans. The case before them seems to have been, however, actually decided on the ground that the heir—the appellant before them—was specifically excluded and such an exclusion, in the view of the learned judges, disabled the creditor who had obtained the decree from contending that it was binding upon the person whom he had deliberately excluded. It is true, however, that the learned Judges disapproved of the observations cf Ranade, J., in Davalava v. Bhimaji Dhondo (1902) 12 M.L.J 368, I.L.R 26 Mad. 230, wherein the learned Judge had laid down that the principle 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”

could be applied to Mahomedans:

“It is, however, contended that this ruling is based on the peculiar constitution of a Hindu joint family, and that the analogy does not hold good in the case of Mahomedans. There is, however, no foundation for such a contention… … An Asamtham v. Roy Lutchmeeput I.L.R (1943) Bom. 412, this point was expressly considered by the Full Bench, and both the Chief Justice and Markby, J., held that the Mahomedan Law is, if possible, more strict in its recognition of the obligation to pay debts. The succession is of the kind known as universal, and any one of the heirs of a deceased person stands as litigant on behalf of all the others with respect to anything due by the estate of the deceased. The creditor can seek his relief against one of several heirs in a case when all the effects are in the hands of that heir.”

29. The learned Judges in Bhagirathi Bai v. Roshanbi A.I.R 1951 Orissa 212, stated that this view of Ranade, J., as to the rule of Mahomedan Law has not been accepted by the Madras and the Allahabad High Courts. But the learned Judges in Bhagirathi Bai v. Roshanbi A.I.R 1951 Orissa 212, seem to have overlooked the fact that the case in Khairajmal v. Daim (1895) I.L.R 20 Bom. 338, in which the parties were Mahomedans was a Privy Council case. Only one of the learned Judges refers to Khairajmal v. Daim (1895) I.L.R 20 Bom. 338, and even he notices merely the general remarks of their Lordships at page 314 of the report about decrees being prima facie binding only on parties thereto. In our opinion, the case in Khairajmal v. Daim (1895) I.L.R 20 Bom. 338, is conclusive on the question. The facts of that case are rather complicated. It is sufficient to deal with one aspect of that case for the present purpose. One of several mortgagors died pending a suit for sale upon the mortgage. Shortly afterwards at the time of his death, there was an agreement of reference of the suit to arbitration signed by him. Shortly after his death, his two widows and his minor son represented by his mother Were named as legal representatives on record. There was evidence to show that they were served with summons to appear and that they were prepared to accept the award of the arbitrator and they were also served with notice of the Sale. On these facts, the Privy Council held that the other heir of Nabibaksh was bound by the sale which took place in pursuance of the award and the decree thereon. Their Lordships observed thus:

“Their Lordships think that Nabibaksh's estate was sufficiently represented for the purpose of the suit although the name of his infant daughter was omitted, and that his share of the equity of redemption in the property sold in execution of the decree in No. 372 of 1870 is therefore bound by the sale, and irredeemable”.

30. This decision, it is true, applied the representation theory only to a case after the institution of the suit. But, if it is to be held that the theory of representation at all applies to the institution of suits just as it applies to pending suits and execution proceedings, then this case is authority for holding that there is no reason why it should not apply to Muslims as well.

31. We may also refer in this connection to the observations in Kunhi Kalanda Beari v. Kunhipakki1, of Venkatasubba Rao, J., wherein the learned Judge after quoting an extract from the Judgment in Kadir Mohideen Marakkayar v. Muthukrishna Aiyar1, which was a case of a Mohamedan family, as we have already pointed out, observed as follows:

“It is noteworthy that in the judgment, it is stated that in the case of a Muhammadan family, there is a special need to apply this rule. Otherwise when a Muhammadan dies leaving innumerable heirs (as not infrequently happens) the omission to bring any one of them on the record may wholly vitiate the proceedings. I refer to this fact specially to show that the contention of Mr. Govinda Menon is without force, that the theory of representation, while it holds good in the case of Hindu joint families, is inapplicable where the parties heppen to be Muhammdans”.

32. In our view, therefore, there is no justification for limiting the rule of representation to Hindu heirs. Apart from the observations in Kadir Mohideen Marakkayar v. Muthukrishna Aiyar (1904) L.R 32 I.A 23, I.L.R 32 Cal. 296, 314 (P.C), and in Kunhi Kalanda Beari v. Kunhipakki1, to which We have referred, the decision of the Privy Council in Khiarajmal v. Daim (1929) 57 M.L.J 712, is to our mind, decisive on this point. It is to be regretted that this aspect of the case was not brought to the notice of the learned Judges in Bhagirathi Bai v. Roshanbi (1902) 12 M.L.J 368, I.L.R 26 Mad. 230.

33. We must also notice the contention of Mr. Narasinga Rao for the appellant that whatever may be the position as regards a simple money decree and execution proceedings taken thereunder, the valuable right to redemption vested in his client as heir and secured to him by the appropriate provisions of the Transfer of Property Act must remain intact and enforceable having regard, in particular, to the mandatory provisions as to the frame of a suit for sale of a mortgaged property instituted by a mortgagee contained in rule 1 of Order 34, Civil Procedure Code. He refers to cases in which it has been held that a decree for sale obtained by a mortgagee without impleading one or more persons interested in the equity of redemption does not bind him or them. But, if the theory of representation is sound, we can see no ground in principle why the right of redemption which, to be sure, is no higher than an absolute right of property should be unaffected by it. If a heir's right to unencumbered property could be lost by an execution sale pursuant to a decree against a wrong representative or against persons who do not completely represent the estate of a deceased debtor, what reason could there be to hold, that a lesser right should remain unaffected? We see none, nor is direct authority wanting against the appellant's contention. The cases in Shanmugam Chettiar v. Govindaswami (1929) 57 M.L.J 712 and Gnanambal Ammal v. Veeraswami Chetti (1904) L.R 32 I.A 23, I.L.R 32 Cal. 296 (P.C), are cases of mortgage sales. We may also refer to the decisiondn Vythilingam Pillai v. Pankajathammal (1918) I.L.R 43 Bom. 412, although it is a decision of a single Judge and therefore not necessarily binding upon us. The decision in Davalava v. Bhimaji Dhondo (1952) M.W.N (N.R.C) 30, (S.A No. 1651 of 1948), also is a ease of an excluded mortgagor.

34. What is more, no decision making any such distinction as is contended for by Mr. Narasinga Rao has been brought to our notice. We are bound, therefore, to reject this contention also of the appellant.

35. Before concluding the discussion, we must refer to the decision in Sivabhagiam v. Palani Padayachi (1915) 29 M.L.J 698, which has been strongly relied upon by the counsel for the appellant as an authority binding on us. The head-note of the case is as follows:—

“A Hindu having mortgaged family property died leaving a widow and a son surviving him. The son died leaving a widow, the defendant. The mortgagee then sued the widow of the father, as his representative, and the property was sold and bought by the plaintiff in execution of the decree obtained against her. The plaintiff having been dispossessed by the defendant sued to recover the land:

Held: that the defendant was not bound by the decree or sale and that the plaintiff was not entitled to recover.”

36. In the course of their Judgment, Turner, C.J, and Muthuswami Ayyar, J., observed as follows:

“In order to obtain an order for sale binding on the appellant, she should have been impleaded. She was entitled to have notice of the claim to resist it if it was not a proper charge on the estate she had inherited from her husband, or to satisfy it and save her interest from sale if the charge was a proper one”.

37. We cannot help remarking that these observations have considerable force. But, it seems to us that in view of the later authorities based particularly upon the Privy Council decision in Khiarajmal v. Daim (1939) 1 M.L.J 416, this case cannot be regarded as good law. It is interesting to note that the learned Judges explained the case in the General Manager of the Darbhunga Raj v. Maharajah Coomar Ramput Singh (1895) I.L.R 20 Bom. 338 on the principle that the son who had successfully pleaded that he was not his father's representative and that his mother was the sole heiress, could not be equitably allowed subsequently to rely upon his representative character to defeat a sale in execution of the decree. But the learned Judges failed to notice the effect of the observations of the Privy Council approving the decision of Peacock, C.J, in Johan Chunder Mitter v. Buksk Ali Soudagur (1881) I.L.R 4 Mad. 401. It seems to us that this decision is opposed to the theory of representation altogether. It is based upon the principle that no party is bound by any proceeding taken behind his back, a principle which the Judicial Committee described in Khiarajmal v. Daim (1939) 1 M.L.J 416, as an elementary proposition. Nevertheless, the Committee held that the daughter of Nabibaksh was bound by proceedings taken against her father's estate to which she Was not made a party.

38. In view of What we consider to be clear-cut authorities in support of the proposition contended for by the respondents, we have not discussed the matter on principle. We may, however, state that there are arguments of great force that could be urged in support of the view propounded for the appellant and that if the matter were res Integra it is difficult to say, as observed by Abdur Rahman, J., in Vythilingam Pillai v. Pankajathammal (1904) L.R 32 I.A 33, I.L.R 32 Cal. 396 (P.C), ‘as to what view one would have formed’. The result is that this appeal must fail and it is accordingly dismissed with costs. The appellant will pay the Government the Court-fee payable on the Memorandum of Appeal.

39. Appeal dismissed.