PETITIONER: DAYA RAM AND OTHERS Vs. RESPONDENT: SHYAM SUNDARI DATE OF JUDGMENT: 08/09/1964 BENCH: AYYANGAR, N. RAJAGOPALA BENCH: 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 JUDGMENT:
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 can,not 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 Courts 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.
243