JUDGMENT
Srinivasa Aiyangar, J.
1. The suit from which this second appeal arises was one instituted by the plaintiff, respondent 1, for the purpose of setting aside a mortgage decree obtained by defendants 2 and 3 and recovering the properties which were at the auction held in execution of such decree purchased by defendant 1. Defendant 1 is appellant 1 before us. The plaintiff’s claim was that under a will of Honnappa his second widow Gangamma obtained the suit properties absolutely, that she in her turn by her will bequeathed these items of property to the plaintiff, that the mortgage suit, though it related to a mortgage made by Honnappa, proceeded making only Gangamma party defendant in the action and when after the preliminary decree was passed she died the plaintiff in that suit without making him the plaintiff in this action, as the legal representative, somehow made the senior widow defendant 4 as the legal representative and proceeded to get the decree absolute and had the property sold. The first Court held against the will under which the plaintiff claimed and dismissed the suit but the lower appellate Court has found both the wills, above referred to, to be genuine. We must, therefore, take it on those findings that at the time of the mortgage suit when Gangamma died the proper legal representative would undoubtedly have been the plaintiff. That, no doubt the lower appellate Court has found, but that clearly is not sufficient. Having regard “to the circumstances of the case and the pleadings, it is incumbent on the lower appellate Court to proceed further and ‘find whether the estate of Gangamma was sufficiently represented by the present defendant 4 in the case and whether in making the present defendant 4 party ‘legal representative in the mortgage suit the plaintiff acted bona fide. As the lower appellate Court had proceeded to grant a decree in favour of the plaintiff merely on the finding that he was the ‘proper legal representative and without considering the sufficiency or otherwise of the representation of the estate of Gangamma, or with regard to the bona fides of the steps taken by the plaintiff in that suit for the purpose of procuring such representation on the record, it is clear that the lower appellate Court was wrong in proceeding to dispose of the case without adverting to these ques-tions. As the case cannot satisfactorily ‘be disposed of without a finding with re-gard to these matters, the case will be remanded to the lower appellate Court for finding on the following issue, whether there was sufficient representation of the estate, the subject matter of the suit, by defendant 4 being brought on the record as the legal representative and whether in bringing defendant 4 on the record the plaintiff acted bona fide believing that he was the legal representative. Both parties will be at liberty to adduce such evidence oral or documentary as they may think fit. The lower appellate Court will be also at liberty to require such evidence to be taken, if deemed fit, by the trial Court. Time for the return of the fin-dings two months from the date on which records reach the lower appellate Court. Time for objection 10 days.
2. In compliance with the order contained in the above judgment, the Sub-Judge of Bellary submitted the following
Finding-I have been directed by the High Court to submit findings on the following issue:
Whether there was sufficient representa-tionof the estate, the subject matter of the suit, by defendant 4 being brought on record as legal representative and whether in bringing defendant 4 on the record plaintiff acted bona fide believing that she was the legal representative.
* * * 3. I am of opinion that Peramma, defendant 4 is the legal representative of her husband's estate according to the definition in Section 2 Clause (11), Civil P.C. I find that even othervise, there was sufficient representation by her of the estate, and defendant 2 acted bona fide, believing that she was the legal representative. (This second appeal coming on for hearing after return of the finding from the Subordinate Judge of Bellary on the issue referred to by this Court for trial, the Court delivered the following judgment.) Thiruvenkatachariar, J.
4. On the two fresh issues remitted to the learned Subordinate Judge in the order of remand, he finds as follows : (1) that the plaintiff in the mortgage suit (defendant 3 in this suit) acted bona fide in bringing on the record of that suit Peramma (defendant 4 in this suit) as the legal re-presentive of the deceased Gangamma and (2) that there was sufficient representation of the estate as regards the subject-matter of the suit by the said Peramma being so brought on the record. She was in possession of the properties which were the subject-matter of that suit after the death of Gangamma and could therefore have been rightly impleaded as her legal representative as defined in Section 2 ‘(11), Civil P.C. Even otherwise there was sufficient representation by her of the estate.
5. These findings are objected to on behalf of the plaintiff-respondent. The evidence taken on remand which is re” ferred to by the Subordinate Judge fully supports his findings on the question of fact involved in the said issues. The plaintiff’s claim in this suit is based on a will executed by Gangamma on 8th November 1918. The genuineness of that will was denied by the defendants. The District Munsif upheld that plea, but on appeal the Sub-Judge held the will to be genuine and that finding is binding on us. But this will was never heard of or set up by the plaintiff until he instituted the present suit on 27th February 1922. But for the will, the proper legal representative of Gangamma in respect of the properties forming the subject matter of the mortgage suit would undoubtedly be Peramma. The evidence adduced in the remand showed that the pattah for the lands being items 2 and 3 comprised in the mortgage was transferred to her name after Gangamma’s death and that she paid to the Government the kists for those lands and that she also took possession of the house, item 1, which also was comprised in the mortgage. It may be that when all this took place, the plaintiff was a minor, but his rights under the will were not put forward by his guardian or any other person on his behalf. There is nothing to show that either the plaintiff in that suit or his transferee, defendant 2 was aware of Gangamma’s will.
6. It is argued for the respondent that the plaintiff was in possession of the house as he was himself living in it. He had been brought up by Gangamma and her husband and had been living in the house with them during their lifetime. His continuing to live in the house after Gangamma’s death, even if true, would not by itself indicate that he had any title to the house or how that title was derived. Gangamma died after the preliminary decree in the mortgage suit was passed and the plaintiff therein had to bring on record her legal representative for obtaining a final and executable decree. In the circumstances of the case there can be hardly any doubt that defendant 2 to whom the preliminary de-reo was transferred by defendant 3 acted bona fide in bringing on record Peramma as the legal representative of the deceased Gangamma. There is also nothing to show that in the proceedings taken by him in execution of the decree against Peramma as the legal representative of Gangamma, he acted otherwise than honestly. Even after the plaintiff had ceased to be a minor, he took no steps to intervene in the proceedings in execution of the mortgage decree. Indeed it was only when the purchaser in the Court sale hold in the execution of the mortgage decree went to take possession of the house, item 1, that the plaintiff’s claim appears to have been first put forward. In the present suit the plaintiff does not question the preliminary mortgage decree passed against Gangamma; nor does he say that any further amount was paid beyond what the decree-holder himself has admitted. The only ground on which the plaintiff has brought the present suit is that he is not bound by the proceedings in the mortgage suit, subsequent to the death of Gangamma, as he was not made a party thereto. Under Gangamma’s will,, he became the absolute owner of the mortgage properties and Peramma had no interest whatever therein. She could not therefore legally represent the estate. Neither the final decree nor the sale held in execution can affect the” plaintiff as he was not made a party to those proceedings. If this contention is well founded the sale of the mortgaged properties to defendant 1 in execution of the decree is void and the plaintiff will have a right to pay off the mortgage decree. That was the view taken by the lower appellate Court. The appellant contends that this is not a correct view and that in the circumstances of the case Peramma sufficiently represented the estate.
7. The respondent on the other hand’ supports the view taken by the lower ap-pellate Court. The question we have to determine is the question of law, whether Peramma, notwithstanding she had no title or interest in the suit properties, sufficiently represented the estate in that suit so as to make the final decree and the sale held in execution thereof binding on the plaintiff.
8. Prima facie no person can be held bound by a decree or order to which neither he nor the person from whom he claims was a party. In Khiarajmal v. Daim [1905] 32 Cal. 296, their Lordships of the Privy Council observe:
that a Court has no jurisdiction to sell the property of persons who are not parties to the proceedings or properly represented on the record. As against such persons the decrees or sales purported to be made would be a nullity and might be disregarded without any proceedings to set them aside.
9. But their Lordships and the several High Courts have also held that in certain circumstances, a person who is impleaded as the legal representive of another which he is not, in a suit or in proceedings for the execution of a decree sufficiently represents the estate with the result that a decree or order which is passed against him in an assumed representative character is held to be bind-ing on the true representative though the latter was no party to the same. The wrong party may have been impleaded at various stages of the litigation. It may have been at the very outset by the suit itself being instituted against him as the legal representative of the deceased person, as in the General Manager of the Raj Durbhanga v. Ramaput Singh [1871]114 M. I.A. 605 and Gnanambal Ammal v. Veerasami Chetty [1915] 29 M.L.J. 698, or during the pendency of the suit as in Kadir Mohideen v. Muthukrishna Ayyar [1903] 26 Mad. 230 and Mada-varayadu v. Subbamma [1920] 31 M.L.J. 222, or after the decree and for the purpose of executing the decree as in Malkarjun v. Narhari [1901] 25 Bom. 337 and Ramasami Chettiar v. Oppilama-ni Chetti [1910] 33 Mad. 6. The question then is, under what circumstances, can the representation of such a person be held to be effective against the true representative? One of the essential conditions is that the plaintiff or decree-holder must have acted bona fide, that is, not only in good faith but also with due care and caution. Whether in the particular case the impleading of the wrong party was done bona fide is a question of fact which will have to be determined with reference to all the facts of the case.
10. The next condition is that the decree or order so obtained must be free from any taint of fraud or collusion. It must also be clear from the proceedings, that the person is impleaded in a representative capacity and that the decree or order is passed against him as representing the estate of the deceased. The person who is prima facie the heir-at-law to a deceased person may and ought to be presumed to be his legal representative for the purposes of the suit or execution proceedings and may be impleaded as such unless the plaintiff or decree-holder is aware of facts which operate to displace the title of the heir-at-law. If in ignorance of such facts he impleads the heir-at-law as the legal representative in the suit either before or after the decree and the person having the real title does not intervene during the pendency of the suit or execution proceedings, the decree or orders passed will be binding on the latter unless he makes out any fraud or collusion in obtaining the same. Where there are rival claimants to the estate of a deceased, it is open to the plaintiff or decree-holder to choose as the legal representative for the purposes of the suit or execution proceedings, the one who in the circumstances as they then exist appears to have the prima facie title, and if such a person is impleaded bona fide and the further proceedings are conducted honestly, the person so impleaded sufficiently represents the estate so as to make the decree or execution sale binding on the person who is subsequently found to be the person really entitled to the estate. Lastly when any question is raised in the suit or execution proceedings as to whether the person impleaded is the legal representative and the Court trying the suit or conducting the execution proceedings decides that be is the legal representative, such a decision, even if erroneous, operates to confer on him that character for the purpose of the suit or proceeding.
11. These propositions are fully supported by the cases cited above to which reference was made during the arguments before us. In support of the respondent’s contention that we cannot hold that Peramma sufficiently represented the estate, his learned advocate has drawn our attention to the following cases. Khiarajmal v. Daim, Madavarayadu v. Subbamma and Kaliappan Servaikaran v. Varadarajulu [1910] 33 Mad. 75. Khiarajmal v. Daim, is not a case where any person was wrongly brought on record as the legal representative of a deceased person; but it was a case where as regards some of the parties no legal representative was brought on record at all. It is thus distinguished by their Lordships them-selves from their previous decision in Malkarjun v. Narhari where a person who was not the legal representatives was brought on the record as such in spite of his objection which was erroneously overruled by the Court.
12. In Madavarayadu v. Subbamma on the death of the defendant-mortgagor his divided brother’s son was brought on the record as his legal representative ignoring his daughter who was the legal representative and it was held that the decree was so obtained was not binding on the daughter, the real heir. In this case no attempt appears to have been made to justify the ignoring of the person who was prima facie the heir to the deceased defendant and in the absence of any satisfactory explanation the plaintiff cannot be held to have acted bona fide.
13. In Kaliappan Servaikaran v. Varadarajulu creditor of a deceased Hindu sued his widow as his legal representative for recovery of the debt due to him and obtained a decree against her. The daughter’s son of the deceased claimed his properties under a will left by him which was contested by the widow. He had also brought a suit against her on that will. The trial Court dismissed that suit and the daughter’s son had preferred an appeal to the District Court against that decree. It was during the pendency of that appeal that the creditor’s suit against the widow was brought. The District Court subsequently upheld the will and the creditor thereafter applied for execution against the daughter’s son, of the decree he had obtained against the widow as the legal representative. That application was dismissed. This decision is explained by Sadasiva Ayyar, J., in Gnanambal Ammal v. Veeraswami Ayyar (a case like the present which strongly supports the appellant’s contention) as merely deciding
that the true legal representative cannot, after the decree, be brought on the record for the purpose of execution and, that the deceased debtor’s property in his hands cannot be attached and sold in that same suit; see at pp. 701 and 702.
14. The learned Judge also observes that if the decision is to be relied on as an authority for the broader proposition that the decree is altogether void as against the daughter’s son on the ground that he was not impleaded as the legal representative, it is not reconcilable with General Manager of Raj Durbhanga v. Ramaput Singh. In General Manager of the Raj Durbhanga v. Ramaput Singh and Ramasami Chettiar v. Oppilamani Chetti the suit was brought (or continued) against a widow as the guardian of her son for recovery of a debt due by her husband. She alleged that her son was adopted into a different family and that she was consequently the heir to her husband and her objection was allowed and the suit proceeded against her as the legal representative of her husband and a decree was obtained; and her husband’s properties were sold in execution of the decree. The adoption of the son into another family was subsequently found against. It was held that the decree obtained against the widow as the legal representative of her husband and the sale held in execution thereof were binding on the son, though he was no party either to the decree or to the execution proceedings.
15. In Ramasami Chettiar v. Oppilamani Chetty the defendant died after the decree and in execution thereof the plaintiff brought on record one of the rival claimants who appeared to have a better title at the time. His title was subsequently found against. Nevertheless it was held that the sale which was made in execution of the decree was binding on the real heir to the property whose title was subsequently established.
16. Upon the authorities- above referred to, we think there can be hardly any doubt as to the correctness of the finding of the Subordinate Judge that Peramma sufficiently represented the estate of Gangamma, The preliminary decree in the mortgage suit had been obtained against Gangamma herself and it was, therefore, binding upon her estate. That decrees though not executable did not leave open any question as to the liability of the estate for the decree amount, but only gave time for the payment of that amount, It is, therefore, substantially a case of bringing on the record a wrong; party for executing the decree. Peramma was, prima facie, the heir of the deceased and was also in possession of at least some of the items of the mortgage property. The will on which the appellant relies was not heard of until the* sale in the mortgage-decree was concluded. Under these circumstances it must be held that Peramma effectually represented the estate and that the sale is binding on the plaintiff. The decree of the lower appellate Court is, therefore, set aside and the suit dismissed with costs of appellant defendant 1 throughout.
