{"id":148785,"date":"1964-09-08T00:00:00","date_gmt":"1964-09-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/daya-ram-and-others-vs-shyam-sundari-on-8-september-1964-2"},"modified":"2016-02-29T23:44:04","modified_gmt":"2016-02-29T18:14:04","slug":"daya-ram-and-others-vs-shyam-sundari-on-8-september-1964-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/daya-ram-and-others-vs-shyam-sundari-on-8-september-1964-2","title":{"rendered":"Daya Ram And Others vs Shyam Sundari on 8 September, 1964"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Daya Ram And Others vs Shyam Sundari on 8 September, 1964<\/div>\n
Equivalent citations: 1965 AIR 1049, \t\t 1965 SCR (1) 231<\/div>\n
Author: N R Ayyangar<\/div>\n
Bench: Ayyangar, N. Rajagopala<\/div>\n
           PETITIONER:\nDAYA RAM AND OTHERS\n\n\tVs.\n\nRESPONDENT:\nSHYAM SUNDARI\n\nDATE OF JUDGMENT:\n08\/09\/1964\n\nBENCH:\nAYYANGAR, N. RAJAGOPALA\nBENCH:\nAYYANGAR, N. RAJAGOPALA\nGAJENDRAGADKAR, P.B. (CJ)\nSHAH, J.C.\n\nCITATION:\n 1965 AIR 1049\t\t  1965 SCR  (1) 231\n CITATOR INFO :\n R\t    1966 SC 792\t (517)\n R\t    1967 SC  49\t (2,3)\n RF\t    1971 SC  37\t (5)\n R\t    1975 SC 733\t (30,32,33)\n RF\t    1979 SC1393\t (29)\n F\t    1989 SC1589\t (5)\n\n\nACT:\nPartition-suit for-Equities between co-owners.\nCode of Civil Procedure (Act V of 1908), O.XXII, r. 4(1) and\n(3)-Scope of.\nPractice-Legal\trepresentatives-Duty to bring on  record  to\nmake record complete.\n\n\n\nHEADNOTE:\nHar Charan, respondent's father, and his two brothers, owned\ncertain\t lands.\t After the death of Har Charan his  brothers\nsold  the  lands  to  the father  of  the  appellants.\t The\nrespondent filed a suit claiming a decree for possession  of\na third share in the property alleging that Har Charan\tand:\nhis  brothers were separated in interest.  After  notice  of\nthe  claim  of\tthe  respondent.  the  purchaser  made\tsome\nconstructions\tin  pursuance  of  an  agreement  with\t the\nImprovement Trust.  The respondent's claim was decreed\tbut,\nin  execution of the decree it was ordered that\t she  should\nfile  a\t suit  for partition in which her  rights  would  be\nworked out.  In the suit for partition, the trial Court held\nthat  in equity she was only entitled to a decree for  money\nrepresenting  the  value of her third share, on\t the  ground\nthat the appellants' father had constructed buildings on the\nland.  The High Court allowed her appeal holding that as the\nbuildings   were  completed  with  the\tknowledge  -of\t the\nrespondent's  claim,  the  appellants could  not  plead\t any\nequity in their favour.\t 'Me decree was challenged in appeal\nto  the\t Supreme Court.\t While the appeal  was\tpending\t the\nrespondent  died and only some of her legal  representatives\nwere brought on record.\t It appeared however that there\t was\nno  want  of diligence or bona fides in the  appellants,  in\nmaking an enquiry as to who the legal representatives were.\nHELD  : (i) The appellants' father was in the position of  a\ntrespasser with notice of the claim of the true owner and he\ncould  not  claim any special equity based upon\t his  having\nbona   fide  put  common  property  to\tuse  and   :effected\nimprovements on it. [237B-D].\n(ii) Under 0. XX.11, r. 4(1) and (3) of the Civil  Procedure\nCode, 1908, where a plaintiff or an appellant after diligent\nand   bona   fide   enquiry  ascertained   who\t the   legal\nrepresentatives of a deceased defendant or respondent  were,\nand  brought them on record within the time limited by\tlaw,\nthere  would  be no abatement of the suit  or  appeal,\teven\nthough some other legal representatives remained unknown  to\nhim  and were not impleaded, if those legal  representatives\nwho were impleaded sufficiently represented the estate and a\ndecision obtained against them bound the entire estate.\t  If\nhowever it is brought to the notice of the appellant  during\nthe   pendency\tof  the\t appeal\t that-some  of\t the   legal\nrepresentatives had not been impleaded, it would be the duty\nof the appellant who was thus made aware of his default,  to\nbring those others on record. [24OD-F; 242B].\nCase law reviewed.\n232\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 360 of 1962.
\nAppeal from the judgment and decree dated February 26,\t1957
\nof the Allahabad High Court in F. A. No. 487 of 1945.
\nS.  K. Kapur, Advocate-General, Punjab, S. Murty and  K.  K.
\nJain, for the appellants.\n<\/p>\n
G. N. Dikshit, for the respondent.\n<\/p>\n
The Judgment of the Court was delivered by
\nAyyangar  J.  This is an appeal by a certificate granted  by
\nthe  High Court of Allahabad under Art. 133 (1) (b)  of\t the
\nConstitution  and represents, and that is our hope, the last
\nstage  of  a litigation which has lasted  over\tforty  years
\nbetween the deceased respondent-Shyam Sundari-and Mata\tDin,
\nthe father of the appellants.\n<\/p>\n
The  following facts are necessary to be stated in order  to
\nappreciate   the   very\t  short\t point\t that\tarises\t for
\nconsideration ‘in this\t appeal.   The\t father\t  of   Shyam
\nSundari-the deceased respondent was one Babu Har Charan Lal.
\nHe  was the owner along with his  two brothers-Kanhaiya\t Lal
\nand Sheo Narain, of plots 599 and 600 situated in Sisamau in
\nKanpur\ton which there existed certain petty  constructions.
\nThe three brothers were separated in interest and were\teach
\nentitled  to  a third share. Babu Har Charan  Lal   died  in
\nDecember, 1915 leaving behind him surviving his widow  Tulsa
\nKunwar and an only daughter-Shyam Sundari. Tulsa Kunwar died
\non  June 6, 1919 but even before her death Kanhaiya lal\t and
\nSheo Narain, the two brothers of her husband claiming a full
\ninterest  in  those plots, sold them to Lala Mata  Din,\t the
\nfather of the appellants by two registered deeds of sale for
\nRs. 7,000  on, the footing that each was entitled to a\thalf
\nshare,\t ignoring  the\trights\tof  Tulsa  Kunwar  who\t was
\nadmittedly  no party to that transaction of sale. After\t the
\ndeath  of Tulsa Kunwar, Shyam Sundari made a  claim  against
\nthe  purchaser\tfor her third share in the property  as\t the
\nheir of her father, but as this was denied to her, she filed
\nin March 1922 a suit numbered as 20 of 1922 in the Court  of
\nthe  Second  Subordinate Judge, Kanpur for the\trecovery  of
\npossession of her third share in these two plots.
\nBut  before this suit was filed certain\t matters  transpired
\nbetween Mata Din and the Kanpur Improvement Trust which have
\nto  be\treferred to because the agreement  entered  into  on
\nDecember 15, 1921 between the Improvement Trust and Mata Din
\nas  a  result of these negotiations and the steps  taken  by
\nMata Din in consequence
\n233<\/span>
\nthereof\t are relied on by learned Counsel for the  appellant
\nin  support of the contentions raised by him in the  appeal.
\nIt appears that there was a proposal for the acquisition  of
\nthese  plots  by  the Kanpur  Improvement  Trust,  that\t the
\nproposed  acquisition was objected to by Mata Din  and\tthat
\nthe  proposal  was abandoned by the Improvement Trust  as  a
\nresult of the agreement entered into by Mata Din whereby  he
\nagreed\tto convey to the Trust 895.35 sq. yds. of land\tfree
\nof  cost,  in lieu of the betterment contribution  and\talso
\nagreed\tto construct on the remaining part of the  premises,
\nshops  and houses in accordance with plans approved  by\t the
\nImprovement  Trust.  ‘Me relevance of this agreement and  of
\nthe,constructions -effected by Mata Din in pursuance of\t the
\nagreement we shall reserve for consideration later.
\nThe principal defence of Mata Din to the suit 20 of 1922 was
\nbased  on  the allegation that Har Charan Lal was  joint  in
\nstatus and in interest with his two brothers and that on the
\nformer’s  death\t without  male\tissue  the  family  property
\nsurvived  to the other two brothers.  The trial Court  found
\nagainst\t the  plaintiff\t Shyam Sundari\ton  this  issue\t and
\ndismissed  her suit.  She filed an appeal to the High  Court
\nand the learned Judges allowed her appeal.  At the stage  of
\nthe hearing of the appeal a claim was made by Mata Din\tthat
\nthe was entitled to compensation for the building erected by
\nhim  on the ground that he had effected improvements to\t the
\nproperty  (these  being\t the  shops  and  houses  which\t  he
\nundertook   to\tconstruct  under  the  agreement  with\t the
\nImprovement Trust) bona fide and he rested his case in\tthis
\nregard\ton  the terms of s. 51 of the Transfer\tof  Property
\nAct.  The learned Judges, however, disallowed this claim for
\ncompensation.\tThe claim to compensation  for\timprovements
\neffected had not been raised in the pleadings, nor urged  in
\nthe trial Court and the learned Judges observed
\n“No  definite allegation of improvement of the property\t was
\nraised\tin  his\t written statement.  No\t sum  spent  on\t the
\nbuilding   was\t specified   and   there   is\tvery\tgood
\nreason.\t as  we have said, to believe that Mata Din  had  no
\nbuilding  on this and on the 1st December, 1921.  We  cannot
\nfor  a moment believe that the building was finished by\t the
\n1st  December, 1921.  He had notice of the plaintiffs  claim
\nby March, 1922 and if he went on after getting notice of the
\nplaintiffs claim to finish the completion of the building he
\nwas taking a risk and he must accept the consequences.”\n<\/p>\n
     234<\/span><\/p>\n
Allowing the appeal the learned Judges granted Shyam Sundari   a
\ndecree\tfor  possession\t of  a third  share  of\t the,  plots
\nspecified  in the lists attached to the plaint. That  decree
\nhas now become final.\n<\/p>\n
When  Shyam Sundari sought  execution of this decree,  there
\nwas  again trouble raised by Mata Din and when she  obtained
\njoint  formal possession of her third share of the  property
\nunder\t  the  orders of the executing Court Mata Din  filed
\nan appeal to   the High Court and    the learned Judges held
\nthat Shyam Sundari  was\t not  entitled on the basis  of\t the
\ndecree\twhich  she had obtained in suit 20 of  1922  to\t any
\nspecific portion of the land. All that she was entitled\t to,
\nthe learned Judges said, was to symbolical   possession of a
\nthird of the plots 599 and 600 and that she  ought to file a
\nseparate  suit\tfor partition in which this  right  of\thers
\ncould be worked out.\n<\/p>\n
In  pursuance  of  this\t finding  and  decree  of  the\tHigh
\nCourt,Shyam Sundari filed the suit out of which the  present
\nappeal\t  arises-suit\t9   of\t1939-against   the   present
\nappellants who are  the\t sons of Mata Din. who had  died  in
\n1933. The claim made\t in the suit was for determining the
\nthird share of the lands and  for allotting the same to\t her
\nand if there were buildings on such\ta  plot\t the  plaint
\nprayed\tthat  they might either be given over to her  or  be
\npermitted  to  be  demolished  by  the\tdefendants,  with  a
\nfurther prayer that the plaintiff might be-put in possession
\nof  her\t third share as ascertained. She  also\tclaimed\t the
\nother  usual  reliefs of mesne profits and  costs.   Several
\ndefences  were\traised\tto this suit,  some  of\t which\twere
\nobviously  frivolous.\tSuch, for instance, were  the  pleas
\nthat  the suit was barred by limitation or by s. 47 -of\t the
\nCivil  Procedure Code or that she had lost title by  adverse
\npossession  on the part of the defendants.  The trial  Judge
\noverruled  these technical defences and held that  her\tsuit
\nfor  the ascertainment and possession of a third  share\t was
\nmaintainable.  But having so held, instead of granting her a
\ndecree\tfor  a\tthird share of the plots to  which  she\t had
\nobtained a right in suit 20 of 1922, he granted her a decree
\nfor Rs. 2,620 as representing the third\t share of the  price
\nof the land in question.  She was also granted a decree\t for
\nRs.  2,000 as her share of the materials on the land at\t the
\ndate of the sale to Mata Din, but this portion of the decree
\nwas,  on  appeal by the appellants, deleted by\tthe  learned
\nJudges\tof  the\t High  Court and  need\tnot,  therefore,  be
\nconsidered.  Her claim to-the allotment in specie of a third
\nshare  in the suit land was disallowed to her on the  ground
\nthat Mata Din had -constructed certain buildings on the land
\nand that it was not
\n235<\/span>
\npossible  to allot to her a third share in the land  without
\ninterfering with the buildings and that for this reason\t the
\ndefendants  the\t appellants before us were entitled  to\t the
\nequity of requiring the plaintiff Shyam Sundari to sell\t her
\nshare  to them or, in other words, be compelled to take\t the
\nmoney  value of the land in lieu of her share in it.   Shyam
\nSundari\t appealed from this decree to the High\tCourt.\t The
\nappeal\twas  allowed by the High Court which granted  her  a
\ndecree\tfor a share of the property.  The decree  passed  in
\nfavour\tof  the respondent by the High Court runs  in  these
\nterms:\n<\/p>\n
\t       “A  preliminary decree for partition of\t-the
\n\t      appellants’1\/3rd\tshare in plots 599  and\t 600
\n\t      area 1122.99 sq. yds. be passed and that it is
\n\t      hereby  directed that the appellant  shall  be
\n\t      allotted\tto her share the land on  which\t the
\n\t      least valuable constructions stand and that it
\n\t      shall  be\t open to the respondents  to  remove
\n\t      their constructions from the site allotted  to
\n\t      the appellants share, but if they do not,\t the
\n\t      ‘appellant   shall   be\tentitled   to\ttake
\n\t      possession  over them without any payment\t and
\n\t      shall become their owner.”\n<\/p><\/blockquote>\n
It  is\tthe  correctness of this decree\t for  partition\t and
\npossession  that  is challenged by the\tappellants  who,  as
\nstated\tbefore, have obtained a certificate of fitness\tfrom
\nthe High Court.\n<\/p>\n
The  ground  upon which the learned trial  Judge  considered
\nthat  the defendants were entitled to this equity  was\tthat
\nMata  Din  had\tmade the constructions on  the\tland,  being
\nobliged\t to do so by reason of the agreement with the  Trust
\nand  that he effected these improvements as a  co-owner\t and
\nnot  as a trespasser and that in entering into an  agreement
\nwith the Trust he did not act mala fide but to save the land
\nin dispute for himself and his co-owners from being acquired
\nby  the Trust and that as Shyam Sundari did not\t assert\t her
\ntitle  before  the  construction started  it  would  not  be
\nequitable  to  permit her to obtain a share in the  land  on
\nwhich the new constructions stood and that it was within the
\njurisdiction  of  the  court  trying  a\t partition  suit  to
\ntransfer  to  co-sharers at the market price the  shares  of
\nothers\tinstead of dividing the property and that as it\t was
\nimpracticable  to  divide the property\twithout\t demolishing
\nsome  at  least of the constructions,  the  defendants\twere
\nentitled to insist that they should be permitted to purchase
\nthe  third  share of Shyam Sundari in the  vacant  land.  In
\nreversing  this\t judgment, the learned Judges  of  the\tHigh
\nCourt  held  that the action of Mata Din in  purchasing\t the
\nproperty was not bona fide. Mata Din had put forward, in the
\nprevious litigation
\n     236<\/span>\n<\/p>\n
-suit 20 of 1922-a defence based on s. 51 of the Transfer of
\nProperty  Act and in that he failed. The agreement with\t the
\nTrust  was on December 15, 1921 and Shyam Sundari’s suit  20
\nof  1922 was filed in March 1922. It was,  therefore,  clear
\nthat whether or not the constructions were commenced  before
\nthe suit was instituted, they were completed with  knowledge
\nof  the claim of Shyam Sundari to which, as the Courts\thave
\nnow found, he had   no defence. The agreement with the Trust
\ncould not justify Mata Din’s action because the Trust  could
\nnot  agree  with  a  person who was not\t the  owner  of\t the
\nproperty  to construct buildings on another’s  property.  It
\nwould have been open to Mata Din to have informed the  Trust
\nimmediately he got notice of the claim of Shyam Sundari that
\nonly  a 2\/3rd share in the site belonged to him, but he\t did
\nnot  do\t so  but completed the\tconstructions  ignoring\t the
\nclaims\tof  Shyam Sundari. They could  not  therefore,\ttake
\nadvantage of their own acts and conduct and plead an  equity
\nbased  upon their wrongful acts. On this line  of  reasoning
\nthe  learned Judges held that there was no equity in  favour
\nof Mata\t  Din  and  his heirs and hence passed a  decree  in
\nfavour\tof  Shyam  Sundari in the terms\t we  have  extracted
\nearlier.\n<\/p>\n
Learned\t Counsel for the appellants, though he\treferred  to
\nthe  Partition Act, could not obviously rely upon it because
\nthe procedure adopted by the learned trial Judge was not one
\nwhich  was sanctioned by that enactment, viz., sale -of\t the
\nentire\tproperty  which\t is the subject\t of  partition.\t He,
\ntherefore, urged before us that at the. stage when Mata\t Din
\nentered into the agreement with\t   the Improvement Trust the
\nposition  was  that the interest of the\t co-sharers  was  in
\njeopardy and they ran the risk of losing the entire property
\nby  the same being acquired under the Land  Acquisition\t Act
\nand  that by his act in entering into the agreement the\t co-
\nowners had been saved the property now in dispute and  that,
\nin  the\t circumstances,\t the agreement\twas  one  which\t was
\nentered\t into  bona fide and that he could claim  an  equity
\nbased on the constructions erected in pursuance thereof.  We
\ndo  not see any substance in this argument. If the  property
\nhad   been   acquired\tunder  the  Land   Acquisition\t Act
\ncompensation  at  the market value with the  solatium  would
\nhave  been  provided  and  Shyam  Sundari  would  have\tbeen
\nentitled  to a third share in that compensation.  ‘Mere\t is,
\ntherefore,  no question of Mata Din salvaging something\t for
\nthe co-owners; and on that ground being entitled to plead an
\nequity\tbased on such an act. Nor is there any substance  in
\nthe  argument  derived\tfrom  the  analogy  of\timprovements
\neffected by co-owners or co-sharers, for admittedly Mata Din
\ndealt
\n237<\/span>
\nwith the property as full owner denying the claims of  Shyam
\nSundari\t to  a third share in  the  property.\tVirtually,it
\nwould  be  seen\t that the equity pleaded  is  based  on\t the
\nprinciple underlying s. 51 of the Transfer of Property\tAct,
\nand  as\t we  have seen, the argument  calling  in  aid\tthis
\nprovision of law had been urged before the High Court in the
\nappeal\tagainst the decree in suit 20 of 1922 and  had\tbeen
\nrejected  for  the reasons we have  extracted  earlier,\t and
\nthese  reasons\tclearly\t negative  all\tbona  fides  in\t the
\nconstruction of these buildings.  In these circumstances, we
\nconsider that-the learned Judges were justified in  treating
\nthe  acts  of’ Mata Din as those of a trespasser  who,\twith
\nnotice\tof  the\t claim\tof  the\t true  owner,  had  effected
\nconstructions on the property.\tIt is obvious that in  those
\ncircumstances  he could claim no special equity\t based\tupon
\nhis having bona fide put common property to use and effected
\nimprovements on it.  We consider, therefore, that the decree
\npassed\tby the High Court is not open to objection -and\t the
\nappeal has accordingly,to fail.\n<\/p>\n
Before\tconcluding, however, it is necessary to deal with  a
\npreliminary  objection\traised by learned  Counsel  for\t the
\nrespondent  that the appear had abated and that it ought  to
\nbe dismissed in limine on that ground.\tThe decree passed in
\nthe  case,  as would have been seen, was for  partition\t and
\ndelivery of separate possession of a 1\/3rd share in the\t two
\nplots No. 599 and 600 of Sisamau, Kanpur in favour of  Shyam
\nSundari and in the appeal filed by the heirs of Mata Din she
\nwas   the  sole\t respondent.   The  High  Court\t granted   a
\ncertificate  of fitness under Art. 133 (1) (b) on  September
\n13,  1957 and the appeal was declared admitted by  the\tHigh
\nCourt on November 27, 1957 and thereupon under the  relevant
\nprovisions  of\tthe Civil Procedure Code the  appeal  became
\npending\t in  this Court.  Shyam Sundari was stated  to\thave
\ndied  sometime in April, 1959 and thereafter the  appellants
\ntook  steps  to implead her legal representatives.   In\t the
\npetition  filed\t by  the appellants for\t the  purpose,\tthey
\nstated\tthat the heirs of the deceased were her husband\t and
\nfour  sons, and it was prayed that these might be  impleaded
\nas the legal representatives of the deceased.  The  petition
\nwas  granted.\tThe  substitution was  made  and  the  legal
\nrepresentatives who were impleaded respondents have  entered
\nappearance and are contesting the appeal and it is on  their
\nbehalf\tthat the preliminary objection is being raised.\t  In
\nthe  statement\tof  case which these  respondents  filed  in
\nOctober\t 1962 they took the plea that the appeal had  abated
\nsince a son Kunwar Bahadur and a daughter Laxmibai of  Shyam
\nSundari\t  had\tnot  been  brought  on\t record\t  as   legal
\nrepresentatives within the time
\n238<\/span>
\nallowed\t by  law.   No allegation, however,  has  been\tmade
\neither suggesting that the appellants had not made  diligent
\nand   bona   fide   enquiries  regarding   who\t the   legal
\nrepresentatives\t of Shyam Sundari were or that they had\t any
\nmotive fraudulent or otherwise in not adding the son and the
\ndaughter  in  the array of legal  representatives  in  their
\npetition  under\t 0.  22 r. 4, Civil  Procedure\tCode,.\t The
\nquestion for consideration is whether when an appellant\t has
\nimpleaded  heirs of the deceased respondent so far as  known
\nto  him within the time allowed by law, but has\t omitted  to
\nbring on record some of the heirs, this omission results  in
\nthe abatement of the appeal.\n<\/p>\n
As we shall point out presently, the question in Sikh  cases
\nis  whether  the  estate of the\t deceased  is  properly\t and
\nsufficiently  represented for the purpose of  defending\t the
\nappeal and whether, in law, the estate can be so represented
\neven when some of the heirs are, without fraud or collusion,
\nomitted to be brought on record.  Before, however, examining
\nthis  point, it would be convient to refer to and deal\twith
\nthe  authorities relied on by Counsel for the respondent  in
\nsupport\t  of  his  submission.\t Learned  Counsel  for\t the
\nrespondent relied on two decisions of this Court –The  State
\nof  Punjab v. Nathu Ram<\/a> (1) and Ram Sarup v. Munshi<\/a>(2  )  as
\nloading to this result.\t In the first case the Government of
\nPunjab\tacquired  certain parcels of land belonging  to\t two
\nbrothers  L  &\tN who refused  to  accept  the\tcompensation
\noffered\t to them and applied to the Government to refer\t the
\ndispute to arbitration.\t The matter was thereafter  referred
\nto arbitration under the Punjab Land Acquisition (Defence of
\nIndia) -Rules, 1943 and an award was passed in favour of the
\nbrothers.  The Government appealed against the award to\t the
\nHigh Court and during the pendency of the appeal before\t the
\nHigh  Court one of the brothers died and no application\t was
\nmade for bringing on record his legal representatives within
\nthe  time  limited  by law.  A\tpreliminary  objection\t-was
\nraised to the hearing of the appeal by the surviving brother
\nwho  claimed that the entire appeal had abated by reason  of
\nthe legal representatives of the deceased brother not having
\nbeen ‘brought on record in time.  The learned Judges of\t the
\nHigh Court accepted this contention and dismissed the entire
\nappeal.\t  The  ‘State of Punjab came up in  appeal  to\tthis
\nCourt  and  this  Court ‘held that in the case\tof  a  joint
\ndecree\tthe  decree was indivisible and in such a  case\t the
\nappeal\tagainst\t one respondent alone can,not  be  proceeded
\nwith  and  would have to be dismissed as a  result   of\t the
\nabatement of the appeal against the deceased respondent
\n(1) [1962] 2 S.C.R. 636.\n<\/p>\n
(2) [1963] 3 S.C.R. 858.\n<\/p>\n
239<\/span><\/p>\n
for otherwise there would be two inconsistent decrees.\tThis
\nCourt found that the brothers had made a joint claim and got
\na  joint decree and it was that decree which was  joint\t and
\nindivisible  that was being challenged in appeal before\t the
\nHigh  Court.  The appeal of the State was dismissed.  We  do
\nnot  see  how this decision helps the respondent  but  shall
\nexamine it after referring    to the other decision of\tthis
\nCourt  on which the learned Counsel sought support.  In\t Ram
\nsarup  v. Munshi(1) there had been a pre-emption decree\t and
\nan appeal was preferred from it by the vendees.\t One of\t the
\nappellants   died   pending  the  appeal   and\t his   legal
\nrepresentatives\t were not brought on record.  As the  decree
\nwas  a joint one And as part of the decree had become  final
\nby   reason  of\t the abatement it was held that\t the  entire
\nappeal\tmust  be held to have abated.\tThe  principle\tupon
\nwhich these cases rest has no application to the case before
\nus.   The first of the above decisions was a case  where  -a
\njoint  decree had been passed in favour of  two\t individuals
\nand that was challenged in the appeal\tbefore\t the\tHigh
\nCourt.\tIt was common ground that the appeal against one  of
\nthe  joint  decree-holders had abated owing to none  of\t his
\nlegal representatives; having been impleaded within the time
\nlimited\t by law.  There was, therefore, none on\t the  record
\nwho  could represent the estate of the deceased\t respondent.
\nIn  such a case the only question that Could arise would  be
\nwhether the    abatement  which ex concessis took  place  as
\nregards one of the respondents should have effect  partially
\ni.e.  confined\tto the share of the deceased  respondent  as
\nagainst\t whom  the appeal has abated, or  whether  it  would
\nresult\tin the abatement of the entire appeal.\tThis, it  is
\nobvious,  would depend on the nature of the decree  and\t the
\nnatural-  of the interest of the deceased in  the  property.
\nIf the decree is joint and indivisible, it would be apparent
\nthat  the  abatement  would be total.  It  was\tprecisely  a
\nquestion  of  this sort that was raised\t by  Nathu  Ram’s(2)
\ncase.  The other decision in Ram Sarup v. Munshi<\/a>(1) is\talso
\nan illustration of the identical principle, and that is\t the
\nreason why this Court proceeded to consider elaborately\t the
\nnature of the interest inter se of the vendees who had filed
\nthe appeal.  It is clear that in the appeal now before us no
\nsuch question of partial or ‘total abatement arises.
\nThe  case  before  us is entirely different.   There  was  a
\ndecree\tin favour of Shyam Sundari-and that is the  subject-
\nmatter\tof this\t appeal. The question is whether  there\t has
\nbeen  abatement of the appeal against Shyam Sundari.   Shyam
\nSundari’s heirs have
\n(1) [1963] 3 S.C.R. 858.\n<\/p>\n
(2) [1962] 2 S.C. R. 636.\n<\/p>\n
240<\/span><\/p>\n
been  brought on record within the time allowed by  law\t and
\nthe only question is whether the fact that two of the  legal
\nrepresentatives\t of  Shyam Sundari have been omitted  to  be
\nbrought on record would render the appeal incompetent.\tThis
\nturns  on  the proper interpretation of 0. 22, r. 4  of\t the
\nCivil Procedure Code :\n<\/p>\n
\t      “4.   (1)\t  Where……………\t    a\tsole
\n\t      defendant\t or  sole  surviving defendant\tdies
\n\t      and  the right to sue-survives, the Court,  on
\n\t      an      application made in that behalf, shall
\n\t      cause the legal representative of the deceased
\n\t      defendant to be made a party and shall proceed
\n\t      with the suit.\n<\/p>\n
\t      4. (3) Where within the time limited by law no
\n\t      application  is made under sub-rule  (1),\t the
\n\t      suit  shall  abate  as  against  the  deceased
\n\t      defendant.”\n<\/p>\n
When this provision speaks of “legal representatives” is  it
\nthe intention of the legislature that unless each and every-
\none of the legal representatives of the deceased defendants,
\nwhere  these are  several, is brought on record there is  no
\nproper\tconstitution of the suit or appeal, with the  result
\nthat  the suit or appeal would abate? The  almost  universal
\nconsensus of opinion of all the High Courts  is that where a
\nplaintiff  or  an  appellant after diligent  and  bona\tfide
\nenquiry\t ascertains  who  the  legal  representatives  of  a
\ndeceased  defendant  or respondent are and  brings  them  on
\nrecord\twithin\t the  time  limited  by\t law,  there  is  no
\nabatement  of the suit or appeal, that the  impleaded  legal
\nrepresentatives\t sufficiently  represent the estate  of\t the
\ndeceased and the decision obtained with them on record\twill
\nbind  not  merely  those impleaded  but\t the  entire  estate
\nincluding those not brought on record. The principle of this
\nrule  of law was thus explained in an early decision of\t the
\nMadras\tHigh  Court in Kadir v. Muthukrishna  Ayyar(1).\t The
\nfacts  of  that case were that when the defendant  died\t the
\nfirst defendant before the Court was impleaded as his  legal
\nrepresentative.\t The  impleaded person raised  no  objection
\nthat  he  was  not  the sole  legal  representative  of\t the
\ndeceased  defendant and that there were others who had\talso
\nto be joined. In these circumstances, the  Court observed:\n<\/p>\n
\t       “In  our opinion a person whom the  plaintiff
\n\t      alleges to be the legal representative of\t the
\n\t      deceased\tdefendant and whose name  the  Court
\n\t      enters  on  the record in the  place  of\tsuch
\n\t      defendant sufficiently represents the    estate
\n\t      of  the deceased for the purposes of the\tsuit
\n\t      and
\n\t       (1) (1902) I.L.R. 26 Mad. 230.\n<\/p><\/blockquote>\n
241<\/span><\/p>\n
\t      in  the absence of any fraud or collusion\t the
\n\t      decree  passed’in\t such suit  will  bind\tsuch
\n\t      estate  ……. If this were not the  law,  it
\n\t      would,   in  no  few  cases,  be\t practically
\n\t      impossible to secure a complete representation
\n\t      of  a party dying pending a suit and it  would
\n\t      be  specially so in the case of  a  Muhammadan
\n\t      party\t and  there can be no hardship in  a
\n\t      provision of law by which a party dying during
\n\t      the  pendency of a suit, is fully\t represented
\n\t      for the purpose of the suit, but only for that
\n\t      purpose, by a person whose name is entered  on
\n\t      the  record  in place of\tthe  deceased  party
\n\t      under  sections 365, 367 and 368 of the  Civil
\n\t      Procedure Code, though such person may be only
\n\t      one  of several legal representative’s or\t may
\n\t      not be the true legal representative.”\n<\/p><\/blockquote>\n
This,  in our opinion, correctly represents the law.  It  is
\nunnecessary, here, to consider the question whether the same
\nprinciple would apply when the person added is not the\ttrue
\nlegal  representative  at all.\tIn a case where\t the  person
\nbrought on record is a legal representative we consider that
\nit would be consonant with justice and principle that in the
\nabsence\t of  fraud or collusion the bringing. on  record  of
\nsuch  a\t legal representative is sufficient to\tprevent\t the
\nsuit or the appeal from abating.  We have not been  referred
\nto  any principle of construction of 0. 22, r. 4 or  of\t the
\nlaw  which would militate against this view.  This  view  of
\nthe  law was approved and followed by Sulaiman, Acting\tC.J.
\nin  Muhammiad  Zafaryab\t Khan v. Abdul\tRazzaq\tKhan(1).   A
\nsimilar view of the law has been taken in Bombay-See Jehrabi
\nSadullakhan Mokasi v. Bismillabi Sadruddin Kaji(2 )-as\talso
\nin Patna-See Lilo Sonar v. Jhagru Sahu (3) , and Shib  Dutta
\nSingh  v. Sheikh Karim Bakhslz (4 ) as well as.\t in  Nagpur-
\nAbdul  Baki v. R. D. Bansilal Abirchand Firm, Nagpur  (5  ).
\nThe Lahore High Court has also accepted the same view of the
\nlaw-See\t Mst.\tUmrao  Begum v. Rehmat\tIlahi(6).   We\tare,
\ntherefore,  clearly of the opinion that the appeal  has\t not
\nabated.\n<\/p>\n
The  next  question  is about the effect  of  the  appellant
\nhaving omitted to include two of the heirs of Shyam Sundari,
\na  son and a daughter who admittedly had an interest in\t the
\nproperty, and the effect of this matter being brought to the
\nnotice\tof the Court before the hearing of the appeal.\t The
\ndecisions to which we have
\n     (1) (1928) I.L.R.50 All. 857.(2) A.I.R. 1924 Bom. 420.
\n     (3) (1924) I.L.R. 3 Patna 853.(4) (1924) I.L.R. 4 Patna\n<\/p>\n
320.
\n     (5) 1.L.R. [1944] Nag. 577.(6) (1939) I.L.R. 20  Lahore\n<\/p>\n
433.
\n242<\/span>
\nreferred  as well as certain others have laid down,  and  we
\nconsider  this also, correct, that though the appeal has not
\nabated,\t when once it is brought to the notice of the  Court
\nhearing the appeal that some of the legal representatives of
\nthe deceased respondent have not been brought on record, and
\nthe appellant is thus made    aware  of this default on\t his
\npart, it would be his duty to bring  these others on record,
\nso that the appeal could be properly constituted.   In other
\nwords,\tif  the appellant should succeed in  the  appeal  it
\nwould  be necessary for him to bring on record\tthese  other
\nrepresentatives\t whom he has omitted to implead\t originally.
\nThe result of this would be that the appeal would have to be
\nadjourned  for the purpose of making the record complete  by
\nimpleading   these  two\t legal\trepresentatives\t  whom\t the
\nappellant had  omitted\tto  bring  on record  in  the  first
\ninstance. This is the course  which  we would have  followed
\nbut we had regard to the fact that  the\t suit out  of  which
\nthis appeal arises was commenced in\t1939  and was  still
\npending quarter of a century later and having\t  regard  to
\nthis  feature  we considered that unless we  were  satisfied
\nthat  the  appellant had a case on the merits  on  which  he
\ncould\t  succeed, it would not be necessary to adjourn\t the
\nhearing\t for the purpose of formally bringing on record\t the
\nomitted\t legal\trepresentatives. We therefore  proceeded  to
\nhear the appeal and as we     were satisfied that it  should
\nfail on the merits we did not think it necessary to make the
\nrecord complete.\n<\/p>\n
     The appeal fails and is dismissed with costs.
\nAppeal dismissed.\n<\/p>\n
243<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Daya Ram And Others vs Shyam Sundari on 8 September, 1964 Equivalent citations: 1965 AIR 1049, 1965 SCR (1) 231 Author: N R Ayyangar Bench: Ayyangar, N. Rajagopala 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-148785","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDaya Ram And Others vs Shyam Sundari on 8 September, 1964 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/daya-ram-and-others-vs-shyam-sundari-on-8-september-1964-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Daya Ram And Others vs Shyam Sundari on 8 September, 1964 - 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