Case: N.K. Mohammad Sulaiman Vs. N. C. Mohammad Ismail And Others

1. Khader Miran, Muhammad Abdul Kassim and Muhammad Labhai mortgaged on August 21, 1933, certain immoveable property in favour of Narsimha Reddy to secure repayment of Rs. 20,000. Khader Miran died on November 19, 1937. On July 12, 1940 Narsimha Reddy commenced an action for enforcement of the mortgage against Muhammad Abdul Kasim, Muhammad Labhai, and three widows of Khader Miran Fathima Bi, Amina Bi and Mahaboob Bi, and a daughter Muhammad Marriyam Bi. A preliminary mortgage decree passed in the action on November 25, 1940 was made absolute on October 11, 1941, and in execution of the decree the properties mortgaged were sold at a Court auction and were purchased by the mortgage Narsimha Reddy on October 16, 1942, with leave of the Court. Narsimha Reddy thereafter transferred the properties to P. Chinnamma Reddi and the latter in his turn alienated portions thereof.2. N. K. Mohammad Sulaimanhereinafter referred to as the plaintiffclaiming that he was the son of Khader Miran instituted suit No. 125 of 1950 in the Court of the Subordinate Judge, Chittoor for a decree for partition of the mortgaged properties by metes and bounds and in the alternative for a declaration that he was entitled to redeem the mortgage or portion thereof equal to his share in the mortgaged properties and for an order against Narsimha Reddy and the aliences from him to render a true and correct account of the income of the properties, and for a further declaration that the decree and judgment in suit No. 87 of 1940 and the execution proceedings thereon were null and void, and if necessary to set aside the same. To this suit were impleaded Mohammad Ismail who, it was claimed, was also the son of Khader Miran, and was not impleaded in the earlier suit, Mahaboob Bi the mother of the plaintiff, Mariyam Bi his step sister, Narsimha Reddy andalienees of the property. The suit was resisted by Narsimha Reddy and the alienees on two principalthe plaintiff was not the son of Khader Miran, and that the decree in suit No. 87 of 1940 was in any event binding upon the plaintiff for the estate of Khader Miran was fully represented in the suit by those who were in possession of the estate of Khader Miran. On the second plea, it was submitted that Narsimha Reddy had made full and bona fide inquiry and had come to learn that only the three widows and daughter of Khader Miran were the surviving members of the family of Khader Miran and that they were in possession of his estate, and that it was not brought to the notice of Narsimha Reddy at any time that there were, beside those impleaded, other heirs to the estate of Khader Miran.3. The Trial Court held that the plaintiff who was the son of Khader Miran was sufficiently represented by the three widows and the daughter of Khader Miran in suit No. 87 of 1940, and that the plaintiff and his brother Mohammed Ismail were bound by the decree and the sale in execution thereof even though they were not impleaded as parties eo nomine. In appeal to the High Court of Andhra Pradesh, the decree passed by the Trial Court, dismissing the plaintiffs suit, was confirmed. With certificate granted by the High Court, this appeal is preferred in forma pauperis by the plaintiff.4. The Trial Court and the High Court have held that Narsimha Reddy had instituted the mortgage suit after making bona fide enquiry and being satisfied that the only heirs of Khader Miran were his three widows and his daughter, and that the entire estate was in their possession, and that there were no other heirs.This finding is not challenged before us, but counsel for the plaintiff argues that when in a suit to enforce a mortgage instituted after the death of a muslim debtor one or more out of the heirs of the deceased debtor is or are not impleaded in the suit and decree is obtained, what passes to theat the Court sale is only the right, title and interest in the properties of the heirs of the deceased debtor who were impleaded in the suit.On this question, there has been a sharp conflict of opinion amongst the High Courts in India.

Reasoning:
5. It is necessary in the first instance to set out certain principles which are accepted as well settled. The estate of a muslim dying intestate devolves under the Islamic law upon his heirs at the moment of his death, i.e., the estate vests immediately in each heir in proportion to the shares ordained by the personal law and the interest of each heir is separate and distinct. Each heir is under the personal law liable to satisfy the debts of the deceased only to the extent of the share of the debt proportionate to his share in the estate. A creditor of a muslim dying intestate may sue all the heirs of the deceased and where the estate of the deceased has not been distributed between the heirs he may execute the decree against the property as a whole without regard to the extent of the liability of the heirs inter se. The creditor is, however, not bound to sue all the heirs: the creditor may sue some only of the heirs and obtain a decree against those heirs, and liability for satisfaction of the decree may be enforced against individual heirs in the property held by them proportionate to their share in the estate. It is also settled that where the defendant in an action dies after institution of the suit, the creditor after diligent and bona fide enquiry impleads some but not all the heirs as legal representatives, the heirs so impleaded represent the estate of the deceased and a decree obtained against them binds not only those heirs who are impleaded in the action but the entire estate including the interest of those not brought on the record: Daya Ram v. Shyam Sundari. AIR 1955 SCCourt has, therefore, recognised the principle of representation of the estate by some heirs where the defendant dies during the pendency of a suit to enforce a claim against him, and not all the heirs are brought on the record. If after bona fide enquiry some but not all the heirs of a deceased defendant are brought on the record, the heirs so brought on the record; the heirs so brought on the record represent the entire estate of the deceased, and the decision of the Court in the absence of fraud or collusion binds those who are not brought on the record as well as those who are impleaded eo nomine. Daya Rams case. AIR 1965 SC 1049  , it is true did not relate to the estate of a deceased muslim, but the rule enunciated is of the domain of procedural law and applies to all communities irrespective of the religious persuasion on personal law. Counsel for the plaintiff says that this rule applies only to cases where the defendant dies after institution of the suit, and does not apply where a suit is instituted against the heirs of a deceased debtor. The reason suggested is that by the combined operation of O. 22, Rr. 4 and 5, Code of Civil Procedure there is a decision of the Court that persons impleaded are the heirs of the deceased and are allowed to be brought on the record as his heirs and legal representatives. Reliance is also placed upon the definition of legal representative in S. 2 (11) of the Code of Civil Procedure. It is submitted that where persons are either expressly or by implication directed or permitted by an order of the Court to represent the estate, in the absence of fraud or collusion the heirs brought on the record will represent the entire estate, and the decree passed against them and proceedings taken pursuant thereto will be binding upon the heirs not so impleaded. But where the plaintiff institutes a suit against certain persons as legal representatives of the deceased debtor there is no representation to the estate by some only of the heirs of the deceased where the deceased was a muslim. On this point there has been, as already stated, conflict of opinion and in some High Courts from time to time different views have been expressed. To seek elucidation of principle from an analysis of the numerous decisions of the cases may turn out a futile pursuit. That is not because we do not hold the opinions expressed by eminent Judges on this question in great respect, but because in our view it would conduce to greater clarity if the ground on which the decisions have proceeded are examined in the light of the true principles applicable.6. In seeking its solution the problem whether a decree obtained by a creditor in a suit instituted against some of the heirs of a deceased muslim for payment of debts due by him is binding on the other heirs has been approached from different angles: (i) by the analogy of Hindu law where on devolution of property on death of a Hindu upon members of a joint Hindu family or a widow the estate of the deceased is represented by the manager or the widow, and the creditor in a suit properly instituted against the manger or the widow may obtain a decree which binds all the persons having interest in the estate; (ii) the rule of Mahomedan law as set out in Hamiltons Hedaya, 2nd Edn. P. 349. Bk. XX, Ch. 4 (relating to the duties of the Kazee): for any one of the heirs of a deceased persons stands as litigant on behalf of all the others, with respect to anything due to or by the deceased, whether it be debt or substance, since the decree of the Kazi in such case is in reality either in favour of or against the deceased; and any of the heirs may stand as his representative with respect to such decree. * * * * To this it is objected. If one heir be litigant on behalf of the others, it would follow that each creditor is entitled to have recourse to him for payment of his demand, whereas, according to law, each is only obliged to pay his own share. Reply: The creditors are entitled to have recourse to one of several heirs only in a case where all the effects are in the hands of that heir. This is what is stated in the Jama Kabeer: and the reason of it is that although any one of the heirs may act as plaintiff in a cause on behalf of the others, yet he cannot act as defendant on their behalf, unless the whole of the effects be in his possession.; (iii) that a creditor of the deceased may sue one of the heirs who is in possession of the whole or any part of the estate, without joining other heirs as defendants, for administration of the estate and for recovery of the entire debt, and get a decree against the entire estate; and (iv) on the strict rules of Islamic law that devolution of inheritance takes place immediately upon the death of the ancestor, and jus representation is being foreign to the Islamic law of inheritance, only those heirs who are sued by the creditor of the deceased ancestor are liable to satisfy the debt proportionate to their interest in the estate.7. The first view was enunciated by the Calcutta High Court in Mt. Nuzeerun v. Moulvie Ameerooddin, (1875) 24 Suth WR 3, and was adopted by the Bombay High Court in Khurshetbibi v. Keso Vinayek, (1888), ILR 12 Bom 101; Davalava v. Bhimaji, (1896) ILR 20 Bom 338: and Virchand v. Kondu, ILR 39 Bom 729: (AIR 1915 Bom 272  ).8. The second view though pressed for acceptance before the Courts has not met with approval. The rules of procedure enunciated by the Muhammadan lawyers have no application under the Indian system of jurisprudence to the trial of actions in our Courts and as observed by Mahmood, J., in Jafri Begam v. Amir Muhammad Khan, (1885) ILR 7 All. 822 (FB), at p.It must be recalled that whether a decree obtained by a creditor against the heirs of a deceased muslim is binding upon the entire estate or only of those who were impleaded eo nomine is not a question to be determined on the personal law either of the deceased or of the defendant in the suit. It is a part of the law of procedure which regulates all matters going to the remedy, and when the matter passes into the domain of procedure, it must be regulated by the law governing the action of the Court.on may undoubtedly lie at the instance of a creditior for and on behalf of the all the creditors for an order that the Court do enter upon administration of the estate and do pay to the creditors claiming the amount either the whole or such amount as may be rateably payable to each creditor out of the estate after satisfying the primary liabilities of the estate. A suit by a creditor may if appropriate cases, where the procedure prescribed in that behalf is followed, be treated as anbut every action instituted by a creditor of a deceased debtor to recover a debt due out of his estate in the hands of some or all the heirs is not anA person in possession of the whole or a part of the estate which originally belonged to a debtor dying intestate does not clothe himself with a right to represent other persons who are interested in the estate. Such a person may by intermeddling with the estate be regarded as executor deand may render himself liable accordingly, but thereby he cannot represent those whose estate he has intermeddled with. An administrator appointed by the Court would represent the estate, and a creditor may sue him for recovery of the debts due out of the estate. In anproperly instituted, the Court may take upon itself the duty to administer the estate out of which the debts may be satisfied. But a simple action for recovery of a debt from the estate of a deceased debtor will not be regarded as an action for administration.14. Ordinarily the Court does not regard a decree binding upon a person who was not impleaded eo nomine in the action. But to that rule there are certain recognised exceptions. Where by the personal law governing the absent heir the heir impleaded represents him interests in the estate of the deceased, there is yet another exception which is evolved in the larger interest of administration of justice. If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate. The Court will undobtedly investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the Court. The Court will also enquire whether there was a real contest in the suit, and may for that purpose ascertain whether there was any special defence which the absent defendant could put forward, but which was not put forward. Where however on account of a bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially, in the absence of the fraud or collusion or other ground which taint the decree, a decree passed against the persons impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on the record. This principle applies to all parties irrespective of their religious persuasion.15. A few illustrative cases which support this principle may be noticed. In Chaturbujadoss Kushaldoss and Sons v. Rajamanicka Mudali, ILR 54 Mad 212  : (AIR 1930 Mad 930  ), a debtor died leaving a will bequeathing his estate to his nephew subject to certain dispositions. In ignorance of the will, and bona fide believing that the widow was the proper legal representative, a creditor of the deceased brought a suit against her alone and obtained a decree ex parte for satisfaction of the debt out of the husbands estate and satisfied his claim by sale of certain items of the estate in her hands. A nephew of the deceased who was a devisee under the will sued to set aside the decree and sale in execution thereof. It was held by the High Court of Madras that as the creditor bona fide believed the widow was the proper legal representative and as she was then interested in defending the estate and sufficiently represented the estate and as the creditor got his decree without any fraud or collusion with her, it was binding on the nephew who was the residuary legatee under the will. In dealing with this question, Madhavan Nair, J., observed at p. 218 (of ILR Mad): (at p. 934 of AIR).The appellant and his brother Mohammad Ismail were both minors when the action for enforcement of the mortgage in favour of Narsimha Reddy was instituted. The mortgaged property was in the possession of the three widows and a daughter of Khader Miran, and the other mortgagors. It is also found that Narsimha Reddy had made bona fide enquiry and has not come to learn about the existence of any other heirs. It is also not the case of the appellant that he had any special defence to the suit which if he was impleaded as a party to the suit he could have set up, nor is there any ground for holding that there was no fair or real trial of the action.