Case: Daya Ram And Others Vs. Shyam Sundari

2. 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, for 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 Lal 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.3. 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 on December 15, 1921 into between the Improvement Trust and Mata Din as a result of these negotiations and the steps taken by Mata Din in consequence 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, yd. 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. The relevance of this agreement and of the constructions effected by Mata Din in pursuance of the agreement we shall reserve for consideration later.4. 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 formers 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 Judge allowed her appeal. At the stage of the hearing of the appeal a claim was made by Mata Din that he was entitled to compensation for the buildings 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 observeddefinite 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 land on the 1st December, 1921. We cannot for a moment believe that the building was furnished 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 thethe 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.5. 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 Sham 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 the 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 he worked out.6. 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. 2620/- 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 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. 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 thesepreliminary decree for partition of the appellants 1 / 3rd share in plots 599 and 600 area 1122.99 sq. yd. be passed and that it is hereby directed that the appellant shall be allotted in 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 in the appellants share, but if they do not, the appellant shall be entitled to take possession over them without any payment shall become theiris 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.

Reasoning:
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. There 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 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 reason 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 bin 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 effect improvements on it. We consider, therefore, that the decree passed by the High Court is not open to objection and the appeal has accordingly toin 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 O. 22, R. or of the law which would militate against thisdecisions to which we have referred as well as certain others have laid down, and we consider this is also correct, that though the appeal has not abated, when once it is brought to the notice of the Court hering 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 it 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 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 recordalmost 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 that decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record. The principle those not brought on record. The principle of this rule of law thus explained in an early decision of the Madras High Court in Kadir Mohindeen v. Muthukrishna Ayyar, ILR 26 Mad 230  . 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 circumstance, the Court observedour opinion a person whom the plaintiff alleges to be the legal representative of the deceased defendant and whose name of the Court enter; on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit and in the absence of any fraud or collusion the decree passed in such suit will bind such estate ..... 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 representatives or may not be the true legals to which we have referred as well as certain others have laid down, and we consider this is also correct, that though the appeal has not abated, when once it is brought to the notice of the Court hering 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 it 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 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