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TMI Blog1964 (9) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... are. 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to finish the completion of the building he was taking a risk and he must accept the consequences. 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstructions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in entering into the agreement the coowners 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 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 aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove 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([1962] 2 S.C. R. 636) case. The other decision in Ram Sarup v. Munshi([1963] 3 S.C.R. 858) is also an illustration of the identical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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