Amiya Bala Datta v. Suresh Chandra Bhadra — 1980 DIGILAW 159 (CAL)

JUDGMENT B.C. Chakrabarti J: This is an appeal from an order of dismissal of an objection under S. 47 of the Code of Civil Procedure being Misc. Case No. 56 of 1973 of the 3rd Court of learned Subordinate Judge at Alipore. 2. The following facts are not in dispute: The respondent Suresh Chandra Bhadra as plaintiff institute a suit for partition, Title Suit No. 48 of 1958 of the 3rd Court of learned Subordinate Judge at Alipore, against Phanibhusan Dutta and others. A preliminary decree was passed on contest on 8.12.65 by the aforesaid decree 8 annas share of the plaintiff was declared and separate allotment of 4 annas share of the defendants 3 and 4 were directed. After the passing of the preliminary decree phanibhusan Dutta who was defendant No. 1 in the suit died on 2.4.1967. On the application of the plaintiff dated 29.6.1967 the heirs of Phanibhusan Dutta namely his widow Amiya Bala Dutta (appellant before us) 6 sons and 2 daughters were brought on record. Subsequently a Commissioner for effecting partition was appointed, the parties having failed to effect amicable partition in terms of the preliminary decree. The final decree was passed on 6.5.1969. 3. Thereafter the plaintiff decree holder filed an execution case for separate possession of his share in 1973 which was registered as Title Execution No. 12 of 1973. In the said Execution Case the appellant filed an objection under S. 47 of the Civil Procedure Code alleging that all the heirs of the deceased Judgment debtor Phanibhusan Dutta had not been brought on record. Her case is that the deceased left behind 7 sons and 6 daughters besides the widow. She also alleged that in the substitution petition two of the sons and a daughter have been wrongly named as Bidhubhusan, Sidhu and Bhabani. She further alleged that the allotment made by the partition Commissioner was unfair and iniquitous. The substantial point on which the objection under S. 47 was fought out was that since all the heirs of Phanibhusan had not been brought on record, the final decree was void, illegal and inoperative and not binding on the heirs of Phanibhusan and therefore not executable as against them. 4. The substantial point on which the objection under S. 47 was fought out was that since all the heirs of Phanibhusan had not been brought on record, the final decree was void, illegal and inoperative and not binding on the heirs of Phanibhusan and therefore not executable as against them. 4. The decree holder opposed the application under S. 47 mainly on the plea that all the heirs and legal representatives of the deceased, as far as it could be ascertained upon enquiry, were made parties and no objection was taken at any stage of the proceedings for making the decree final that any heirs or legal representative has been left out or that anybody has b, en wrongly named or described. It is also his case that the estate of the deceased Phanibhusan was substantially represented and that the objector and one of her daughters namely Sm. Nila alias Mamata Dutta participated in the proceedings for making the decree final. 5. At the hearing of the Misc. Case the petitioner Sm. Amiya Bala Dutta examined herself as a witness and affirmed that her husband died leaving behind 7 sons and 6 daughters, all of whom had not been brought on record. She complained that she did not receive any notice regarding the Commission for making the decree final. She denied that Bidhubhusan and Sidhubhusan who have been brought on record are her sons but alleged that their names arc Binoy and Debu. She admitted that one Ramani Dhar was a close neighbour of theirs and that her husband was acquainted with him. 6. On the side of the Opposite Party the decree holder examined himself to say that he substituted the heirs of Phanibhusan after making due enquiries from Ramani Dhar. He also asserted that at one stage of the Commission proceedings the objector Amiyabala and her daughter Mamata were actually present. The other witness is the advocate commissioner who effected the partition being appointed by the Court for the purpose. He says that he visited the locality after serving due notices upon the parties. He also says that the parties present during the sittings put their signatures in token of their participation. It was suggested to him that he had made the allotments improperly being influenced by the decree holder and he naturally denied the suggestion. 7. He says that he visited the locality after serving due notices upon the parties. He also says that the parties present during the sittings put their signatures in token of their participation. It was suggested to him that he had made the allotments improperly being influenced by the decree holder and he naturally denied the suggestion. 7. The allegations about the impropriety of the allotment was beyond the scope of an objection under S. 47 C.P. Code. The Judgment debtor appellant, if she felt aggrieved by such allotment and the final decree: passed on the basis thereof should have preferred an appeal against the final decree. Not having done so it I not upon to her now to challenge the final decree on that ground. The Misc. Case was fought before the learned Subordinate Judge on the only question whether the heirs of Phanibhusan had been brought on record and whether if some had been left out, the estate of Phanibhusan could or could not be said to have been duly represented. It was contended before the learned Subordinate Judge on the authority of a decision reported in 65 CWN p. 540 and another reported in AIR 1966 SC p. 792 that in the absence of fraud or collusion or other grounds which taints the decree, the decree passed against the persons impleaded as heirs binds the estate even if other persons interested in the state were not brought on record. The learned Subordinate Judge felt that since those were not cases for partition the principle laid down therein were wholly applicable to the facts of the present case. He found that all the heirs of Phanibhusan had not been brought on record and that in the circumstances of the case it could not be said that the estate of Phanibhusan was substantially represented by those on the record. But then the learned Subordinate Judge felt that the Court at any rate had the jurisdiction to pass the final decree and he merely sitting as a Court of execution was incompetent to go behind the decree. In such view of the matter he dismissed the Misc. Case on that ground alone. Hence the appeal by the widow of Phanibhusan Datta. 8. In such view of the matter he dismissed the Misc. Case on that ground alone. Hence the appeal by the widow of Phanibhusan Datta. 8. The decree holder Suresh Chandra Bhadra and another party namely Sukumar Majumder filed cross objections contending that the learned Court below was wrong in has view that the all the heirs of deceased Phanibhusan had not been brought on record that that the Court below should have held that the estate had been sufficiently represented and that the persons who had been brought on record, not having raised any objection as to any other heirs being left out were not entitled to urge the point at the execution stage. 9. Mr. Sengupta in supporting the appeal contended that in a suit for partition an the co-sharers are necessary parties, that on the death of Phanibhusan the estate left by him was at once split up amongst the heirs of Phanibhusan and that since all such heirs were not on record the decree was void and in executable as against them. 10. Before coming to consider the law on the point it would be eminently proper to bear in mind the factual position which has transpired in evidence. The evidence shows that Phanibhusan had 7 sons and 6 daughters. The substitution petition (Ext 1) shows that 6 sons and 2 daughters besides the widow herself were brought on record. The evidence also establishes that before making the application for substitution, due enquiries were made from an admitted neighbour who was likely to know the details and against whom there was no allegation of any kind. The allegation that Bidhubhusan was also known as Binoybhusan though denied by the appellant stands proved by a petition filed by the substituted defendants Satyabhusan, Indubhusan, Binoybhusan alias Bidhubhusan and others, This petition clearly shows that Binoybhusan was also known as Bidhubhusan. Consequently the evidence of the mother Amiyabala in this regard is apparently untrue. It also transpires in evidence that at least on one of the days of the sitting by the pleader commissioner, one of the daughters namely Mamata Dutta signed the minutes of the proceedings. The evidence of the pleader commissioner is that those present signed the proceedings in his presence. Therefore it follows that some of the heirs of Phanibhusan did not in fact participate in the proceedings. 11. The evidence of the pleader commissioner is that those present signed the proceedings in his presence. Therefore it follows that some of the heirs of Phanibhusan did not in fact participate in the proceedings. 11. Bearing these facts in mind let us now consider the 1egal position, In the case of N. K. Mohammad Soleman v. N. C. Ismail, AIR 1966 SC p. 792 it has been held that where on a 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 even partially, in the absence, of fraud or collusion which taints the decree, a decree passed against the persons impleaded as heirs hinds the estate, even though other persons interested in the estate are not brought on record. This case also lays down that this rule will not apply to a case where the circumstances indicate that there has not been a fair or real trial or that the absent heir had a special defence which was not and could not be tried. In the case of Doloi Malikko v. Krishna Chandra AIR 1967 SC p. 49 it has bee n held that even in a case where on the death of one of the appellants, his heirs apply for bringing themselves on record, unless there is fraud or collusion or that against the absent heir, there was a special case which ,vas not tried, there is no reason why the heirs who have applied for being brought on the record could not be allowed to represent the entire estate including those not brought on record. This however, was a case where the heirs themselves applied to be substituted and is distinguishable on that score. So far as the earlier case is concerned though it was not a suit for partition we do not see how that really makes any substantial difference so far as the principle laid down is concerned. The other case referred to before the learned Subordinate Judge is the case of Paresh Nath v. United Bank of India reported in 65 CWN p. 540. This also was not a case for petition. The principles laid down however seems to be equally applicable to the facts of the present case before us. The other case referred to before the learned Subordinate Judge is the case of Paresh Nath v. United Bank of India reported in 65 CWN p. 540. This also was not a case for petition. The principles laid down however seems to be equally applicable to the facts of the present case before us. It has been held in that case that if a person making the application bona fide believe, after reasonable and diligent enquiry that the heirs sought to be substituted are the only heirs of the deceased plaintiff or the deceased defendant that application is a valid application for substitution. It further lays down that the substituted defendants have a duty to disclose to the Court that the heirs who had be in substituted by the plaintiff are not all the heirs left by the deceased defendant. The learned Subordinate Judge held that this case also is of no avail because in this case the substituted heirs did not appear at all and hence there could be no question or fastening any duty on them to disclose as to who if at all any, has been left out. We have indicated already that factually the finding of the learned Subordinate Judge is not correct because some at least of the heirs are proved to have participated in the proceedings. There is nothing on record to indicate that any objection as to any other heir being left out was ever taken. 12. Mr. Sengupta in support of his contention that a suit for partition stands on a different footing relied on the case of Dhanuka Singh v. Soudagar Siugh, AIR 1955 Putna 240. In that case it was held that where in an appeal arising out of a suit for partition of Hindu joint family property, one of the respondent coparcener dies leaving behind him his' widow and sons the whole appeal would abate in the absence of substitution of the widow in his place even though the sons were already on record as parties to the suit. Another case, Ramsebak v. Musammad Deorati AIR 1962 Patna p. 178 was also relied on by Mr. Sengupta. This too was a suit for partition and here also the question was as to what would be the effect on non substitution of the widow of the deceased, plaintiff. Another case, Ramsebak v. Musammad Deorati AIR 1962 Patna p. 178 was also relied on by Mr. Sengupta. This too was a suit for partition and here also the question was as to what would be the effect on non substitution of the widow of the deceased, plaintiff. These suits are distinguishable for the simple reason that there the sons though on record were not on the record in their capacity as heirs but in their capacity as coperceners. The widow, under the Hindu' Women's right to Property Act though had a limited interest was yet entitled to seek partition on the death of her husband as a heir and since she was not impleaded it could not be said that the estate left by the, deceased was even partitially represented because the sons who were already on record could not be said to represent the, state of the deceased as heirs. 13. The other case relied on by Mr. Sengupta, Umapati Chowdhury v. Subodh Chandra Chowdhury AIR 1953 Cal. 377 merely reaffirms the basic principle that a partition decree obtained in the absence of necessary parties is ineffective and those who w, re absent have a good prima fade case for restraining the decree holder from giving effect to that decree. This decision does not touch the point involved namely the effect of exclusion of some of the heirs being substituted due to a bona fide mistake and the heirs who have been substituted failing to take, any objection as to non-joinder of necessary parties. The other case cited by Mr. Sengupta, N. Joiram v. The Revenue Division, Officer, AIR 1979 SC 1393 lays down a principle which has no bearing to the facts of the present case and is absolutely b side the point. Similarly the case of Awadh Behari v. Sudarson AIR 1965 Patna 427 is also beside the point. There the question involved was to the effect of an abatement, if it is not set aside under Order 22 Rule 9. In the instant case there was no question of abatement after the preliminary decree was passed. 14. The decisions so far considered do not indicate why the principle laid down by the Supreme Court in the case, reported in AIR 1966 SC p. 792 and 65 CWN p. 540 (supra) should be distinguished on the sole ground that these were riot suits for 'partition. 14. The decisions so far considered do not indicate why the principle laid down by the Supreme Court in the case, reported in AIR 1966 SC p. 792 and 65 CWN p. 540 (supra) should be distinguished on the sole ground that these were riot suits for 'partition. On the contrary Mr. Mukhjee in opposing the appeal drew our attention to, the case of Dayaram v. Shyamasundari, AIR 1965 SC 1049 . In that case it has been held that where a plaintiff or appellant after diligent and bona fide enquiry ascertain who the legal representative of a deceased defendant are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, the impleaded legal representative sufficiently represent the estate of the deceased and a decision, obtained with, them on record bind not merely those impleaded but the entire estate including those not brought on record. This was an appeal arising out of a suit for partition. There was a decree in favour of one Shyamasundari which was the subject matter of the appeal. During the pendency of the appeal Shyamasundari died and her heirs excluding two were brought on record. The question was whether there has been an abatement of the appeal against Shyamasundari. In the context of the facts of the case it was observed as stated above. 15. While elucidating this point the Supreme Court referred to an earlier decision of the Madras High Court (ILR 26 Mad. 230) with approval. In that case on the death of the defendant the person impleaded as the legal representative raised no objection that he was not the sale legal representative of the deceased. In the instant case before us also there was no such allegation. 10. Therefore this decision of the Supreme Court arising out of a suit for partition also supports the view that in the absence of fraud and collusion if after diligent and bona fide inquiry the heirs and legal representative are brought on record excluding some whose names did not transpire during enquiry and when the persons thus substituted also do not raise any objection as to and other heir being left out the estate of the d ceased should be deemed to have been sufficiently represented by these on record. This principle applies to a suit for partition as well. This principle applies to a suit for partition as well. We have already indicated that in the instant case the decree holder made enquiries from a person who was admittedly a close neighbour of the deceased. There is no allegation of fraud or collusion and there is not a suggestion even as to how the decree holder was interested in omitting some of the heirs. It is in evidence that at least the appellant and her daughter Mamata were apprised of the final decree proceedings and they had participated therein. There was no objection at any point of time until after the final decree was made as to the omission to bring some of the heirs on record. There is not faintest suggestion that any of the heirs left out had any special defence which could not be tried. In such circumstances, we find that the estate of the deceased Phanibhusan Dutta had been sufficiently represented by those who were brought on record after his death. In that view of the matter the finding of the learned Subordinate Judge on this point must be overruled. 17. The learned Subordinate Judge dismissed the application under S. 47 C.P. Code on the ground that the was not competent to go behind the decree. There can hardly be any dispute with the proposition but then there is no question, in the view we have taken of the Court going behind the decree, The final decree as made in the case is a valid decree and therefore executable. The appeal therefore fails though on different considerations. 18. The decree holder filed a cross objection which we consider was clearly unnecessary. The decree holder as respondent may even without taking any cross objection support the decree on any of the grounds deeded against him in the Court below. In the instant case the respondent is supporting the ultimate order that has been passed though on different grounds. He is entitled to do so under the law, even without filing any cross objection. The cross objection being unnecessary in the facts of the case no order on the same is called for. 19. The appeal fails and is hereby dismissed on contest: There will be on order for costs. The records be sent down forthwith. 20. He is entitled to do so under the law, even without filing any cross objection. The cross objection being unnecessary in the facts of the case no order on the same is called for. 19. The appeal fails and is hereby dismissed on contest: There will be on order for costs. The records be sent down forthwith. 20. The appellant is permitted to withdraw the amount of 1000/-(one thousand) deposited pursuant to the order of this Court in Title Execution Case No. 12/73 of the 3rd Court of the learned Subordinate Judge Alipore. Anil K. Sen, J: I agree. Appeal dismissed.