Supreme Court: Decree passed after impleading some of legal heirs is binding on legal heirs who were not party to proceeding

 It is true that the cases of the Madras and Orissa High Courts did not relate to the estate of a Muslim debtor. But the rule, as already stated, stated, is one of procedure and not of personal law, and applies to a Muslim debtor's estate as well as to a Hindu debtor's estate. It is true that in the case of a debtor who is sued for recovery of the debt, and if he died after the institution of the suit, there is some order of the court-express or implied - recognising that the person sought to be brought on record are the heirs and legal representatives of the deceased debtor. The court records a conclusion, if not expressly, by implication, that they represent the estate. It was held by this court, as already stated earlier, in a recent judgment in Daya Ram's case that failure to bring the other heirs on record, if there is a bona fide enquiry as to the existence of the heirs does no affect the validity of the decree and the proceeding taken thereunder. In a suit instituted against the heirs of a deceased debtor, it is the creditor who takes upon himself the responsibility to bring certain persons as heirs and legal representatives of the deceased on the record. If he has proceeded bona fide and after due enquiry and under a belief that the persons who are brought on the record are the only legal representatives, it would make no difference in principle that in the former case the heirs have been brought on the record during the pendency of the suit, the creditor having died since the institution of the suit and in the other at the instance of the plaintiff certain persons are impleaded as legal representatives of the deceased person. In either case, where after due enquiry certain persons are impleaded after diligent and bona fide enquiry in the genuine belief that they are the only persons interested in the estate, the whole estate of the deceased will be duly represented by those persons who are brought on the record or impleaded and the decree will be binding upon the entire estate. This rule will of course not apply to cases where there has been fraud or collusion between the creditor and the heir impleaded or where there are other circumstances which indicate that there has not been a fair or real trial, or that the absent heir has a special defense which was not and could not be tried in the earlier proceeding.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 432 of 1963

Decided On: 23.09.1965

N.K. Mohammad Sulaiman Vs. N.C. Mohammad Ismail and Ors.

Hon'ble Judges/Coram:

J.C. Shah, K. Subba Rao, K.N. Wanchoo, S.M. Sikri and Y.V. Chandrachud, JJ.

Citation: AIR. 1966 S.C. 792

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Whether prejudice will be caused to minor child if his father is not appointed as his guardian?

In the present case, what has happened is that an application for appointment of a guardian was filed in I. A. 242 of 1958 supported by an affidavit-Ex. A-3, The third defendant who was the natural father of the plaintiff was proposed as guardian and the affidavit in support of the application contained an averment that Ramaswami, the natural father, has no adverse interest against the minor and that he was a proper person to be appointed as guardian. The affidavit also contained an averment that in case Ramasami was not willing to act as guardian, a Court guardian may be appointed. The court issued notice on 28-2-1958 on the application and the application was posted to 3-3-1958. Ramaswami, the natural father was served with notice. The application was called on 3-3-1958 and Ramaswami expressed his willingness to be the guardian, Krishnammal, that is, the adoptive mother, also appeared on that day and expressed her willingness to be the guardian and Krishnammal would appear to have filed a vakalat also, dt. 3-3-1958 (Ex. A-2). It may be noted that although Krishnammal's name was not mentioned in the affidavit filed in support of the application, she appeared in Court and expressed her willingness to be appointed as guardian and in fact filed a vakalat representing as guardian. Ramamsami who had no interest adverse to that of the adopted son represented his son in the further proceedings and he filed an appeal against the preliminary decree on his behalf and as guardian of his son and in the second appeal in the High Court he represented the minor's interest. He put forward the adoption of the minor in the above proceedings and no contention was put forward by him contrary to the minor's interest. In the above circumstances, it cannot be said that any prejudice has been caused to the minor on account of the formal defect in not passing a formal order appointing him as guardian ad litem to the minor. A Full Bench of the Patna High Court in Ram Asray v. Sheonandan, AIR 1916 Pat 267 , held that where in a suit any application of guardian ad litem is made and the guardian nominated in the application is allowed to represent the minor at the trial, a mere omission to make a formal order of appointment as guardian is not fatal to the suit. In Nirmal Chandra v. Khandu Ghose MANU/WB/0115/1965 : AIR1965Cal562 a similar view was taken. Banerjee, J. observes as follows:

"The doctrine of substantial representation is a matter of substance and not of form. Where a minor who was effectively represented in a suit by a guardian although not formally appointed, suffers no prejudice on account of the informality, the absence of a formal order of appointment of a guardian is not fatal to the suit. In this view I find support from the following observations of the Privy Council in (1903) 30 Ind App 182 ."
10. Following the above decisions, I am of opinion that the minor's interests have been adequately safeguarded in the former suit by the natural father of the minor representing him and taking part in the proceedings in the court and the mere fact that a formal order was not passed will not vitiate the decree, and that there has been a substantial representation of the minor in the former suit.
IN THE HIGH COURT OF MADRAS

Second Appeal No. 1153 of 1968

Decided On: 04.02.1972

 Rangammal Vs. Minor Appasami and Ors.

Hon'ble Judges/Coram:
Raghavan, J.
Citation:AIR 1973 Madras 12

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What is doctrine of substantial representation?

In the present case, what has happened is that an application for appointment of a guardian was filed in I. A. 242 of 1958 supported by an affidavit-Ex. A-3, The third defendant who was the natural father of the plaintiff was proposed as guardian and the affidavit in support of the application contained an averment that Ramaswami, the natural father, has no adverse interest against the minor and that he was a proper person to be appointed as guardian. The affidavit also contained an averment that in case Ramasami was not willing to act as guardian, a Court guardian may be appointed. The court issued notice on 28-2-1958 on the application and the application was posted to 3-3-1958. Ramaswami, the natural father was served with notice. The application was called on 3-3-1958 and Ramaswami expressed his willingness to be the guardian, Krishnammal, that is, the adoptive mother, also appeared on that day and expressed her willingness to be the guardian and Krishnammal would appear to have filed a vakalat also, dt. 3-3-1958 (Ex. A-2). It may be noted that although Krishnammal's name was not mentioned in the affidavit filed in support of the application, she appeared in Court and expressed her willingness to be appointed as guardian and in fact filed a vakalat representing as guardian. Ramamsami who had no interest adverse to that of the adopted son represented his son in the further proceedings and he filed an appeal against the preliminary decree on his behalf and as guardian of his son and in the second appeal in the High Court he represented the minor's interest. He put forward the adoption of the minor in the above proceedings and no contention was put forward by him contrary to the minor's interest. In the above circumstances, it cannot be said that any prejudice has been caused to the minor on account of the formal defect in not passing a formal order appointing him as guardian ad litem to the minor. A Full Bench of the Patna High Court in Ram Asray v. Sheonandan, AIR 1916 Pat 267 , held that where in a suit any application of guardian ad litem is made and the guardian nominated in the application is allowed to represent the minor at the trial, a mere omission to make a formal order of appointment as guardian is not fatal to the suit. In Nirmal Chandra v. Khandu Ghose MANU/WB/0115/1965 : AIR1965Cal562 a similar view was taken. Banerjee, J. observes as follows:

"The doctrine of substantial representation is a matter of substance and not of form. Where a minor who was effectively represented in a suit by a guardian although not formally appointed, suffers no prejudice on account of the informality, the absence of a formal order of appointment of a guardian is not fatal to the suit. In this view I find support from the following observations of the Privy Council in (1903) 30 Ind App 182 ."
10. Following the above decisions, I am of opinion that the minor's interests have been adequately safeguarded in the former suit by the natural father of the minor representing him and taking part in the proceedings in the court and the mere fact that a formal order was not passed will not vitiate the decree, and that there has been a substantial representation of the minor in the former suit.
IN THE HIGH COURT OF MADRAS

Second Appeal No. 1153 of 1968

Decided On: 04.02.1972

 Rangammal Vs. Minor Appasami and Ors.

Hon'ble Judges/Coram:
Raghavan, J.
Citation:AIR 1973 Madras 12

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Whether Theory of representation is applicable to muslim law?

The Madras High Court adopted the above view of the Bombay High Court in the earlier decisions. But in the full bench case of Abdul Majeeth v. Krishnamachariar (1915) I.L.R. 40 Mad. 243 that Court followed the Allahabad High Court in holding that a sale effected, to pay off a debt due from his estate by some of the heirs of a deceased Mahomedan who may be in possession of the whole or part of the estate was binding on them to the extent of their share only and did not bind the other heirs. The reasoning of that decision proceeds on the ground that under Mahomedan law each heir inherits a separate and distinct share and that the theory of representation is unknown to the Mahomedan law, or in other words one heir does not represent the other heirs-(see Dallu Mal v. Hari Das (1901) I.L.R. 23 All. 263 and Manni Gir v. Amar Jati (1935) I.L.R. 58 All. 594. It is obvious ' that if the estate vested immediately on the death of a Mahomedan in each of his heirs in proportion to his share according to the Mahomedan law on account of several inheritance, the theory of representation can have no place. 


Madras High Court

M.Alagiri vs Philomina on 22 December, 2010

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