The court dismissed an execution second appeal, holding that the claim petitioners representing an estate of a deceased owner are bound by a decree obtained against some legal heirs due to substantial representation, absent proof of fraud or collusion.
Execution Second Appeal dismissed without costs; claim petitioners bound by the decree.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.SOMARAJAN
WEDNESDAY,THE 14TH DAY OF NOVEMBER,2018/23RD KARTHIKA, 1940
Ex.SA.No.15 of 2012
AGAINST THE JUDGMENT AND DECREE DATED 10.8.2012 IN AS NO.36/2011 OF THE SUB COURT, KOYILANDY
AGAINST THE ORDER DATED 24.11.2011 IN E.A.NO.225/2005 IN E.P.NO.102/2005 IN OS 10/2003 OF THE MUNSIFF'S COURT, PERAMBARA
APPELLANTS/APPELLANTS/CLAIM PETITIONERS:
1 THAYYIL GOPALAN, S/O.KANARAN, AGED 50 YEARS, COOLIE, PERAMBRA AMSOM DESOM, KOYILANDY TALUK.
2 THAYYIL KUMARAN, S/O.KANARAN, AGED 45 YEARS, COOLIE, PERAMBRA AMSOM, DESOM, KOYILANDY TALUK.
3 THAYYIL RAJAN, S/O.KANARAN, AGED 42 YEARS, COOLIE, PERAMBRA AMSOM, DESOM, KOYILANDY TALUK.
4 THAYYIL MINI, D/O.KANARAN, AGED 30 YEARS, COOLIE, PERAMBRA AMSOM, DESOM, KOYILANDY TALUK.
BY ADVS. SRI.O.V.MANIPRASAD SRI.SAJU J PANICKER
RESPONDENTS/RESPONDENTS/DECREE HOLDER & JUDGMENT DEBTOR:
1 THAYYIL MADHAVI, D/O.RAMAN, AGED 64 YEARS, PERAMBRA AMSOM, DESOM, KOYILANDY TALUK - 673 525.
2 THAYYIL GOPI, S/O.KANARAN, AGED 37 YEARS, COOLIE, PERAMBRA AMSOM, DESOM, KOYILANDY TALUK - 673 525.
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R1 BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY R2 TO R5 BY ADV.SRI.E.S.ASHRAF
THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Ex.S.A.No.15 of 2012
“C.R.”
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JUDGMENT
An application in E.A.No.225 of 2005 under Order XXI Rule 97 of the Code of Civil Procedure submitted by four siblings of defendant Nos.1 to 3 resisting the execution of decree passed in O.S.No.10 of 2003 by the Munsiff's Court, Perambra was dismissed by the Execution Court by its order dated 24.11.2011. It was taken up in appeal in A.S.No.36 of 2011 wherein the order of the execution court was confirmed. Aggrieved by the said order/decree, the claim petitioners came up with this Execution Second Appeal.
Nos.1 to 3 and the claim petitioners. They
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obtained right and title over the property by devolution on the death of their father. The property was not partitioned by any registered deed of partition. After the passing of the decree fixing the northern and western boundaries it was put in execution. The execution of the decree was objected by the claim petitioners mainly on the reason that they are not parties to the decree and hence not binding on them.
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aside the exparte decree was allowed on terms, it
was not complied with and ultimately an exparte decree came into force. It is also submitted that since it is an exparte decree, it cannot be said that defendant Nos.1 to 3 were contesting the suit representing the estate of the deceased Kanaran.
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subvenit” - Equity aids the vigilant not the indolent - A person who has been wronged must act relatively swiftly to preserve his rights. Otherwise, he is guilty of laches. An untoward delay in litigation with the presumed intent of denying claims or to keep away as a silent spectator, would bring the person within the liability of equitable rule of laches and acquiescence. During trial stage of the suit, at the time of visit of the commissioner, one of the
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legal heirs who was not made as a party to the suit applied before the Commissioner raising coownership right over the property claiming that it is the property left out by their deceased father, but no steps were taken to implead himself into the suit or to prefer an appeal as an aggrieved person against the decree and judgment but remained as a silent spectator for a long period. The present claim petitioners also stand on the same pedestal and they have not taken any steps to implead themselves into the party array of the suit or to prefer an appeal in spite of notice of pending litigation against the estate of deceased Kanaran.
expression “a person is said to have notice” under Section 3 of the Transfer of Property Act is squarely applicable to a pending litigation when it came to the notice of any interested person or when there is a wilful abstention from an enquiry or search which he ought to have made or gross negligence. A person is said to have notice of a
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fact when he actually knows that fact. The
principle of constructive notice was also brought under the exhaustive definition to the expression “when a person is said to have notice” and any wilful abstention from an enquiry or search which he ought to have made, or gross negligence would amount to constructive notice. Failure to make enquiry or search which ought to have been done would constitute a valid notice and when it is proved that the pending litigation against some of the legal heirs came to their notice or any wilful abstention from making an enquiry or search which ought to have been done would constitute constructive notice of pending litigation or the decree, if any, passed.
promotes substantial justice based on principle of equity, laches and acquiescence and avoids multiplicity of proceedings. The principle behind
it can be made applicable when there is a substantial representation of common estate,
either in a suit or proceedings, when identical
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or common interests are involved. When the estate
or the common interest was substantially represented, the result would bind on the estate and all those who are having same interest over the estate irrespective of whether they were made as parties to the proceedings or not. The only exception is fraud or collusion in obtaining the decree. A mere non-contest of the suit or the proceedings by the parties does not itself satisfy either fraud or collusion though the same are relevant factors to be looked into in answering fraud or collusion in obtaining a decree. There should be evidence that the decree was obtained by playing fraud or collusion and the burden would be on the person who claims it, otherwise the liability under doctrine of substantial
representation would operate against all those who hold the same interest or identical interest with that of parties to the suit or the proceedings over the estate.
Ismail Saheb and others (AIR 1966 SC 792) the Apex
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Court by relying on the proposition laid down in
Daya Ram and others v. Shyam Sundari and others (AIR 1965 SC 1049) and two decisions of the Madras High Court in Shanmugham Chettiar v. K.A. Govindasami Chettiar and others (AIR 1961 Madras 428) and Chaturbhujadoss Kushaldoss & Sons and another v. Rajamanicka Mudali and others (AIR 1930
Madras 930) settled the legal position as under :
“Where 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 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 is a part of the law of procedure which regulates all matters going to the remedy and applies to all parties irrespective of their personal law.(para 14)
There is no difference in principle
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in the case where a debtor who is sued for recovery of debt, dies after the institution of the suit and his legal representatives are brought on record and a case where the creditor, after making a diligent and a bona fide enquiry, impleads certain heirs as parties to his suit in the genuine belief that they are the only persons interested in the estate. In both the cases 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. (para 17)
This rule will of course not apply to cases where there has been fraud or collusion between the creditor and the heir or where there are other circumstances which 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 earlier proceeding. (para 17)”
collusion or such other sufficient ground in obtaining the decree. No where in the application under Order XXI Rule 97 CPC it is pleaded what is
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the nature of collusion or fraud involved in the suit. An exparte decree was passed in the suit but defendant Nos.1 to 3 had applied for setting aside the exparte decree. Though the said application was allowed on terms it was not complied with by the defendants. Ultimately, an exparte decree came into force. The mere noncontest of the suit cannot be substituted in the place of fraud or collusion unless there is cogent evidence to show otherwise, for which absolutely no material was placed by the claim petitioners.
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bind upon all the legal heirs of the deceased owner/estate holder when there is substantial representation of the estate by some of the legal heirs. So, the claim petitioners are bound by the decree and they cannot maintain an application under Order XXI Rule 97 CPC.
The Execution Second Appeal deserves only a dismissal, I do so, but without costs.
Sd/-
P.SOMARAJAN
JUDGE
ahz/
3 issues framed by the court
Whether a decree against some persons with common interest over an estate binds other persons who were not parties to the suit.
Whether the doctrine of substantial representation applies when the estate is substantially represented by some legal heirs.
Whether a mere non-contest of the suit amounts to fraud or collusion sufficient to avoid the binding effect of a decree on non-parties.
Colour shows how this judgement treated each authority
N.K. Mohd. Sulaiman Sahib v. N.C. Mohd. Ismail Saheb and othersRelied on¶68
N.K.Mohd. Sulaiman Sahib v. N.C.Mohd. Ismail Saheb and others (AIR 1966 SC 792) · Who else cites this
Daya Ram and others v. Shyam Sundari and othersRelied on¶69
Daya Ram and others v. Shyam Sundari and others (AIR 1965 SC 1049) · Who else cites this
Shanmugham Chettiar v. K.A. Govindasami Chettiar and othersReferred¶70
Shanmugham Chettiar v. K.A. Govindasami Chettiar and others (AIR 1961 Madras 428) · Who else cites this
Chaturbhujadoss Kushaldoss & Sons and another v. Rajamanicka Mudali and othersReferred¶70
Chaturbhujadoss Kushaldoss & Sons and another v. Rajamanicka Mudali and others (AIR 1930 Madras 930) · Who else cites this
1 provisions across 1 enactments
THAYYIL GOPALAN and others
THAYYIL MADHAVI and others
P. SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
