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PETITIONER: N.K. MOHAMMAD SULAIMAN

       Vs.

RESPONDENT: N.   C. MOHAMMAD ISMAIL AND OTHERS

DATE OF JUDGMENT: 23/09/1965

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SUBBARAO, K. WANCHOO, K.N. SIKRI, S.M. RAMASWAMI, V.

CITATION:  1966 AIR  792            1966 SCR  (1) 937  CITATOR INFO :  R          1967 SC  49  (3)  RF         1975 SC 733  (33)  RF         1979 SC1393  (29)  F          1989 SC1589  (5)  RF         1990 SC1480  (76)  R          1991 SC 720  (5)

ACT: Legal representatives-Creditor instituting suit for recovery of  debt  against only heirs known to  him  after  bona-fide inquiry-Whether  such  heirs  represent  entire  estate  and decree  in  suit binds heirs not impleaded Personal  law  of deceased-Whether relevant.

HEADNOTE: M, K and L mortgaged certain immovable properties in  favour of  R in 1933.  M died in 1937 and in 1940, R  commenced  an action  for  enforcement of the mortgage against  K,  L  and three widows and a daughter of M. In execution of the decree passed  in the action, the properties were bold at  a  court auction  in 1942 and purchased by R, who  thereafter  trans- ferred them to others. The appellant-plaintiff, claiming that he was the son of  M, instituted a suit in 1950 for a decree for partition of  the mortgaged  properties  "by  metes and  bounds"  and  in  the alternative for a declaration that he was entitled to redeem the mortgage or a portion thereof equal to his share in  the mortgaged properties. The  plaintiff’s  suit  was  resisted by  R  and  the  other alienees  of the properties, mainly on the ground  that  the decree  of 1940 was binding on the appellant for the  estate of M was fully represented in the suit by those who were  in possession  at the time; and that R had made full and  boan- fide  inquiry and had learnt that the three widows  and  the daughter  of  M  were  the only  surviving  members  of  the latter’s family.  The trial court dismissed the appellants’s suit  and this decision was confirmed in appeal by the  High Court. In  appeal  to this Court, the only  contention  pressed  on

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behalf of the appellant was ’,hat when in a suit to  enforce a  mortgage instituted after the death of a  muslim  debtor, one  or more out of the heirs of the deceased is or are  not impleaded in the suit and a decree is obtained, what  passes to  the  auction-purchaser  at the court sale  is  only  the interest  of the heirs who were impleaded; that this was  so because  each heir is under Mohamedan law liable to  satisfy the  debts of the deceased only to the extent of ’the  share of the debt proportionate to his share in the estate. HELD : (i) The appellant was sufficiently represented in the suit  filed  in 1940 and was bound by the decree  passed  in that suit, (ii) Whether  a  decree obtained by a creditor  against  the heirs of a deceased muslim is binding upon the entire estate or  only  on  those who were impleaded eo nomine  is  not  a question to be determined on the personal law either of  the deceased  or of the defendant in the suit.  It is a part  of the  law of procedure which regulates all matters  going  to the  remedy, and when the matter passes into the  domain  of procedure,  it  must be regulated by the law  governing  the action of the court; [944 D] 938 (iii) Where certain persons are impleaded after diligent and bona  fide enquiry in the genuine belief ’,hat they are  the only  persons interested in the estate, the whole estate  of the deceased will be duly represented by the persons who are brought  on the record or impleaded, and the decree will  be binding on the entire estate. [948 G] Daya  Rain  and others v. Shyam Sundari &  others  [1965]  1 S.C.R. 231. followed. If the creditor  has proceeded after such bona fide enquiry, it  would make no difference in principle between a case  in which  a debtor is sued for recovery of a debt and upon  his death  pendente  lite  there  is  an  order  of  the   court recognising   the   persons  brought  on   the   record   as representing  the  estate,  and a case in which  in  a  suit against  the heirs of a deceased debtor, -the  creditor  has taken  upon  himself  the responsibility  to  bring  certain persons on the record as representing the estate. [948 E] This rule will 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  had a special defence which was not and could  not  be tried in the earlier proceeding. [948 H] Case law reviewed.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 432 of 1963. Appeal  from  the Judgment and Decree dated the  August  27, 1958 of Andhra Pradesh High Court in Appeal Suit No. 113  of 1954. C.   Narasimhacharyya  and K. R. Chaudhury, for  the  appel- lant. P. Ram Reddy, for respondents Nos. 4 to 7. P. Ram Reddy and A. V. V. Nair, for respondents Nos. 15, 16, 18 to 20, 22, 23 to 25. The Judgment of the Court was delivered by Shah  J.  Khader Miran, Muhammad Abdul Kassim  and  Muhammad Labhai  mortgaged  on  August 21,  1933,  certain  immovable property in favour of Narsimha Reddy to secure repayment  of Rs.  20,000/-.  Khader Miran died on November 19, 1937.   On

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July  12,  1940  Narsimha  Reddy  commenced  an  action  for enforcement  of the mortgage against Muhammad  Abdul  Kasim, Muhammad  Labhai, and three widows of Khader  Miran  Fathima Bi,  Amina  Bi  and Mahaboob Bi,  and  a  daughter  Muhammad Mariyam  Bi.   A preliminary mortgage decree passed  in  the action on November 25, 1940 was made absolute on October 11, 1941, and in execution of the decree the properties mort-                             939 gaged were sold at a court auction and were purchased by the mortgagee Narsimha Reddy on October 16, 1942, with leave  of the  Court.   Narsimha  Reddy  thereafter  transferred   the properties to P. Chinnamma Reddi and the latter in his  turn alienated portions thereof. N.   K.  Mohammad Sulaiman-hereinafter referred to  as  ’the plaintiff’-claiming  that  he was the son  of  Khader  Miran instituted  suit  No.  125  of 1950  in  the  Court  of  the Subordinate  Judge, Chittoor for a decree for  partition  of the  mortaged  properties by metes and bounds"  and  in  the alternative  for  a  declaration that he  was  entitled  "to redeem the mortgage or portion thereof equal to his share in the mortgaged properties" and for an order against  Narsimha Reddy and the alienees from him to render a true and correct account  of the income of the properties, and for a  further declaration  that the decree and judgment in suit No. 87  of 1940  and  the execution proceedings thereon were  null  and void, and "if necessary to set aside the same." To this suit were impleaded Mahammad Ismail who, it was claimed, was also the  ;on  of  Khader Miran, and was  not  impleaded  in  the earlier  suit,  Mahaboob  Bi the mother  of  the  plaintiff, Mariyam  Bi his step sister, narsimha Reddy  and  twenty-two alienees of the property.  The suit was resisted by Narsimha Reddy  and  the alienees on two principal  grounds-that  the plaintiff  was  not the son of Khader Miran,  and  that  the decree in suit No. 87 of 1940 was in any event binding  upon the  plaintiff  for  the estate of Khadar  Miran  was  fully represented  in the suit by those who were in possession  of the estate of Khader Miran.  On the second plea, it was sub- mitted that Narsimha Reddy had made "full and bona fide  in- quiry" and had come to learn that only the three widows  and daughter  of Khader Miran were the surviving members of  the family  of Khader Miran and that they were in possession  of his  estate,  and that it was not brought to the  notice  of Narsimha  Reddy  at any time that there were,  beside  those impleaded, other heirs to the estate of Khader Miran. The  Trial Court held that the plaintiff who was the son  of Khader  Miran  was "sufficiently represented" by  the  three widows  and the daughter of Khader Miran in suit No.  87  of 1940, and that the plaintiff and his brother Mohammed Ismail were bound by the decree and the sale in execution  thereof, even  though they were not impleaded as parties  eo  nomine. In  appeal to the High court of Andhra Pradesh,  the  decree passed  by the Trial Court, dismissing the plaintiff’s  suit was confirmed.  With certificate 940 granted by the High Court, this appeal is preferred in forma pauperis by the plaintiff. The  Trial Court and the High Court have held that  Narsimha Reddy  had  instituted the mortgage suit after  making  bona fide  enquiry  and being satisfied that the  only  heirs  of Khader  Miran  were his three widows and his  daughter,  and that  the  entire estate was in their possession,  and  that there  were no other heirs.  This finding is not  challenged before us, but counsel for the plaintiff argues that when in a suit to enforce a mortgage instituted after the death of a Muslim  debtor one or more out of the heirs of the  deceased

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debtor  is or are not impleaded in the suit and a decree  is obtained, what passes to the auction-purchaser at the  court sale is only the right, title and interest in the properties of  the heirs of the deceased debtor who were  impleaded  in the suit.  On this question, there has been a sharp conflict of opinion amongst the High Courts in India. It is necessary in  the first instance to set out certain  principles  which are accepted as well settled.  The estate of a muslim  dying intestate  devolves under the Islamic law upon his heirs  at the moment of his death i.e. the estate vests immediately in each  heir  in  proportion to the  shares  ordained  by  the personal  law and the interest of each heir is separate  and distirct.   Each  heir is under the personal law  liable  to satisfy the debts of the deceased only to the extent of  the share of the debt proportionate to his share in the estate . A creditor of a muslim dying intestate may sue all the heirs of  the deceased, and where the estate of the  deceased  has not  been distributed between the heirs, he may execute  the decree against the property as a whole without regard to the extent  of  the  liability  of the  heirs  inter  se.   The- creditor  is  however not bound to sue all  the  heirs:  the creditor may sue some only of the heirs and obtain a  decree against  those heirs, and liability for satisfaction of  the decree  may  be  enforced against individual  heirs  in  the property  held by them proportionate to their share  in  the estate.   It is also settled that where the defendant in  an action dies after institution of the suit, he creditor after diligent -nd bona fide enquiry impleads some but not all the heirs  as  legal  representatives, the  heirs  so  impleaded represent  the estate of the deceased and a decree  obtained against them binds not only those heirs who are impleaded in the  action but the entire estate including the interest  of those  not  brought on the record: Dava Ram  and  others  v. Shyam Sundari & others(1) : This Court at p. 240 observed (1)[1965] 1 S.C.R. 231                             941 .lm15 "The  almost 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 a decision  obtained  with them on record will bind not merely those impleaded but  the entire estate -including those not brought on record." This  Court  has  therefore  recognised  the  principle   of representation  of  the  estate  by  some  heirs  where  the defendant  dies during the pendency of a suit to  enforce  a claim -against him, and not all the heirs are brought on the record.   If after bona fide enquiry, some but not  all  the heirs  of a deceased defendant are ’brought oil the  record, the  heirs  so brought on the record  represent  the  entire state of the deceased, and the decision of the Court in  the absence  of  fraud  or collusion binds  those  who  are  not brought on the record as well as those who are impleaded  eo nomine.  Daya Ram’s case, it is true, did not relate to  the estate  of a deceased Muslim, but the rule enunciated is  of the domain of procedural law and applies to all  communities irrespective  of the religious pursuasion or  personal  law. Counsel  for the plaintiff says that this rule applies  only to  cases where the defendant dies after institution of  the suit, and does not apply where a suit is instituted  against the  heirs  of a deceased debtor.  The reason  suggested  is

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that  by the combined operation of 0. 22 rr. 4 & 5  Code  of Civil  Procedure  there  is a decision  of  the  Court  that persons  impleaded  are the heirs of the  deceased  and  are allowed  to be brought on the record as his heirs and  legal representatives.    Reliance   is  also  placed   upon   the definition  of  "legal representative" in s. 2 (11 ) of  the Code of Civil Procedure.  It is submitted that where persons are either expressly or by implication directed or permitted by  an  order of the Court to represent the estate,  in  the absence  oil  fraud or collusion the heirs  brought  on  the record  will  represent the entire estate,  and  the  decree passed  against them and proceedINGS taken pursuant  thereto will be binding upon the heirs not so impleaded.  But  where the  plaintiff  institutes a suit against certain  person as legal  representatives  of the deceased debtor there  is  no representation  to the estate by some only of the  heirs  of the deceased where the deceased was a muslim. On this  point there  has been, as already stated, conflict of opinion  and in  some High Courts from time to time different views  have been  expressed  To seek elucidation of  principle  from  an analysis 942 of the numerous decisions of the cases may turn out a futile pursuit.   That is not because we do not hold  the  opinions expressed  by  eminent  Judges on  this  question  in  great respect, but because in our view it would conduce to greater clarity if the grounds on which the decisions have proceeded are examined in the light of the true principles applicable. In seeking its solution the problem whether a decree obtain- ed  by a creditor in a suit instituted against some  of  the heirs  of a deceased Muslim for payment of debts due by  him is  binding  on  the other heirs has  been  approached  from different angles : (i) by the analogy of Hindu law where  on devolution of property on death of a Hindu upon members of a joint Hindu family or a widow the estate of the deceased  is represented by the manager or the widow, and the creditor in a suit properly instituted against the manager or the  widow may  obtain  a  decree which binds all  the  persons  having interest  in the estate; (ii) the rule of Mahomedan  law  as set out in Hamilton’s Hedaya, 2nd Edn., p. 349, Bk.  XX, Ch. 4  (relating  to the duties of the Kazee): "for any  one  of the, heirs of a deceased person stands as litigant on behalf of all the others, with respect to anything due to or by the deceased, whether it be debt or substance, since the  decree of  the Kazi in such case is in reality either in favour  of or  against the deceased; and any of the heirs may stand  as his representative with respect to such decree..........  To this  it is objected, "If one heir be litigant on behalf  of the  others, it would follow that each creditor is  entitled to have recourse to him for payment of his demand,  whereas, according  to  law,  each is only obliged  to  pay  his  own share." Reply : "The creditors are entitled to have recourse to one of several heirs only in a case where all the effects are  in the hands of that heir.  This is what is  stated  in the  Jama Kabeer; and the reason of it is that although  any one  of the heirs may act as plaintiff in a cause on  behalf of  the  others,  yet he cannot act as  defendant  on  their behalf,   unless  the  whole  of  the  effects  be  in   his possession";  (iii) that a creditor of the deceased may  sue one  of the heirs who is in possession of the whole  or  any part   of  the  estate,  without  joining  other  heirs   as defendants,  for  administration  of  the  estate  and   for recovery  of the entire debt, and Pet a decree  against  the entire  estate; and (iv) on the strict rules of Islamic  law that devolution of inheritance takes place immediately  upon

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the  death  of the ancestor, and jus  representations  being foreign  to the Islamic law of inheritance, and  only  those heirs who are sued by the creditor of the deceased  ancestor are  liable  to  satisfy the  debt  proportionate  to  their interest in the estate. 943. The first view was enunciated by the Calcutta High Court  in Mussemut  Nuzeerun v. Moulvie Amerooddin(1) and was  adopted by the Bombay High Court in Khurshetbibi v. Kesho Vinayak(2; Davalava v. Bhimaji ( 3 ) and Virchand v. Kondu (4 ) . The  second  view though pressed for acceptance  before  the Courts  has not met with approval.  The rules  of  procedure enunciated  by  the Muhammadan lawyers have  no  application under  the  Indian system of jurisprudence to the  trial  of actions  in  our courts and as observed by Mahmood,  J.,  in Jafri Begam v. Amir Muhammad Khan(") at p. 842:               "     .  and if there are any  claims  against               the estate,     and  they are  litigated,  the               matter passes into the region  of   procedure,               and must be regulated according to the   law               which  governs  the action of the  Court,  The               plaintiff   must  go  to  the   Court   having               jurisdiction,  and institute his  suit  within               limitation,  impleading all the heirs  against               whose shares he seeks to enforce his claim; " The  Calcutta  High  Court  in  Muttyjan  v.  Ahmed  Ally(") accepted  the  third  view and regarded a suit  filed  by  a creditor to recover a debt due from the estate of a deceased muslim  debtor as an administration-action. It  was  further confirmed in Amir Dulhin v. Baijnath Singh(7).  On this rule an  exception  was engrafted in a later  judgment  in  Abbas Naskar v. Chairman, District Board, 24-Parganas(8).  It  was observed  in Abbas Naskar’s case(") that in the case  of  an estate  of  a muslim dying intestate if there  has  been  no distribution  of the estate, and the suit is instituted  for recovery  of  a  debt  the creditor  may  sue  any  heir  in possession  of  the  whole or part  of  the  estate  without joining  the other heirs as defendants, for  realisation  of the  entire  debt passed in such a suit may  be  enforceable against  all the assets that are in his possession.   But  a decree for administration may only be passed where the heirs who  are sued are in possession of the whole or any part  of the estate so as to be liable to account for the same to the rest, or in other words, the suits were against some of  the heirs,  who  are in possession of property  exceeding  their share of the inheritance: where the heirs are in  possession of  the respective shares of inheritance, the principle  can have no (1)  24 W.R. 3. (3)  I.L.R. 20 Bom. 338. (5)  I.L.R. 7 All. 822. (7)  I.L.R. 21 Cal. 31 1. (2)  I.L.R. 12 Bom. 101. (4)  I.L.R. 39 Bom. 729. (6)   I.L.R. 8 Cal. 370). (8)  I.L.R. 59 Cal. 691. 944 application.   The  modified rule accepted by  the  Calcutta High  Court  is that where a heir is in  possession  of  the estate of a deceased muslim on behalf of the other heirs, in a  suit to recover a debt due from the estate a  decree  for administration may be passed. The last view has been uniformly expressed by the  Allahabad High  Court since it was first enunciated by Mahmood J.,  in Jafri  Begam’s case(1).  It may be observed that the  Bombay

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High  Court  in  later decisions has accepted  this  view  : Bhagirthibai  v. Roshanbi (2 ) : Shahasaheb v.  Sadashiv(3): Lala  Miya  v. Manubibi (4 ) and Veerbhadrappa  Shilwant  v. Shekabai(5). We  may  now  examine  whether  the  grounds  on  which  the different views were expressed are sustainable in principle. It  must  be recalled that whether a decree  obtained  by  a creditor  against the heirs of a deceased muslim is  binding upon  the entire estate or only of those who were  impleaded eo nomine is not a question to be determined on the personal law either of the deceased or of the defendant in the  suit. It  is  a part of the law of procedure which  regulates  all matters going to the remedy, and when the matter passes into the  domain  of procedure, it must be regulated by  the  law governing the action of the Court. An administration-action may undoubtedly lie at the instance of a creditor for and on behalf of all the creditors for  an order  that  the Court do enter upon administration  of  the estate  and  do  pay to the creditors  claiming  the  amount either  the whole or such amount as may be rateably  payable to  each  creditor out of the estate  after  satisfying  the primary liabilities of the estate.  A suit by a creditor may in  appropriate  cases, where the procedure   Prescribed  in that  behalf  is followed, be treated as  an  administration action,  but  Very  action instituted by  a  creditor  of  a deceased  debtor to recover a debt due out of his estate  in the hands of some or all the heirs is not an administration- action.   A person in possession of the whole or a  part  of the  estate  which  originally belonged to  a  debtor  dying intestate does not clothe himself with a right to  represent other  persons  who are interested in the  estate.   Such  a person  may by intermeddling with the estate be regarded  is executor   de   sontort  and  may  render   himself   liable accordingly,  but  thereby he cannot represent  those  whose estate he has intermeddled with.  An administrator appointed by the Court would (1) I.L.R. 7 All.822 (2) I.L.R. 43 Bom. 412.  (3) I.L.R. 43 Bom. 575.  (4) I.L.R. 47 Bom. 712.  (5) I.L.R. (1939) Bom. 232.                             945 resent  the estate, and a creditor may sue him for  recovery of  the debts due out of the estate.  In an  administration- action  properly instituted, the Court may take upon  itself the duty to administer the estate out of which the debts may be  satisfied.  But a simple action for recovery of  a  debt from the estate of a deceased debtor will not be regarded as an action for administration. Ordinarily the Court does not regard a decree binding upon a person  who was not impleaded eo nomine in the action.   But to that rule there are certain recognised exceptions.  Where by  the  personal  law governing the absent  heir  the  heir impleaded  represents  his  interest in the  estate  of  the deceased.   There is yet another exception which is  evolved in  the  larger interest of administration of  justice.   If there be a debt justly due and no prejudice is shown to  the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons  interested in  the estate.  The Court will undoubtedly investigate,  if invited, whether the decree was obtained by fraud, collusion or  other means intended to overreach the Court.  The  Court will  also enquire whether there was a real contest  in  the suit,  and may for that purpose ascertain whether there  was

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any  special  defence which the absent defendant  could  put forward,  but which was not put forward.  Where  however  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 applies  to  all  parties irrespective  of  their  religious persuation. A few illustrative cases which support this principle may be noticed.   In   Chaturbujadoss  Kushaldoss   and   Sons   v. Rajamanicka   Mudali(1)  a  debtor  died  leaving   a   will bequeathing  his  estate to his nephew  subject  to  certain dispositions.   In  ignorance  of the will,  and  bona  fide believing   that   the   widow   was   the   proper    legal representative,  a creditor of the deceased brought  a  suit against  her  alone  and  obtained a  decree  ex  parts  for satisfaction  of  the debt out of the husband’s  estate  and satisfied  his claim by sale of certain items of the  estate in  her hands.  A nephew of the deceased who was  a  devisee under  the  will sued to set aside the decree  and  sale  in execution thereof.  It was held by the High Court of (1) I.L.R. 54 Mad. 212. Sup.CI/65-17 946 Madras that as the creditor bona fide believed the widow was the  proper  legal  representative  and  as  she  was   then interested   in  defending  the  estate   and   sufficiently represented  the estate and as the creditor got  his  decree without  any fraud or collusion with her, it was binding  on the nephew who was the residuary legatee under the will.  In dealing  with this question, Madhavan Nair, J., observed  at p. 218 :               "Prima  facie,  a decree will  bind  only  the               parties to it or those claiming through  them;               but  there are exceptions to this  rule.   The               Courts have held that in certain circumstances               when  one  who is not the  true  legal  repre-               sentative of a deceased person is impleaded as               his legal representative, then a decree passed               against  him  in his character  as  the  legal               representative   of  the  deceased  would   be               binding  on the true representative though  he               is not a party to it.  The suit may have  been               instituted    against    the    wrong    legal               representative at the very commencement or the               wrong  legal  representative  may  have   been               brought  on record during the pendency of  the               suit  or after the decree and for purposes  of               execution." The principle so stated derives support from the judgment of the  Judicial Committee in Khairajmal v. Daim(1).   In  that case,  the material facts out of the many complicated  facts which have a bearing on the point under review are these : a suit was instituted for redemption of two mortgages of  1874 in  respect of certain immoveable properties.  The  plea  of the mortagee in substance, was that the equity of redemption had  been  sold in execution of money  decrees  against  the mortgagors  in earlier proceedings and was vested  in  other persons,  and therefore the mortgagors had no right to  sue. One  of such mortgagors was Nabibaksh.  It appeared that  in suit No. 372 of 1879 instituted for recovery of a debt there

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was  reference  to  arbitration, and  Nabibaksh  signed  the reference.   Nabibaksh died shortly thereafter and  his  two widows  and  his  son Muhammad Hassan  named  as  legal  re- presentivs were served with the summons and were willing  to accept the award.  They were also served with the notice  of sale  of the property of Nabibaksh.  An infant  daughter  of Nabibaksh was omitted from the list of heirs impleaded,  but the  entire interest of Nabibaksh was sold in  execution  of the  decree obtained in that suit.  The  Judicial  Committee held   that   the  estate  of  Nabibaksh   as   sufficiently represented  for the purpose of the suit, although the  name of the infant daughter was omitted and (1) L.R. 32 T.A. 23.                             947 that  the share of Nabibaksh in the equity of redemption  in the property sold in execution of the decree in suit No. 372 of  1879 being bound by the sale, was irredeemable.   It  is true that Nabibaksh died after the suit for recovery of  the debt was instituted and his heirs were brought on the record under  a procedure similar to O. 22 r. 4 of the Code of  the Civil Procedure.  But the Judicial Committee did not express the  view that the estate was represented because the  heirs were  brought  on record after the death of Nabibaksh  in  a pending  suit, but apparently on the principle on which  the Madras  High  Court  in Chaturbujadoss  Kushaldoss  &  Sons’ case(1) proceeded.  This view was also expressed by the High Court  of  Orissa  in  Sarat  Chandra  Deb  and  others   v. Bichitrananda  Sahu and others(2), where Jagannadhadas,  J., observed  that  where  proceedings taken bona  fide  by  the creditor against the person actually in possession by virtue of the assertions of a claim to succeed to or represent  the estate of the deceased’; debtor are binding against the real legal  heir,  whether  such proceedings  were  commenced  or continued against the wrong person, and irrespective of  any express or implied decision by the Court that the ,person so impleaded was the proper legal representative. The Court  in that  case recognised that though the title of a persons  to property  cannot normally be affected by any  proceeding  to which  he is not a party, his interest in the  property  may still be bound if he may having regard to the circumstances, be  said  to,  have been  sufficiently  represented  in  the proceeding.  The learned judge observed at p. 445:               "I have, therefore, no hesitation in coming to               the   conclusion   that  where   a   mortgagee               institutes a suit bona fide against the person               in  possession of the estate of  the  deceased               mortgagor,  who  is  in  such  possession   in               assertion  of  a  claim  to  succeed  to  that               estate,  and  where  a  person  purchases  the               mortgaged  property bona fide in execution  of               that  decree,  such purchaser  gets  the  full               title  to the mortgaged property by virtue  of               such  sale and the real heir is bound  thereby               and  that  his only remedy, if at  all,  in  a               proper  case is to get the sale set  aside  by               appropriate proceedings in time." In a recent judgment of the Madras High Court in  Shunmughom Chettiar v. K. A. Govindasami Chettiar and others(3) it  was held that where after the death-of the mortgagor, in a  suit on the mortgage, the mortgagee bona fide and "after due care and’ (1) I.L.R. 54 Mad. 212.     (2) I.L.R. [1950] Cutt. 413. (3)  A.I.R. 1961 Mad. 428. 948 caution" impleads a person who is believed by him to be  the

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legal  representative  of  the  mortgagor  and  who  is   in possession  of  the  mortgaged  property  and  a  decree  is obtained on that footing without the legal representative so impleaded   disclaiming  any  liability,  the  decree   thus obtained   by   the   mortgagee  will   bind   other   legal representatives who may be in existence. It is true that the cases of the Madras & Orissa High Courts did  not relate to the estate of a muslim debtor.   But  the rule,  as  already 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(1) that failure ;to bring the other heirs on record, if there  is  a bona fide enquiry :as to the existence  of  the heirs,  does not affect the validity of the decree  and  the proceedings 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 case 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 the 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  had  a special defence which was not and could not be tried in  the earlier proceeding. (1) [1965] 1 S.C.R. 231.                             949 The  appellant  and his brother Mohammad  Ismail  were  both minors  when the action for enforcement of the  mortgage  in favour of Narsimha Reddy was instituted.  The mortgaged pro- perty was in the possession of the three widows and daughter of Khader Miran, and the other mortgagors.  It is also found that  Narsimha Reddy had made bona fide enquiry and had  not come to learn about the existence of any other heirs.  It is also  not the case of the appellant that he had any  special defence to the suit which if he was impleaded as a party  to the  suit he could have set up, nor is there any ground  for holding that there was no fair or real trial of the action. This  appeal  therefore fails and is dismissed  with  costs. The appellant was permitted to appeal in forma pauperism  He will  pay the court-fee payable on the memo of appeal as  if he had not been permitted to appeal in forma pauperis Appeal dismissed.

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