Krishnankutty Warrier vs Bhadranayakom

This is an application to revise an order of the District Munsiff of Trichur rejecting a claim to certain amounts attached in execution of a decree. One Ikkanda Warrier, deceased, had executed a promissory note in favour of the Respondent to this application. A suit was instituted on foot of it after Ikkanda Warrior''s death and a decree obtained thereon. Ikkanda Warrier died in Makanam 1117 and according to the Cochin Marumakkathayam Act by which he was governed, his self-acquired and separate properties devolved on his childless widow and his thavazhi in equal halves. The widow was not made a Defendant in the suit. The persons who were impleaded as Defendants were the eldest sons of Ikkanda Warrier''s two sisters and the common Karanavan of his tarwad. Defendant 1, the Karnavan of Ikkanda Warrier''s thavazhi contested the suit. He disputed the genuineness of the promissory note and contended that in any view a suit instituted in 1118 on a promissory note alleged to have been executed in 1109 was clearly time barred. The Plaintiff relied on Ikkanda Warrier''s acknowledgments in writing to keep the claim alive. In the written statement filed by Defendant 1 it was also pointed out that Ikkanda Warrier''s heirs were his widow and his thavazhi, that Defendant 8, the common Karnavan was not one of Ikkanda Warrier''s heirs and that Defendant 1 by himself or together with Defendant 2 the eldest son of the second sister cannot and did not represent the thavazhi and that a decree against the assets of Ikkanda Warrier cannot be passed unless the remaining members of the thavazhi and the widow are also impleaded as Defendants. At the final hearing of the suit, the Plaintiff represented that he was prepared to take the risk in not impleading Ikkanda Warrier''s widow or anybody else and that he only wanted a decree against the assets of the deceased with the Defendants alone on the record. Defendant 1 did not then press his objection as to non-joinder and on the promissory note being proved his objection to its genuineness and the contention that the suit was time-barred were also not pressed. The Court thereupon passed a decree in favour of the Plaintiff substantially in terms of the plaint. In execution of that decree certain amounts awarded to Ikkanda warrier in a land acquisition proceedings L. a. 59 of 1120 of the Trichur District Court were attached. Four persons came forward with the claim petition giving rise to this revision raising objections to the attachment. The first two Petitioners are Ikkanda Warrier''s children by his first wife who died in 1990. By reason of their mother having died long before the Cochin Marumakkathayam Act, 1113 was enacted these Petitioners did not become Ikkanda Warrier''s heirs under that Act, but pursuant to a direction given by the second wife during her lifetime, her nephew and sole heir transferred all the interests she had obtained in Ikkanda Warrier''s self-acquired and separate properties to Petitioners 1 and 2. The second wife died in Chingom 1119. The suit was instituted in Dhanu 1118, but the decree was passed only in Thulam 1119, after her death.

The assignment in favour of Petitioners 1 and 2 was on 7th Vrischigom 1119 and the attachment was effected in Meenam 1120. Their objection to the attachment was that so long as the widow or her heir, their assignor, was not made a Defendant to the suit decree cannot bind the half share the widow obtained and that the attachment was therefore unsustainable to that extent. The two remaining Petitioners to the claim petition are members of Ikkanda Warrier''s thavazhi and their objection is that a decree obtained without impleading all the members of the thavazhi cannot bind them or the thavazhi and that the attachment should therefore be raised with respect to the remaining half share as well. The lower Court found that Ikkanda Warrier''s estate was sufficiently represented in the suit and that the decree was therefore binding on all his heirs. The claim petition was hence found to be without merit and it was dismissed. The Petitioners now move this Court in revision.

The lower Court found the decree to be valid by applying the rule of substantial representation of a deceased person''s estate to the suit which resulted in the decree. That approach is in my view open to objection for more reasons than one. Section 36, Cochin Marumakkathayam Act, has enacted a rule of representation in regard to suits against Marumakkathayam tarwads and a Court in deciding whether a decree passed against any such tarwad is valid or not has to satisfy itself as to whether the statutory requirement has been complied with or not. No other consideration can be brought to bear on the decision of the question. In one part of its order, the lower Court has applied its mind to that aspect of the matter and held though not in so many words that there has been sufficient compliance with Section 86 so as to make the decree valid and binding as against the thavazhi. It is a mixed question of fact and law whether there has been sufficient compliance with Section 36 and sitting in revision we do not propose to examine whether the Munsiff''s view is right. When it is common ground that the party aggrieved by the order under revision has a right for a fresh suit it is unnecessary for a Court of revision to examine whether the Munsiff''s finding will stand close scrutiny. We would therefore confirm the lower Court''s order so far as the half share of the thavazhi is concerned and for the present hold the attachment to be good to the extent of their half share.

The position is however different with respect to the other half. In the first place the rule of substantial representation of a deceased person''s estate in a legal proceeding is seldom applied to a case where the suit was not at its inception laid against the debtor himself. See Kadir Mohideen v. Muthukrishna Ayyar 26 Mar. 230, Parvathi Amma v. Ummarkutty Haji 7 KER L. R. 291 , Appiyan v. Mahammed Ummal 15 Trav. L. Jour 232, David v. John 26 Trav. L. Jour 1124 and Amarchand and Another Vs. Parmanand and Others Here as noticed already, Ikkanda Warrier died in 1117 and the suit was brought only in 1118.

Another impediment in the way of the application of the said rule to the case on hand is that the persons impleaded as Defendants or the thavazhi for that matter, are not shown to have had an actual possession or management or even the right to possession or management of the deceased person''s estate. Section 22, Marumakkathayam Act, enacts that the self-acquired and separate property left undisposed of by a marumakkathayee male leaving a widow or children or both as also undivided marumakkathayam heirs shall be in the possession of the widow until a division is effected. In Khiarajmal v. Daim 32 Cal. 296 the Privy Council observed thus with reference to the rule of substantial representation:

The Indian Courts have properly exercised a wide discretion in allowing the estate of a deceased debtor to be represented by one member of the family, and in refusing to disturb judicial sales on the mere ground that some members of the family who were minors, were not made parties to the proceedings, if it appears that there was a debt justly due from the deceased and no prejudice is shown to the absent minors. But these are usually oases where the person named as Defendant is de facto manager of a Hindu family property or has the assets out of which the decree is to to satisfied under his control.

The case on hand does not satisfy this test or requirement. Further, the rule of substantial representation cannot at all be invoked in a case where the failure to implead all the heirs is not caused bona fide. On this point I shall straight way refer to a recent pronouncement of the Federal Court of India in AIR 1949 195 (Federal Court) In that case at pp. 205 and 206 of the report Mahajan J. has observed as follows:

Reference was also made to decisions of certain High Courts of India which have expressed the view that in cases where some legal representatives are unwilling to join as parties or one or more of them are unknown, a bona fide application by those who are willing to join in making the application will be sufficient compliance with the provision of 0rder 22, Rule 3 and 4 and a decree passed in a suit binds the whole estate. The ratio of these exceptional cases is that for making the partial representation effective against the true representatives the Plaintiff or the decree-holder must have acted bona fide, the decree obtained must have been free from fraud or collusion, the person impleaded must have been impleaded in a representative capacity and the decree or order must have been passed against him as a representative of the estate of the deceased. None of these conditions are satisfied in the present case. It is not even arguable that the parties and the arbitrator in ignoring the widow acted bona fide, i.e., with due care and caution. Ignorance of law is no excuse. Moreover, by the exercise of due care and caution such ignorance could have been dispelled.

In the present case Defendant 1 had expressly stated in his written statement that the widow was also one of the heirs of Ikkanda Warrier, but the Plaintiff was prepared to run the risk of the exigencies of not impleading her and asked for a decree against the assets of Ikkanda Warrier with the three persons whom he had impleaded as Defendants alone on the record. He would then seem to have been inclined to defy the law and he cannot now turn round and say that ho acted bona fide in not impleading the widow or her successors-in-interest in seeking to obtain a decree against the assets of Ikkanda Warrier. It could not be said of the estate of a deceased person that it exists independently of the person or persons on whom it devolves. No person can ordinarily be bound by a decree or a proceeding to which he is not a party or properly represented on the record. As against such persons the decree or a proceeding in execution under it would be void. See Khiarajmal v. Daim 32 Cal. 296. The widow''s interest in the property would seem to have been ignored altogether when a decree was sought against the estate and by no possibility could it be considered that she was represented in the suit by Defendants 1 to 3. The plaint never sought to clothe them with any representative capacity nor does the decree purport to be one against persons named and others represented by them.

For the foregoing reasons, I cannot find my way to hold that the widow''s half share was substantially represented in the suit in which the decree under execution was passed. The rule of substantial representation is one the Courts have forged on grounds of expediency. The ordinary rule is that a person who is not a party to the decree cannot be bound by it and that the Court has no jurisdiction to sell the property of such persons. That rule must prevail in this case. The revision petition therefore succeeds in part and the attachment over the widow''s half share now owned by Petitioners 1 and 2 will be raised.

Before parting with this case it must be mentioned that at the hearing of this petition, it was brought to our notice that the Petitioners had preferred an appeal to the Trichur District Court against the order sought to be revised here. The learned Counsel for the Petitioners admitted that the appeal was incompetent and the hearing before us proceeded on that basis. In the circumstances of the case we make no order for costs in this revision or in the Court below. The lower Court''s order allowing costs to the decree holder will stand annulled.