Mt. Krishna Vati Babu and Others vs Mt. Gunjari

Agarwala, J.—This is an appeal by the defendants and arises out of a suit by the plaintiff for a declaration that a decree obtained by the appellants is not binding on her and for an injunction restraining the appellants from executing that decree.

The appellants'' case is that one Jhalia was a tenant at will of a certain house belonging to the appellants. On her death, the appellants settled it with Jhalia''s sister Phulia and Ramkishun, the son of Mt. Gunjari, daughter of Phulia, as joint tenants. According to the appellants this was a tenancy at will. A suit was instituted to eject these tenants on the ground that they were not rendering service as potters to the appellants as they had agreed to do. While this suit was pending Phulia died. An application was made stating that Ramkishun was her legal representative and should be substituted in her place. The suit resulted in a decree for ejectment being passed in favour of the appellants. The present suit is by Gunjari, the daughter of Phulia, for a declaration that the decree is not binding on her and for an injunction to restrain the decree-holders from disturbing her possession by executing the decree.

The first Court negatived the plaintiff''s claim that the tenancy of Phulia and Ramkishun was a permanent one and found that they wore mere tenants at will. In that view of the matter, the Court dismissed the plaintiff''s suit. The appellate Court has held that it is not necessary in the circumstances of the case to decide whether the tenancy was a permanent one as claimed by the plaintiff or a mere tenancy at will as alleged by the appellants. The Court has taken the view that the plaintiff was a legal representative of her mother Phulia and that as there is no decree passed against her she is not bound by the decree and as she is in possession she is entitled to an injunction restraining the decree-holders from disturbing that possession in execution of their decree.

On behalf of the defendants-appellants, it has been contended that in the circumstances Phulia was sufficiently represented by Kamkishun in the suit and that that representation has the effect of binding the plaintiff in the present suit who is the true representative of Phulia.

Reliance was placed on the decision in Sanna Govappa Vs. Rodda Sanna Govappa and Others, in which the circumstances in which a person may be held to be bound by a decree to which he is not a party are discussed. It was there observed that when a person who is impleaded as a legal representative of another, which he is not, in a suit sufficiently represents the estate, the result is that a decree passed against him in an assumed representative character is binding on the true representative though the latter was no party to the same. The conditions necessary for making such representation effective against the true representative are that the plaintiff must have acted bona fide, the decree obtained must be free from fraud or collusion, and the person wrongly impleaded must have been impleaded in a representative capacity and the decree must have been passed against him as representing the estate of the deceased; the plaintiff must have been ignorant of facts which operate to displace the title of the supposed legal representative and the person having the real title must not have intervened during the pendency of the suit. That decision is in accord with the principle of the decision in Malkarjun v. Narhari (01) 25 Bom. 337. In such cases the first requisite is that the plaintiff must have acted bona fide.

In Kaliappan Servaikaran v. Varadarajulu (10) 33 Mad. 75, referred to in the case relied upon by the learned advocate for the appellants, on the death of the defendant, his divided brother''s son was brought on the record as his legal representative ignoring his daughter who was the true legal representative. No attempt was made to justify the plaintiff in ignoring the true legal representative of the deceased defendant. It was held that in the absence of any satisfactory explanation, plaintiff could not be held to have acted bona fide and accordingly the decree was not binding on the daughter of the deceased defendant.

Here, in the present litigation, the decree-holder made no attempt to give any explanation of his act in not impleading the daughter of the deceased defendant and, in my opinion, therefore he cannot claim to have acted bona fide in this matter. As the plaintiff has been found to be in possession of the house in question she is entitled to protect that possession until there is in existence a decree which is binding on her.

The decision of the Court below is affirmed and this appeal is dismissed with costs.