1. The relevant facts leading to the present appeal are as follows :
On August 4, 1941, one Debendra Chandra Roy (hereinafter referred to as Deben) and his son Indu Bhusan Roy (hereinafter referred to as Indu) executed a mortgage in favour of the Respondent No. 1, the Calcutta Commercial Bank, in liquidation (hereinafter referred to as the Bank), to secure the repayment of a sum of Rs. 8,000/- and odd. The mortgaged property was a piece of rent-free Brahmottar land, situate in Belghoria in the district of 24 Parganas, the mortgagors holding permanent intermediary interest therein.
2. In March 1950, a suit was instituted by the Bank for enforcement of the said security against Deben and his two sons Santi and Indu being Defendants Nos. 1. 2 and 4 respectively. Two other persons viz., Soroshi and Aswini were impleaded as Defendants Nos. 3 and 5 respectively.
3. Deben died in May, 1950 leaving behind him, surviving his widow Sm. Saraiu Bala and his 4 sons viz., the said Santi (Respondent No. 2), Indu (Respondent No. 3). Haridas (Appellant No, 1) and Narayan (Respondent No. 4), Deben left also one daughter viz., Sm. Sadhana Roy Chowdhury being Appellant No. 2 in the above appeal.
4. On July 1. 1954 before the Hon'ble Mr. Justice Bachawat, the plaintiff Bank conceded that it was not entitled to claim relief against all the parties to the suit jointly. The learned Judge accordingly gave leave to the plaintiff to amend the plaint. Paragraph 7 of the original plaint was allowed to be deleted and a fresh paragraph was allowed to be substituted. The names of Soroshi and Aswini were deleted from the category of the Defendants. The total revised amount claimed, was for Rs. 13,000/- and odd including a sum ot Rs. 4,500/- and odd, being on account of interest, calculated upto 28th February, 1950.
5. On or about July 9, 1954 a Master's Summons was taken out on behalf of the plaintiff Bank, inter alia for setting aside the abatement, caused on the death of Deben and for substitution of the names of his two sons Santi and Indu. Respondents 2 and 3 in the above appeal as the legal heirs and representatives of the deceased Deben. All the papers in the suit are not before us, but we find in the affidavit filed in July 1950, (1954?) that attempts were made by the Liquidator of the Bank to find out who are the legal heirs and representatives of the deceased Deben.
6. In August 1955 the order of abatement was set aside, the death of Deben was recorded and Santi and Indu were impleaded for self as well as the sons, heirs and legal representatives of the said deceased Deben.
7. In November of the said year, Santi and Indu filed their written statement inter alia stating generally, that all the legal heirs of the deceased Deben have not been brought on the record. They, however, did not specifically state that they had two other brothers and one sister, as well as their widowed mother, as stated above. In spite of the said defence in the written statement as to the non-impleading of all the legal representatives of the deceased Deben, the mortgage suit was decreed in the preliminary form on September 6, 1956 and that again by consent.
8. On July 23, 1962 Deben's widow, Sm. Saraiu Bala died leaving behind her surviving, the aforesaid four sons and the said daughter Sm. Sadhana, since married.
9. After the said preliminary decree, the special Referee appointed by the Court, submitted his report on September 14, 1965 in which we find that a sum of Rs. 25,000/- and odd was due to the Bank (in liquidation) including the interest, calculated upto 31st August, 1964. Objection was taken to the said report and the matter came up before Justice S. K. Datta, who by his order, dated June 7, 1966 varied the said report to the extent that a sum of Rupees 15,380/- was due and payable by the defendants to the Bank, calculated upto the date of the said order with interest @ 6 per cent per annum.
10. The Bank thereafter made an application for final decree of the suit. The matter came up before his Lordship the Hon'ble Mr. Justice P. B. Mukharji (as his Lordship then was). On January 9, 1967, the final decree was passed, appointing a Receiver, directing him to sell the mortgaged property either by public auction or by private treaty as he thought fit.
11. In pursuance of the said final decree, the Receiver duly took possession of the mortgaged property and held various meetings. With the consent of the parties, the Receiver divided the mortgaged property (total area being 16 cottas and odd) into several plots. A plan was prepared by an Engineer which was also approved by the defendants. In December 1967, the Receiver entered into an agreement with a purchaser for the sale of Plot No. 1, measuring 2 Cottas and odd at Rs. 2,000/- per Cotta.
12. On June 7, 1968 the said Santi and Indu took out a Master's Summons disclosing for the first time, inter alia the names of all the said four sons and the said daughter of the deceased Deben.
13. On June 7, 1969 a Notice of Motion was taken out on behalf of the Respondent Bank praying inter alia that the death of the widow Sm. Saraju Bala and the names of all the other heirs (Haridas, Appellant No. 1, Narayan, Respondent No. 4 and Sm. Sadhana Roy Chowdhury, Appellant No. 2 in the present appeal) be recorded in the proceedings in the suit after setting aside abatement if any and the intending sale to the purchaser be confirmed. This application was opposed by the heirs of the deceased Deben.
14. On July 16, 1969 our learned brother, Justice A. N. Sen, made an order in terms of prayers (b) to (f) of the petition, holding inter alia, that "in the facts of this particular case and in view of the fact that the preliminary and final decree had already been passed, there cannot be any question of any abatement of the suit and in view of the provisions of the Banking Companies Act there is also no question of any limitation".
15. The present appeal is directed against the said order, preferred by Haridas and Sm. Sadhana, being the appellants Nos. 1 and 2 respectively. The other three sons viz., Santi. Indu and Narayan are impleaded as respondents 2 to 4 respectively. The Bank, still in liquidation, is Respondent No. 1.
16. We have heard at length Mr. Dey the learned Counsel appearing on behalf of the appellants. His main contention was that the application on Which the impugned order has been passed, should be dismissed, as the suit has already abated for not bringing on record within time all the heirs and legal representatives of the deceased Deben as well as of his deceased widow Sm. Saraiu Bala. The Supreme Court decision in the case of Mohd. Sulaiman v. Mohd. Ismail, was cited by Mr. Dey in support of his contention. It was also submitted that there were no diligent and bona fide enquiries made on behalf of the Bank as to the number of heirs and legal representatives of the deceased Deben and accordingly the application should be dismissed and the appeal should be allowed.
17. Mr. Sen, the learned Counsel appearing on behalf of the Bank, submitted that the said Supreme Court decision goes against the contention of Mr. Dey rather than supporting him. It was further submitted that the entire property viz., the Estate of the deceased was fully represented, originally by the two sons and later on, by the Receiver who went into possession of the property in pursuance of the final decree passed by this Court in the mortgaged suit He further submitted that even if there be imperfect representation, it should be remembered that the decree being a mortgage decree, it will bind the Estate. It is also stated that there was no case of fraud and collusion between the parties at any stage of the suit, right from the beginning either before the trial Court or in this Court. Our attention was drawn that this point was not even argued by Mr. Dey. According to Mr. Sen when the Receiver took possession of the property long time back, the other heirs including the appellants who have been left out, did not take any objection from the beginning till date. It was suggested that the two sons (Santi and Indu) are now setting up their other brother and sister to raise these frivolous pleas. Lastly he contended that in view of the special protection given by the Banking Companies Act and Ordinance coming into force in 1953, to the Banks in liquidation, no question of limitation arises, specially in view of Section 45 (O) of the said Act.
18. Mr. Law, the learned Advocate appearing on behalf of the respondents 2 and 3 (Shanti and Indu) supports the argument of Mr. Dey, advanced on behalf of the appellants.
19. The provisions of Section 2(11), Order 22, Rules 3, 4, 5 and 11, as well as the provisions of Order 34, Rule 4 of the Code of Civil Procedure are considered by us.
20. Fourteen decisions are considered, six of which are of the Supreme Court, one of the Judicial Committee of the Privy Council, two of this Court, four of the Madras High Court and one of the Orissa High Court They are : State of Punjab v. Nathu Ram, ; Ram Sarup v. Munshi, ; Daya Ram v. Shyam Sundari,
; Mohd Sulaiman v. Md. Ismail, ;
Dolai Maliko v. Krushna Chandra, ; Ram Das v. Dy. Director of Consolidation. ; Khiarajmal v. Diam, (1905) 32 Ind App 23 = ILR 32 Cal 296 (PC); Bibhuti v. Narendra, ; Prabhat v. Birendra, (1969) 73 Cal WN 932; K. M. Marakkayar v. M. K. Ayyar, (1903) ILR 26 Mad 230; K. K. Behari v. Kunhipakki, AIR 1930 Mad 69; Chaturbhujadoss Kushaldoss v. Rajamanicka Mudali, AIR 1930 Mad 930 = ILR 54 Mad 212; Shanmugham v. Govindasami, ; Sarat Chandra v. Bichitranada Sahu, AIR 1951 Orissa 212 (229).
21. Six other decisions of the Supreme Court and a Full Bench decision of this Court touching the point of abatement are also considered but they do not relate to the point at issue. They are: Union of India v. Ramcharan, ; Rameshwar Prasad v. Shyam Beharilal Jagannath, ; Union of India v. Sree Ram Bohra,
; Sri Chand v. Jagdish Pershad, ;
22. On consideration of the aforesaid decisions, it seems safe to assume that in similar circumstances the following principles of law (though not exhaustive) are to be applied and the suit then would not be visited by an order of abatement :
(a) Where the plaintiff has impleaded under a genuine belief, all the heirs of the deceased known to him and obtains a decree, the same would be binding upon the other heirs interested in the estate, provided there was a diligent and bona fide enquiry made by the plaintiff to find out all the heirs of the deceased and provided further, there be no prejudice to the absent heirs on the passing of such a decree. It is also to be seen "whether there could have been any sufficient and special defence by the left out heirs, which were not or could not be tried in the suit.
(b) The decree so passed, would be binding on the Estate even if any heir of the deceased is left out through oversight or on account of some doubts as to who are the heirs, and if there is no fraud, collusion or other like grounds between the parties to the suit.
(c) If the trial of the action is real and fair and there is no motive to leave out the other heirs.
(d) If a decree, preliminary or final, has already been passed.
(e) The considerations which should generally weigh with the Court in deciding such questions including the full representation of the Estate are the fact of possession of the entire estate by the Administrator or by the Receiver or by those heirs who have only been impleaded.
(f) The exercise of the discretion by the Courts in not impleading the left out heirs must be judicial and cautious and the Courts must have jurisdiction to exercise such discretion.
23. Circumstances in the instant case do not indicate that there has not been a fair and real trial of the suit. The Bank proceeded under a genuine belief that the two sons who were brought on record, were the only legal representatives of the deceased, Deben. Bona fide attempts were made by the liquidator of the Bank to find out the names of all the heirs but they failed to get all the names. Moreover, the other sons of the deceased did not disclose the names of all the heirs. There was a real contest in the mortgage suit, though ultimately the preliminary decree was a consent decree. No argument was advanced that there could have been sufficient and independent defence by the left out heirs or that there was fraud or collusion of the Bank with the other parties or that the Bank had any motive to leave out the other heirs. The Receiver was all along in possession for all these years of the entire estate without any objection by any of the heirs, either made parties or left out
24. I disagree with the contentions of the appellant both on points of fact and law. The grounds seem to be tenuous. They are too little and too late. In view of the foregoing discussions, we are not called upon to decide other points of law raised by the Respondent Bank.
25. In the result we dismiss this appeal with costs. In the larger interest of administration of justice we hope that there would be the end of the litigation, started more than 20 years ago for recovery of such a small sum.
Ajay K. Basu, J.
26. I agree. Appeal dismissed.