judgement:
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 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 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 vs 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 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 section 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 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.
The first view was enunciated by the Calcutta High Court in Mussemut Nuzeerun vs Moulvie Amerooddin(1) and was adopted by the Bombay High Court in Khurshetbibi vs Kesho Vinayak(2; Davalava vs Bhimaji ( 3 ) and Virchand vs 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 vs 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 vs 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 vs Baijnath Singh(7).
On this rule an exception was engrafted in a later judgment in Abbas Naskar vs 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) (3) I.L.R. (5) I.L.R. 7 All. 822.
(7) I.L.R. 1.
(2) I.L.R. (4) I.L.R. (6) I.L.R. (8) I.L.R. 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 High Court in later decisions has accepted this view : Bhagirthibai vs Roshanbi (2 ) : Shahasaheb vs Sadashiv(3): Lala Miya vs Manubibi (4 ) and Veerbhadrappa Shilwant vs 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. (3) I.L.R. (4) I.L.R. (5) I.L.R. 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 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 vs 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. 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 vs 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 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 vs 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 vs 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. (2) I.L.R. [1950] Cutt.
(3) A.I.R. 1961 Mad.
948 caution" impleads a person who is believed by him to be the 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) ; 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.

summary:
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 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 vs Shyam Sundari & others ; 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.


judgement:
O. 324 of 1953 under article 32 of the Constitution.
N. section Bindra, (Gurucharan Singh Bakshi, with him) for the petitioners.
Porus A. Mehta for respondent No. 1.
Amar Nath Arora for respondents Nos. 2 to 14.
December 18.
The Judgment of the Court was delivered by GHULAM HASAN J.
This petition by twenty persons under article 32 of the Constitution prays for the issue of a writ of certiorari, mandamus and prohibition 579 or other suitable order or directions, quashing the orders dated the 1st July, 1952, and the 14th October, 1953, passed by the Deputy Commissioner (Deputy Custodian Evacuee Property) Karnal, in the State of East Punjab, hereinafter referred to as the first respondent, whereby the petitioners are alleged to have been deprived of their fundamental right of property and are unable to hold the same within the meaning of article 19 (1) (f) of the Constitution.
The petitioners are displaced persons from Pakistan who migrated to India after the partition of 1947.
They owned certain agricultural land in Tehsil Chunian, District Lahore, which, according to them, was mostly canal irrigated land of the first grade, yielding on an average 16 to 20 maunds of wheat per acre.
It appears that upon partition the East Punjab Government was confronted with the serious problem of settling agricultural lands abandoned by Muslim evacuees from the areas, now called East Punjab and Pepsu.
Accordingly they decided on the 15th September, 1947, to allot evacuee lands for the current Kharif and the Rabi of 1947 48.
This decision was obviously taken with a view to prevent famine and fall in agricultural production in the area, as also to provide means of livelihood for the agricultural refugees.
In pursuance of this policy the petitioners were settled on land in village Dhakala admittedly a first grade village, Tehsil Thanesar, District Karnal, in the State of East Punjab.
Their claims were verified under the provisions of the.
East Punjab Refugees (Registration of Land Claims) Act XII of 1948, They were allotted specific areas of land under the statement of conditions, contained in Notifications Nos.489 1/S and 4892 IS, dated the 8th July, 1949, on quasi permanent basis in lieu of the lands left by them in Pakistan.
Subsequently the petitioner 's lands left in Pakistan are alleged to have been down graded with the result that the lands allotted to them were re allotted on the 25th April, 1951, to Ishar Singh and others who appear as respondents to oppose the present petition.
In July, 1951, the petitioners moved the East Punjab High Court under article 226 for a writ restraining their 76 eviction from the lands but as no allotment had been cancelled by that time they withdrew the petition some time in 1952.
The original allotment was, however, cancelled on the 1st July, 1952.
This order was challenged by a revision under section 27 of the .
The Deputy Custodian General dismissed the revision petition on the 2nd December, 1953, holding that the order of the Deputy Custodian was not illegal or without jurisdiction on the ground that no notice of cancellation of allotment had been issued to them.
It was observed in the course of the judgment that the petitioners had conceded before the Assistant Custodian on the 9th May, 1952, that the lands abandoned by them in Pakistan were second grade lands but had claimed that they should, nevertheless, be allotted first grade lands.
The order of the 1st July, 1952, is the first order which is challenged before us as being without jurisdiction and infringing the fundamental right of the petitioners.
It is alleged in the petition that notwithstanding the cancellation of the allotment, the petitioners remained in actual cultivating possession of the lands allotted to them but an order was passed by the first respondent on the 14th October, 1953, which is to the following effect : " Government have decided that in the case of persons who were able to secure possession of part of land, the order should be deemed to have been implemented.
In the case of M/s Ishar Singh.
Rakha Singh and others of the village Dhokala ' they were in possession of the part of the land before the 6th May, 1953.
As such they should be given possession of the remaining area by ousting Duni Chand and others being II and III grade allottees, but wrongly allotted land in 1st grade village.
" The aforesaid order is said to have been passed without the authority of law and deprives the.
petitioners of their right to bold the property allotted to them, 581 Before dealing with the validity of the impugned orders it will be necessary to refer to a compilation known as the Land Resettlement Manual for displaced persons in Punjab and, Pepsu upon which great reliance was placed by Mr. Bindra on behalf of the petitioners in the course of his arguments.
This book was prepared by Mr. Tirlok Singh, I.C.S., who was Director General of Relief and Rehabilitation in East Punjab and contains the policy decisions of that Government arrived at in respect of the settlement of land upon the refugees soon after partition.
It appears from this book that originally there was a temporary settlement but shortly afterwards an elaborate organization was set up to make allotment of lands on a quasi permanent basis.
The displaced persons put in their claims in regard to the agricultural land they had abandoned in West Punjab and they were verified with the help of Revenue records which were exchanged with the West Punjab Government.
The book has evidently the stamp of authority, as the foreword is written by Mr. P. N. Thapar, I.C.S., Financial Commissioner, Department of Relief and Rehabilitation, and Secretary to the Punjab Government, Relief and Rehabilitation Department.
The Manual shows that in the end.
of 1947, the displaced persons had been allotted lands on a temporary basis but there was an insistent demand for settlement on permanent basis.
In a communique of the 7th February, 1948, a new system of quasipermanent allotment was devised, the object underlying being to allow the displaced persons to remain in quiet and undisturbed enjoyment of the lands allotted to them.
They were not to get proprietary rights or rights of permanent occupation and the very fact that the settlement was quasi permanent shows that it was, not intended to be irrevocable.
, Paragraph 19 of the Manualsays: "Until issues relating to evacuee property are resolved between India and Pakistan, ownership in each country of property abandoned by evacuees continues to rest with them.
This led to the use of the expression quasi permanent as the keyword for the scheme of resettlement introduced in East Punjab and Pepsu.
" The various Evacuee Property Ordinances 582 passed by the Central or the State Governments from time to time which were eventually replaced by the Central Act No. XXXI of 1950, further confirm that the policy underlying the legislation was to provide for the administration of evacuee property for the time being and to manage it until such time as a final decision was reached by the Government of India as to its ultimate destination.
Paragraph 21 of the Manual contains the statement of conditions which Mr. Bindra characterised as the charter of the petitioners ' rights.
This paragraph says that the rights of persons to whom land is given in the scheme of quasi permanent resettlement are defined in East Punjab in two statements of conditions, dated the 8th July, 1949, issued with Notifications Nos.4891/Sand4892/S.
This statement is to be found at page 193 of the Manual.
Paragraph 3 of the statement says that the allotment shall be in favour of displaced persons and for a period for which the land remained vested in the Custodian subject to the provisions of the Act.
Paragraph 8 says: "The allottee paying the rent hereby reserved and observing and performing the several covenants, conditions and stipulations herein on his part contained, shall peace fully hold and enjoy the allotted land during the said term without any interruption by the Custodian or the Rehabilitation Authority.
" It is contended by Mr. Bindra on the strength of these provisions that so long as the land remains vested in the Custodian, the petitioners cannot be deprived of these lands which have been granted to them on a quasi permanent basis and that the allotment could not be cancelled without notice to the petitioners.
We now proceed to dispose of this contention.
It is agreed that the Act in force at the time of the allot.
ment was the East Punjab Evacuees ' (Administration of Property) Act, XIV of 1947.
It defines "allotment" as the grant by the Custodian or a Rehabilitation Authority or any other person duly authorised by the Custodian in this behalf, of a temporary right of use and occupation of evacuee property to any person otherwise than by way of lease.
Section 9 confers powers upon the Custodian in regard to management 583 of property and section 9 (A), sub section (2), empowers the Custodian to cancel any allotment or terminate or amend the conditions of any lease.
Section 22, subsection (2) (ff) confers upon the Provincial Government the power to make rules providing for the circumstances under which leases and allotment may be terminated or the terms thereof be varied.
This Act was in due course replaced by the Central Act XXXI of 1950 (The ).
The definition of allotment in this Act is substantially the same [section 2 (a) ].
Section 12 (1) and section 56 (2) (h) are in substance the counterpart of section 9 (A) and section 22 (ff) of the East Punjab Act of 1947.
That the Deputy Custodian had the jurisdiction to cancel the allotment both under the State and the Central Acts referred to above cannot be seriously contested.
It was in pursuance of the powers conferred by the rules made by the Provincial Government that the Custodian issued the notification of 8th July, 1949.
Rule 14 (2) which is one of the rules framed under section 56, specifies the circumstances under which leases and allotments can be cancelled or varied.
Sub rule (3) says that the Custodian may evict a person who has cured an allotment by misrepresentation or by fraud or if he is found to be in possession of more than one evacuee property or in occupation of accommodation in excess of his require ments.
Sub rule (4) requires the Custodian before passing any, order of cancellation or variation of the terms of a lease, to serve the person or persons concerned with a notice to show cause against the order proposed to be made and to afford him a reasonable opportunity of being heard.
No notice is provided for cancellation of an allotment under the rules.
The obvious answer to this differentiation appears to be that a lease is granted for a definite period and it is only fair to give the lessee a notice before his lease is terminated before the expiry of the stipulated period, whereas the allottee of land under the quasi permanent settlement stands on a different footing.
Be that as it may, the question seems to be academical in the present case, as the petitioners were given full opportunity to, 584 put forward their case before the allotment was cancelled.
The order of the Deputy Custodian General, dated the 2nd December, 1953, rejecting the petitioners ' revision supports this.
That order shows that the Assistant Custodian issued a notice to the petitioners to show cause why the allotment of first grade land, while they were all second grade claimants, should not be cancelled.
The petitioners appeared before him on the 9th May, 1952.
Their 'statements were recorded and they admitted that their land was second grade, whereupon the Assistant Custodian made a report to the Deputy Custodian recommending that the allotment be cancelled.
The Deputy Custodian acting upon this, report cancelled the petitioners ' allotment in village, Dhakala, on the 1st July, 1952.
This point was raised before the Deputy Custodian General also but he held that section 12 of the Central.
Act did not require notice of cancellation to be issued to the petitioners and in any case the order in question was not without jurisdiction, as there had been substantial compliance with the provisions of rule 14.
It was contended, however, that the order of cancellation was made by the Deputy Custodian and that order was bad as he did not give the petitioners any notice before passing the order.
The Assistant Custodian who was acting under the orders of the Deputy Custodian had already heard ' the petitioners and recorded their statements, and there was no point in hearing the petitioners again when they had already been heard.
The Deputy Custodian has filed an affidavit to the effect that a notice was given to the petitioners to explain on the 9th May, ' 1952, as to why their allotment should not be cancelled, that they appeared on the 9th May, 1952, that their statements were recorded and that their allotments were cancelled on the 1st July, 1952.
We hold, therefore, that there is no merit in the contention that the order of the Deputy Custodian was without jurisdiction as it was passed in the absence of the petitioners and without hearing them.
Even if the order of cancellation was passed during ' the 585 operation of a stay order, the order of cancellation cannot be challenged on that ground.
The next contention urged is that the order of cancellation is opposed to the order of the Ministry of Rehabilitation, dated the 14th May, 1953, whereby the authorities were prohibited from cancelling allotments if the orders in respect of them had not been implemented by the 22nd July, 1952.
We think this contention is also devoid of merit.
It appears that the question of amendment of sub rule (6) of rule 14 of the Central Rules was the subject of correspondence between the Central Government and the East Punjab Government.
Reference is made in the letter of the 14th May, 1953, to a notification issued by the Central Government on the 22nd July, 1952, according to which orders cancelling allotments passed after a specified date were to be implemented only if they fall under the category of undeserved and excessive allotments.
It is stated that the object of this notification was to stablize quasi permanent allotments, but upon a representation by the State Government the provision restricting the implementation of orders passed before the a specified date was relaxed and the State Government was given powers to implement their orders by the 22nd July, 1952.
The Central Government after further consideration decided that all orders passed before the 22nd July, 1952, but not implemented until the 6th May, 1953, shall be kept it abeyance except in the following cases: (a) Undeserved allotment, (b) Excessive allotment, (c). . . . .
It was further decided that no other order hereafter be implemented until a decision to the contrary is issued by the Central Government.
The letter added that the Ministry of Law was being consulted with a view to making the necessary amendments in the rules.
In pursuance of this, decision the East Punjab Government issued instructions to the Deputy Commissioners.
There was some dispute about the meaning of the wor "implementation" but before A further 586 reference was made to the Central Government, the Punjab Government decided that among allottees of land the status quo should be maintained and that if as a result of an order of cancellation passed before the 22nd July, 1952, the possession of an allottee had not been given over by the 6th May, to the new allottee, it shall remain with the original allottee.
This correspondence merely shows that the Central Government enunciated a certain policy on the subject of amending sub rule (6) of rule 14, pending the advice of the Law Ministry, but apparently the policy was not given effect to and no rule was framed in pursuance of the decision.
It is clear, therefore, that the Central Government .merely issued interim instructions pending the amendment of the rule but no rule was framed to give effect to those instructions which in consequence did not acquire any statutory force.
Mere stay of implementation of the orders contained in the statement of policy did not wipe out the effect of the cancellation.
Sub rule (6) to rule 14 was subsequently added but not as it was intended to be with the result that the old orders of cancellation stood such as orders based on grounds other than underserved or excessive allotments.
Once the order of cancellation was passed by the Deputy Custodian, the petitioners lost their right to possession and even if the letter of the 14th May, 1953, is treated as a direction by the Central Government under section 54, it cannot have the effect of restoring what had been lost.
We hold, therefore, that the petitioners have not made out a case for breach of any fundamental right.
Both the orders passed by respondent No. I are perfectly valid and within jurisdiction.
We accordingly ' dismiss the petition with costs to the first respondent.
Petition dismissed.
Agent for the petitioners: Harbans Singh.
Agent for respondent No. 1: G. H. Rajadhyaksha.

dataset_name: IN-Abs

summary:
Held, that the Deputy Custodian of Evacuee Property has jurisdiction to cancel the allotment of land both under the East Punjab Evacuees ' (Administration of Property) Act, XIV of 1947 as well as under the Administration of Evacuee Property (Act XXXI of 1950), sections 2(a) 12(1) and 56(2), the latter Act replacing the former Act.
That no notice was provided for cancellation of an allotment under the rules framed under section 56.
That the petitioners allottees in the present case were given notice and had full opportunity to put forward their case before their allotments were cancelled.