Jharkhand High Court
Rahim Mian vs Bibi Jaibunisha on 24 October, 2013
Equivalent citations: AIR 2014 JHARKHAND 17, (2014) 136 ALLINDCAS 277 (JHA), (2014) 1 JCR 430 (JHA), (2013) 132 ALLINDCAS 909 (JHA)
Author: Prashant Kumar
Bench: Prashant Kumar
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WRIT PETITION (C).No. 6081 of 2012
(In the matter of an application under Article 227 of the Constitution of India.)
1. Rahim Mian
2. Azima Khatoon
3. Ramjan Khatoon
4. Runua Khatoon
5. Sakina Bibi
6. Md. Usman
7. Nazmul Hoda
8. Jumrati Mian. . . . . Petitioners
Versus
1. Bibi Jaibunisha
2. Abdul Gafoor
3. Ishtiyak Ansari
4. Taslima Khatoon
5. Julekha Khatoon
6. Jahira Khatoon
7. Abdul Shakur
8. Abdul Kadir
9. Md. Yunush
10. Md. Hussain. . . . . . .Respondents.
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For the Petitioners : M/s Ayush Aditya,Shashank Shekhar.
For the Respondents : Mr. Shamim Akhtar
Mr. Alok Lal
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Reserved on : 24.09.2013 Pronounced on : 24/10/2013
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PRESENT
THE HON'BLE MR. JUSTICE PRASHANT KUMAR
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Prashant Kumar,J. This writ application has been filed for quashing the
order dated 22.09.2012 passed by Sub Judge-II, Giridih in
Partition Suit No. 15 of 1988, whereby and whereunder he rejected
the objection raised by the petitioners with regard to legality of
preliminary decree at the stage of preparation of final decree.
2. It appears that the plaintiffs-respondents had filed
aforesaid suit claiming share in the property, details of which given
in the schedule of the plaint. It further appears that the petitioners,
who are defendants in the aforesaid suit, had filed their written
statement, raising objection that the ancestor of plaintiffs-
respondents had already soled 1/4th interest in the joint family
property and therefore the plaintiffs-respondents are not entitled to
get any share in the joint family property. It then appears that after
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filing of written statement, no pairvi made by the
defendants/petitioners and they did not cross examine the plaintiffs
and his witness nor they adduced any evidence in support of their
case as stated in the written statement. It appears that the court
below decreed the suit vide judgment dated 30.09.1993 and
prepared a preliminary decree.
3. It is relevant to mention that defendants-petitioners had
not filed any appeal against the preliminary decree. Thus, the
preliminary decree passed by the learned court below has become
final. It then appears that an application filed by the plaintiffs-
respondents on 25.08.2010 for preparation of final decree. It
appears that during the proceeding for preparation of final decree,
again defendants-petitioners had not appeared, hence, the learned
Sub Judge passed an ex-parte final decree on 09.05.2011.
Thereafter defendants-petitioners filed an application on
22.02.2011under Order IX Rule 13 of the CPC, but the same has been rejected by the learned Sub Judge on 22.12.2011. Thereafter defendants-petitioners filed a Miscellaneous Appeal in the court of Principal District Judge, Giridih vide Miscellaneous Appeal No. 02 of 2012 which was allowed vide judgment dated 30.04.2012 and Principal District Judge, Giridih directed the court below to give adequate opportunity to the defendants-appellants and decide the matter afresh and prepare final decree in accordance with law.
4. Thereafter defendants-petitioners filed objection on 30.07.2012, wherein they stated that the preliminary decree was passed against a dead person, therefore, the same is nullity. It is stated that the ancestor of plaintiffs-respondents , namely Kalia Mian, had sold two Annas of his share in favour of petitioner no. 8. It is further stated that Kalia Mian sold his undivided share in favour of his daughter Jaibunisha by registered sale deed. It is further alleged that Kaila Mian had soled 16 Dismals of land in 3 favour of Babu Jan Mian in the year 1961. It is then stated that Kalia Mian sold lands in favour of Naurla Mian by registered sale deed in the year 1940. Thus, Kalia Mian had already soled his 1/4th interest in the joint family property, therefore his descendants i.e. plaintiffs-respondents are not entitled to any share. Accordingly it is stated that the preliminary decree passed by the learned court below is against the law hence preliminary decree be revised.
5. It appears that the aforesaid objection raised by the defendants/petitioners has been rejected by the impugned order dated 22.09.2012 and the court below has directed the plaintiffs- respondents to deposit fee for appointment of survey knowing advocate for preparation of final decree.
6. Sri Ayush Aditya, learned counsel for the petitioners submits that defendant no. 4, namely, Nashbini Khatun had died on 20.09.1992, but her legal heirs have not been substituted prior to passing of preliminary decree dated 30.09.1993. Accordingly, he submits that the preliminary decree passed in the instant case is nullity. Learned counsel submits that if the decree is a nullity, then the same cannot be executed. In support of aforesaid submission, learned counsel relied upon the judgment of Hon'ble Supreme Court in Vasudeo Dhanjibhai Modi Vs. Raja Bhai Abdul Rehman and others reported in 2007(1)SC670 and in Kisun @ Ram Kisun ( Dead) Vs. Bihari ( D) reported in AIR 2005 SC 3799. Learned counsel for the petitioners further submits that even if no appeal has been filed against the preliminary decree, the said preliminary decree can be revised at the time of preparation of final decree ( if the said preliminary decree is illegal). It is submitted that the share allocated in favour of plaintiffs-respondents is against the Muslim Law. It is further submitted that the ancestor of plaintiffs-respondents had already sold his share to different persons. Thus, he had no share in the ancestral property. 4 Accordingly, it is submitted that the preliminary decree passed in favour of plaintiffs-respondents is against the law, therefore the same can be revised at the time of preparation of final decree. In support of aforesaid contention learned counsel for the petitioner relied upon the judgment of Hon'ble Supreme Court in Prema vs. Nanje Gowda and others reported in 2011(6) SCC 462. Accordingly, learned counsel for the petitioners submits that the impugned order cannot be sustained.
7. On the other hand, Sri S. Akhtar, learned counsel appearing for the plaintiffs-respondents, submits that in the instant case defendant no. 4 Nashbini Khatun never appeared in the court below nor she contested the suit by filing written statement. Thus, on her death, it is not necessary to substitute her legal heirs in view of provisions contained under Order XXII Rule 4(4) of the CPC. Accordingly, he submits that the preliminary decree passed in this case is not nullity. He further submits that admittedly no appeal filed by the defendants/petitioners against the preliminary decree passed in aforesaid partition suit. Thus as per section 97 of the CPC, the correctness of such preliminary decree cannot be challenged. In support of aforesaid submission, Sri S. Akhtar relied upon the judgment of Hon'ble Supreme Court in Kaushalaya Devis and Ors Vs. Baijnath Sayal and others reported in AIR 1961 SC 790 and in Venkatrao Anant Deo Joshi and others Vs. Malatibai and others reported in AIR 2003 SC
267. Accordingly it is submitted that the present writ application has no merit, therefore the same is liable to be dismissed.
8. Having heard the submission of the parties, in the instant case, the following two points arose for determination
(i) Whether death of defendant no. 4, namely, Nashbini Khatun on 20.09.1992 prior to passing of preliminary decree render the preliminary decree a nullity as her legal heirs not 5 substituted, therefore, no final decree can be prepared on the basis of same?
(ii) Whether in the absence of any appeal, against the preliminary decree, the correctness of the preliminary decree can be challenged at the time of preparation of final decree on the ground of certain illegality?
9. Re:- Question No. (i):-
It is true that Hon'ble Supreme Court in Vasudeo Dhanjibhai Modi Vs. Raja Bhai Abdul Rehman case and in Kisun vs. Bihari ( Supra) has held that if a decree is passed against a dead person, then the decree is a nullity and it cannot be executed. But in the instant case from perusal of the judgment of the learned court below in Partition Suit No. 15 of 1988 ( Photo copy of certified copy of judgment produced by learned counsel for the petitioner for my perusal) shows that defendant no. 4, namely, Nashbini Khatun had not appeared and contested the suit by filing written statement.
This fact also stated by court below in the impugned order. Order XXII Rule 4(4) of the CPC reads as under:-
4. Procedure in case of death of one of several defendants or of sole defendant (1)xxxxxxxx (2)xxxxxxxx (3)xxxxxxx (4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.
Thus, if a defendant had not filed a written statement and if filed the written statement, did not appear and contest the suit then on his death, it is not necessary to substitute his legal 6 representatives and it is opon for the Court to pronounce judgment against him notwithstanding his death. The aforesaid provision further provides that the said judgment shall have the same force and effect as if it has been pronounced before the death took place.
10. The Hon'ble Rajsthan High Court in Bhagirath Mal Vs. Bhagwan Dutt reported in AIR 1996 Rajsthan 27 held as under:-
"The deceased-defendant not having made appearance and the appearance having been made on his behalf without any authority from him on the basis of a memorandum of appearance and the counsel on the basis of said memorandum having not been accepted as a duly appointed Advocate and because of that fact the written statement filed by the applicant was not taken as the written statement of the deceased shows that, although no specific order in this regard was passed, proceedings against him were ex parte, and in these circumstances, it cannot be said that it was within the knowledge of either the plaintiff non - applicant or the defendant-applicant that deceased had died during the pendency of the suit and in these circumstances this fact was not brought to the notice of the learned trial Court who passed the impugned decree. Even otherwise, in view of sub-rule (4) of Rule 4 of Order 22 of the Code of Civil Procedure it was not obligatory, in the circumstances, for the plaintiff to have brought on record the legal representatives of the deceased during the pendency of the suit and as such the appeal having been filed by the applicant impleading the deceased as respondent no. 1 and the report having been received that he had died, there was no question of impleading his L.Rs. as he had died before the suit was decided and not during the pendency of the appeal. In view of these facts, I am of the view that it cannot be said that the appeal can be said to have abated or that the decree passed by the learned trial court was nullity as no legal representative had been brought on record."7
As noticed above, in the instant case, defendant no. 4 has not contested the suit by filing written statement. Under the said circumstances, it is not necessary to substitute her legal heirs, therefore, the preliminary decree passed even after her death, will not be declared as a nullity. Thus, the aforesaid submission, raised by learned counsel for the petitioner is liable to be rejected.
11. Apart from the above reasoning, the first contention of petitioners is liable to be rejected on another ground. It is worth mentioning that defendant no. 4, namely, Nashbini Khatun was the widow of Chutta Mian. It appears that defendant no. 5, Rahim Mian, defendant no. 6, Munija Khatun, defendant no. 7, Azima Khatun and defendant no. 8, Ramu Jan Khatun are the sons and daughters of Chutta Mian. Thus, legal heirs of Nashbini Khatun are already on the record. The judgment passed by the learned Sub Judge in Partition Suit No. 15 of 1988 shows that defendant no. 5 and 8 contested the suit by filing written statement. Under the said circumstances, I find that some of the legal heirs, if not all, of defendant no. 4 are on the record, who had represented the entire estate of defendant no. 4. In this respect I do no better than to quote paragraph no. 5 of the judgment of Hon'ble Supreme Court in Custodian of Branches of Banco National Ultramarino Vs. Nalini Bai Naique reported in 1989 Supp ( 2) SCC 275 is as under :-
"In Daya Ram V. Shyam Sundari, this Court recognized the principle of representation of the estate by some heirs, where the defendant died during the pendency of the suit to enforce claim against him and all the heirs are not brought on record within time. This Court held that if after bona fide inquiry, some, but not all the heirs, of a deceased defendant, are brought on record the heirs so brought on record represent the entire estate of the deceased and the decision of the court in the absence of fraud or collusion binds even those who are not brought on record as well as those who are impleaded as legal representatives of the deceased defendant. In N.K. Mohd. Sulaiman V. 8 N.C. Mohd. Ismail, this Court rejected the contention that in a suit to enforce a mortgage instituted after the death of a Muslim, if all the heirs of the deceased were not impleaded in the suit and a decree was obtained, and in execution the property was sold, the auction purchaser could have title only to the extent of the interest of the heirs who were impleaded, and he could have no title to the interest of those heirs who had not been impleaded to the suit. The court held, that those who were impleaded as party to the suit in place of the deceased defendant represented the entire estate as they had share in the property and since they had been brought on record the decree was binding on the entire estate."
Consequently, since one son and three daughters of defendant no. 4 are on the record, therefore, I find that due to the death of defendant no. 4, the partition suit had not abated and consequently, the preliminary decree passed in the partition suit after the death of defendant no. 4 is not nullity. Accordingly, the first question is decided against the defendants/petitioners.
12. Re: -Question No. (ii)-
It is submitted by learned counsel for the petitioners that the preliminary decree is against the law, because the ancestor of plaintiffs-respondents had already sold his share to different persons, thus, he has no share in the joint family property. It is submitted that in view of judgment of Hon'ble Supreme Court in Prema Vs. Nanje Godwa and others (supra), even if a preliminary decree is confirmed in appeal, before preparation of final decree, it can be revised. In the facts and circumstances of the case, aforesaid contention of learned counsel appears to be misconceived.
13. It is true that Hon'ble Supreme Court in the aforesaid judgment, had held that the partition suit attains finality after passing of final decree. There Lordships further held that if during the interregnum, if the rights and share of the parties altered by 9 virtue of any statutory amendments or otherwise, the court must give effect to the same and modify the preliminary decree accordingly. In the instant case, defendants/petitioners had not brought anything on record to show that any event took place during interregnum, which require alteration in the share of parties. In the instant case, it is admitted position that petitioners took the plea in their written statement itself that Kalia Mian had sold properties to different persons at different occasions, and therefore he has no interest in the joint family property. It appears that the petitioners had not adduced any evidence in support of their contention, nor they cross examined plaintiffs-respondents . Under the said circumstances, if they had any grievance against the preliminary decree, they ought to have filed appeal against the same.
14. In Vasudev Dhanjibhai case ( supra) the Hon'ble Supreme Court has held that "the court executing a decree cannot go behind the decree between the parties or their representatives and it must take the decree according to its tenure and cannot entertain any objection that the decree was incorrect in law or in facts, until, it is set aside by an appropriate proceeding in appeal or revision". The Hon'ble Supreme Court further held that even if a decree is erroneous, is still binding between the parties.
15. In Kaushalaya Devi case ( supra), the Hon'ble Supreme Court has held that " Object of enacting section 97 was to make it clear that any party feeling aggrieved by a preliminary decree must appeal against that decree, if he failed to appeal against such a decree, the correctness of such decree cannot be challenged by way of appeal against the final decree, it means that preliminary decree would be taken to have been correctly passed."
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16. In Venkatrao Anantdeo Joshi and others V. Sau. Malatibai and others case ( supra) at paragraph no. 9, the Hon'ble Supreme Court has held as follows:-
"Further, in a suit for partition where preliminary decree is passed:
at the time of passing of the final decree it was not open to the respondent to raise the contention that he was a tenant of the suit premises. Section 97 of the CPC specifically provides that where any party aggrieved by the preliminary decree does not appeal from the said decree, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree.[Ref. Modi Chand and OthersV. Dy. Director, Consolidation and Others{1995)5SCC631]."
17. In the instant case, as noticed above, the defendants/petitioners have not filed any appeal against the preliminary decree. Thus, at the stage of preparation of final decree they are not entitled to raise any objection against the correctness of the preliminary decree. Thus, the second contention raised by the learned counsel for the petitioners is hereby rejected.
18. In view of the discussion made above, I find no merit in this writ application. Accordingly, the same is dismissed. However, in the facts and circumstances, the parties shall bear their own costs.
(Prashant Kumar,J.) High Court of Jharkhand,Ranchi.
Dated 24/10/2013 Sharda/N.A. F. R.