Sri Parikhit Pathak And Anr vs Sri Joy Madhab Baruah And 11 Ors on 19 December, 2019
In Mohammed Hussain (supra), the Apex Court held as under:
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1 - 8 of 8 (0.44 seconds)Suren Prasad Jaiswal @ Suren Jaiswal vs Santibai Jaiswal And Others ... Opp. ... on 3 February, 2012
"It is an admitted position that some of the heirs
and legal representatives of Mohd. Hussain were
already on record in the file of the Second
Appeal. Such being the position, in our view, the
question of abatement of the Second Appeal on
the death of Mohd. Hussain could not arise at
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all as some of his heirs and legal representatives
were admittedly on record. Only the question of
noting the death of Mohd. Hussain could arise
and his name could be deleted from the array of
the respondents in the Second Appeal. That
being the position, even if the judgment was
delivered after the death of Mohd. Hussain
whose entire body of heirs and legal
representatives were not brought on the record,
even then the only requirement under the law
was to take note of the death of Mohd. Hussain
and delete his name from the array of the
respondents in the Second Appeal and the rest
of the heirs and legal representatives who had
not brought on record could be added in the
cause title of the memorandum of appeal.
Therefore, in our view, it would be considered
too technical to set aside the entire judgment of
the High Court on the ground of not bringing the
entire body of heirs and legal representatives of
Mohd. Hussain because some of his heirs and
legal representatives were on record and the left
out heirs and legal representatives were
sufficiently represented by the other heirs on
record. Accordingly, the first question as posed
herein above is decided in favour of the present
respondents."
Sahil vs Authorised Officer And Chief Manager on 8 December, 2011
8. Sri. S. Easwaran, learned counsel appearing for
respondents 1 and 2 on the other hand contended that on
the facts of the case at hand, it is evident that there was
substantial representation of the deceased mortgagor. He
relied on a decision of the Hon'ble Supreme Court in Mohd.
Hussain and others (dead) by LRS V. Gopibai and
W.P.(c) Nos.31258/2010 & 6360/2011 -10-
others (2008) 3 SCC 233), wherein it is held that,
ordinarily the court does not regard a decree binding upon
a person who was not impleaded in the action. But, there
exist some exemptions like, 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 bonafide enquiry
impleaded all the heirs known to him, will ordinarily be held
binding upon all persons interested in the estate.
K.Sahadevan vs K.Allagammal (Decd.) on 23 December, 2010
[a] AIR 2003 SC 2588 [S.Amarjit Singh Kalra v. Pramod Gupta]
[b] 2008 3 SCC 233 [Mohd. Hussain v. Gopibai]
[c] 1989 Supp (2) SCC 275 [Banco National Ultramarino v. Nalini Bai Naique]
[d] SCJ 1971 534 [Mahabir Prasad v. Jage Ram and others]
[e] AIR 1971 SC 1028 [Rani v. Santa Bala]
[f] 1996 (11) CTC 275 [Venugopal, M. v. Marappa]
Vide This Order vs Gopibai And Others on 18 April, 2016
In this regard, it is relevant to note that in the matter of
Mohd. Hussain (Dead) by LRs Vs. Gopibai and others,
2008(3) SCC 233, the question before the Hon'ble Supreme
Court was whether the Second Appeal of respondent Nos. 1
to 4, who were appellants before the High Court had abated
as they failed to make an application to bring legal heirs and
representative of Mohd. Hussain, one of the respondents in
the High Court who had died during the pendency of that
Second Appeal. The Hon'ble Supreme Court taking into
consideration that sons of Mohd. Hussain were already on
record, held as follows:-
M.Kurian vs Dr.Ashok Cherian on 20 June, 2016
In Mohd. Hussain v. Gopibai [2008(2) KLT SN 4
SC], the Supreme Court held that when two legal heirs
of mortgagee not impleaded in the suit for
redemption, other legal heirs are already on party
array and there is no allegation or fraud or collusion, if
there is no allegation or fraud or collusion, the suit is
devoid of any inherent defect. In the instant case, the
petitioners have no case that while they were in
possession of the property, the defendants 1 to 3
colluded with the plaintiff and obtained the decree. In
the absence of such a plea, it can be held that no
prejudice is caused to them because of non-
impleadment. So, at any rate, the non-joinder of the
petitioners in the suit is not fatal to decree or
Execution Petition.
Paras Chand Jain vs Alok Garg on 30 January, 2026
Also, in the case of
Mohd. Hussain (Dead) by LRs (supra) , the Hon'ble Supreme Court has held
that all legal representatives are not necessary parties if the estate of the
deceased is adequately represented by those already on record.
Krishan Dev Syal vs Baba Sain Bhagat Sabha Registered And ... on 8 May, 2012
Counsel for respondent No.1-Decree Holder contended that
many heirs of the alleged original owners of the suit property, namely,
Basakhi Ram and Lajpat Rai were party to the suit and therefore, their
estate was represented by the defendants and the decree under
execution, therefore, is also binding on the objectors who claim
themselves to be some of the heirs of the original owners. Reliance in
ESA No. 8 of 2011 [3]
support of this contention has been placed on two judgments of Hon'ble
Supreme Court i.e. Surayya Begum (Mst) Versus Mohd. Usman and
others 1991(3) Supreme Court Cases 114 and Mohd. Hussain (dead)
by L.Rs. and others V. Gopibai and others 2008(2) RCR(Civil)
Supreme Court 129.
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