DAYA RAM AND OTHERS versus SHYAM SUNDARI

Citation: [1965] 1 S.C.R. 231 · Decided: 08-09-1964 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Dismissed

Cited by 3 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

23"1 
A 
DAYA RAM AND omERS 
v. 
SHYAM SUNDARI 
September 8, 1964 
B (P. B. GAJENDRAGADKAR, c. J., J. c. SHAH AND N. RAJAGOPALA. 
AYYANGAR JJ.) 
P~rtition--Suit for--Equities between co~olvners. 
Cork of Civil Procedure (Act V of 1908), O.XXJI, r. 4(1) and (3)-
C 
Scope of. 
· 
0 
E 
JI 
G 
H 
Praciice-Legal representatives-Duty to bring on record 
to 
make, 
·record complete. 
Har Charan, respondent's father, and his two brothers, owned certain 
land.'l. 
Afrer the death of Har Charan his brothers sold the lands to the· 
father of the appellants. The respondent filed a suit claiming a decree fpr 
possession of a third share in the property alleging that Har Charan and 
his brothers were separated in interest. After notice of the claim of the 
res_p0ndent. the purchaser made some constructions in pursuance of an 
agreement with the Improvement Trust. The respondent's claim was de-
creed but, in execution of the decree it was ordered that she should file a 
suit for partition .in which her rights would be worked out. In the suit for 
partition, tbe trial Court held that in equity she was only entitled to a 
decree for money representing the value of her third share, on the ground 
that the appellants' father had constructed buildings on the land. The 
High Court allowed her appeal holding that as the buildings were com, 
pleted with the knowledge of the respondent's claim, the appellants could 
not plead any equity in ·their favour. 
The decree was challenged in appeal 
to the Supreme Court. While the appeal was pending the respondent died 
and only some of her legal representatives were brought on record. 
It 
appeared however that there was no want of diligence or bona fides in the 
appellants. in making an enquiry as to who the legal representatives were. 
HELD : (i) The appellants' father was in the position of a trespasser 
with notice of the claim of the true owner and he 
·- •Id not claim any 
•pecial equity based upon his having bona fide put common property to 
use and dfocted improvements on it. 
[237B-D]. 
(ii) Under 0. XXII, r. 4(1) and (3) of the Civil Procedure Code, 1908, 
where a p1.1intiff or an appellant after diligent and bona fide enquiry ascer-
tained who the legal representatives of a deceased defendant or respondent 
were, and brought them on record within the time limited by law, there 
would be oo abatement of the suit or appeal, even though some other legal 
representativ~s remained unknown to him and were not impleaded. if those 
legal representatives who were impleaded sufficiently represented the estate 
and a decision obtained against them bound the entire estate. If however 
it is brought to the notice of the appellant during the pendency of the appeal 
that.some of the legal representatives had not been 1mpleaded, it would be 
the ·duty of the appellant who was thus made aware of his default, to 
bring thooe others on record. [2400-F; 242B]. 
Case lav: reviewed. 
:232 
SUPREME COURT REPORTS 
[1965] I S.C.R. 
CIVIi. APPELLATE JURJSPICTION : Civil Appeal No. 360 of 
A 
1962. 
Appeal from the judgment and decree dated February 26, 
1957 of the Allahabad High Court in F. A. No. 487 of 1945 .• 
S. K. Kapur, Advocate-General, Punjab, S. Murty and K. K. 
Jain, for the appellants. 
G. N. Dikshit, for the respondent. 
The Judgment of the Court was delivered by 
B 
Ayyangar J. 
This is an appeal by a certificate granted by the 
High Court of Allahabad under Art. 133 (I) (b) of the Constitution . C 
and represents, and that is our hope, the Inst stage of a litigation 
whicb has lasted over forty years between the deceased respon-
~lent-Shyam Sundari-and Mata Din, the father of the appellants. 
The following facts are necessary to be stated in order to 
.appreciate the very short point that arises for consideration iri this o 
app~al. The father of Shyam Sundari-the deceased respondent 
was one Babu Har Charan Lal. He was the owner along with his 
two brothers-Kanhaiya Lal and Sheo Narain, of plots 599 an•J 
600 situated in Sisamau in Kanpur on which there existed certain 
petty constructions. The three brothers were separated in interest 
and were each entitled to a third share. Babu Har Charan Lal 
E 
died in December, 1915 leaving behind him surviving his widow 
-Tulsa Kunwar and an only daughter--Shyam Sundari .. Tulsa 
Kunwar died on June 6, 1919 but even before her death Kanhaiya 
Lal and Sheo Narain, the two brothers of her husband claiming a 
full interest in those plot~. sold them to Lala 

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