LexMOHD. HUSSAIN (DEAD) BY LRS. AND ORS. versus GOPIBAI AND ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
t
[2008] 2 S.C.R. 1218
A
MOHD. HUSSAIN (DEAD) BY LRS. AND ORS.
"""
II.
GOPIBAI AND ORS.
(Civil Appeal No. 912 of 1999)
B
FEBRUARY ,1fil 2008
[A.K. MATHUR AND TARUN CHATTERJEE, JJ.]
Abatement - Of second appeal - Death of one of
respondent - No application for substitution of his heirs and
c LRs made e,ven till signing of judgment - Plea of appellant
'
that second appeal abated in its entirety on death of deceased
respondent - Held: Not tenable as some of heirs and LRs of
deceased respondent were already on record in the file of
second appeal - T.herefore question of abatement of seco_nd
·D appeal on death of the respondent would not arise - The only
requirement under the law was to take note of his death and
delete his name from array of respondents in· second appeal
"f
and add names of rest of heirs and LRs not on record.
Party - Non-joinder of necessary party - Mortgagor
E entering into mortgage with mortgagee father and his two sons
- Mortgagee-father died - Suit for redemption of mortgage
against sons mortgagees - Decreed by trial court - Affirmed
by first appellate court - High Court set aside the concurrent
findings of courts below on the ground of non-joinder of two
F married daughters of deceased mortgagee - Justification of
- Held: Not justified as sons of deceased mortgagee who were
also mortgagees were already representing interest of
deceased mortgagee -
There was no a/legation that two
daughters were not made parties co/lusively or fraudulentfy -
G There was concurrent findings by courts below that one
daughter had died and the other daughter had no interest in
suit premises as she was not residing with father at the time of
~
his death - High Court erred in interfering with the findings in
' '
second appeal.
H
1218
MOHD. HUSSAIN (DEAD) BY LRS. AND ORS. v.
1219
__,
GOPIBAI AND ORS.
On 24.4.1932, one 'H' entered into a mortgage with A
-.-
possession of suit premises with one 'N' and his two sons
Defendant No.1and2 for Rs.300/-. In 1967, appellants who
were heirs of 'H', filed suit against Defendant no.1 and 2
and their sons for redemption of mortgage of suit
premises. At the time of filing of the suit, 'N' was aiready B
dead leaving behind his two sons and two married
,.
d·aughters.
The respondents contested the suit on the ground
that the suit was bad on account of non-joinder of parties
as two married daughters of 'N' were not made parties. c
Responderits also pleaded adverse possession in respect
of suit premises.
Trial Court decreed the suit. First appellate Court
upheld the decision of trial Court. On appeal, High Court D
set aside the concurrent findings of lower courts holding
)'
that the suit was bad on account of non-joinder of parties.
In appeal to this Court, two questions for
consideration were whether the second appeal of the
respondents 1 to 4 had abated as they had failed to make E
an application to bring the legal heirs and representatives
of 'H', who had died during the pendency of the second
. appeal and whether In the absence of the two married
daughters of one of the mortgagees, the suit for
redemption could be dismissed on account of their non-
F
...,
impleadment .
-(
Allowing the appeal, the Court
HELD: 1. The mortgagor 'H' had died on 19.11.1991.
The application for substitution after setting aside G
abatement was filed by the appellants in the second
>
>
appeal to bring on record the heirs and legal
-
representatives of the deceased 'H' on 3.3.1992 after the
judgment was already signed by the Judge. Admittedly
some of the heirs and legal representatives of 'H' were H
1220
SUPREME COURT REPORTS
[2008) 2 $.C.R.
A already on record in the file of the second appeal. Such
~
being the position, the question of abatement of the
second appeal on the death of 'H' would not arise at all as
some of his heirs and legal representatives were on
record. Only the question of noting the death of 'H' could
('
B arise and deletion of his name from the array of
respondents in the second appeal. That being the position,
I·
r
even if the judgment was delivered after the death of 'H'
-r
I
whose entire body of heirs and legal representatives were
,_
'
not brought on record, even then the only requirement
I,
c under the law was to take note of the death of 'H' and delete
his name from the array of respondents in the second
appeal and the rest of the heirs and legal representatives
who were not brExcerpt shown. Read the full judgment & AI analysis in Lexace.