N. K. MOHAMMAD SULAIMAN versus N. C. MOHAMMAD ISMAIL AND OTHERS

Citation: [1966] 1 S.C.R. 937 · Decided: 23-09-1965 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Dismissed
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Judgment (excerpt)

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N. K. MOHAMMAD SULAIMAN 
v. 
N. C. MOHAMMAD ISMAIL AND OTHERS 
September 23, 1965 
[K. SUBBA RAO, K. N. WANCHOO, J.C. SHAH, S. M. S!KRI AND 
V. RAMASWAMI, JJ.] 
Legal representatives-Creditor instituting suit for recovery of debt 
against only heirs known .to him after bona-fide inquiry-Whether such 
heirs 1 epresent entire estate and decree in suit binds heirs not impleaded-
l'ersonal law of deceased-Whether relevant. 
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 
sold 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 possesston at the time; and that R had made full and 
bona-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 disn1issed the appellant'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 that when in a suit to enforce a mortgage instituted 
after the death of a muslim debtor, one or more out of tho 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 v.•ho 
were impleaded eo nomine is not a question to be determined on the per-
sonal 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 DJ 
938 
SUPREME COURT REPORTS 
(1966] I S.C.R. 
, (iii) Where certain. persons are impleaded after diligent and bo.oa 
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fi:i' 
enquiry in the genuine bellef ihat th~y arc lhe only persons intercs1ed 
in the estate, the whole estate of the deceased will be duly reproscntcd by 
th.e pers~ns .who are brought on the record or impJeaded, and the decree 
will be binding on the entire e;tatc. [948 G] 
Daya Ram and 01hers v. Shyam Sundari & others [1965] 1 S.C.R. 231, 
followed. 
H the creditor ha.s l'roceedcd after such bona fide enquiry, it would make 
no d1ffc: ence in pnnc1ple betv.·een a case in v.·h1ch a del>tor is sued tor 
recovery of a debt and up0n his death pendente lite there is an order of 
the court rc:;ognising 1hc persons brought on the record as representing 
the cs1a1e, and a case in \vhich in a suit against the heirs of a decc~scd 
deb1or, ·the creditor has taken upon himself '.he 
rc::~:i~onsibility 
to 
bring 
certain per5ons on the record as representing the estate. [948 E] 
This rule vw'ill not apply to cases where there has been fraud or co]. 
Jusion bet\vcen the creditor and the heir imple:.idcd or where there are 
other circumslances 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 Jaw reviewed. 
CrvrL APPELLATE JURISDICTION : Civil 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. Chau
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