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

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

Where a creditor institutes a suit for debt recovery or enforcement of mortgage after the death of a Muslim debtor and, after diligent and bona fide inquiry, impleads only those heirs believed to be the sole survivors, the heirs so impleaded sufficiently represent the entire estate. The decree passed is binding on all heirs, including those not impleaded, unless there was fraud, collusion, lack of fair trial, or the absent heir had a special defence not raised in the prior proceedings.

Parties
Appellant: N. K. Mohammad Sulaiman; Respondents: N. C. Mohammad Ismail and others
Jurisdiction
India
Judgment Date
23 September 1965
Procedural Posture
Civil Appeal / Supreme Court Appeal From Judgment and Decree of Andhra Pradesh High Court Dated August 27, 1958, in Appeal Suit No. 113 of 1954
Outcome
Appeal dismissed
Legal Topics
Representation of Estate, Mortgage Enforcement, Decrees Binding Non Impleaded Heirs, Personal Law Relevance
Civil Procedure Representation of Estate Mortgage Enforcement Decrees Binding Non Impleaded Heirs Personal Law Relevance

Case Brief

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Parties

N. K. Mohammad Sulaiman

Appellant

N. C. Mohammad Ismail and others

Respondents

Procedural Posture

Civil Appeal / Supreme Court Appeal From Judgment and Decree of Andhra Pradesh High Court Dated August 27, 1958, in Appeal Suit No. 113 of 1954

Legal Issues

  1. 1 Whether a decree obtained by a creditor against only those heirs known after bona fide inquiry binds the entire estate and heirs not impleaded
  2. 2 Whether personal law of the deceased is relevant to binding effect of decree

Ratio Decidendi

Where a creditor institutes a suit for debt recovery or enforcement of mortgage after the death of a Muslim debtor and, after diligent and bona fide inquiry, impleads only those heirs believed to be the sole survivors, the heirs so impleaded sufficiently represent the entire estate. The decree passed is binding on all heirs, including those not impleaded, unless there was fraud, collusion, lack of fair trial, or the absent heir had a special defence not raised in the prior proceedings.

Court Disposition

Appeal dismissed

Orders

  • The appellant shall pay the court-fee payable on the memo of appeal as if he had not been permitted to appeal in forma pauperis.