The estate of a muslim dying intestate devolves under the Islamic law upon his heirs at the moment of his death i.e. the estate vests immediately in each heir in proportion to the shares ordained by the personal law and the interest of each heir is separate and district. Each heir is under the personal 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.
A creditor of a muslim dying intestate may sue all the heirs of the deceased, and where the estate of the deceased has not been distributed between the heirs, he may execute the decree against the property as a whole without regard to the extent of the liability of the heirs inter se. The- creditor is however not bound to sue all the heirs: the creditor may sue some only of the heirs and obtain a decree against those heirs, and liability for satisfaction of the decree may be enforced against individual heirs in the property held by them proportionate to their share in the estate.
Where one of heirs die after institution of the suit
It is also settled that where the defendant in an action dies after institution of the suit, the creditor after diligent and bona fide enquiry impleads some but not all the heirs as legal representatives, the heirs so impleaded represent the estate of the deceased and a decree obtained against them binds not only those heirs who are impleaded in the action but the entire estate including the interest of those not brought on the record.
In Dava Ram and others v. Shyam Sundari & others[1], supreme court observed,
“The almost universal consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and that a decision obtained with them on record will bind not merely those impleaded but the entire estate -including those not brought on record.”
Principle of the representation of the estate
The Court has therefore recognised the principle of representation of the estate by some heirs where the defendant dies during the pendency of a suit to enforce a claim against him, and not all the heirs are brought on the record. If after bona fide enquiry, some but not all the heirs of a deceased defendant are ‘brought all the record, the heirs so brought on the record represent the entire state of the deceased, and the decision of the Court in the absence of fraud or collusion binds those who are not brought on the record as well as those who are impleaded nomine.
Daya Ram’s case, it is true, did not relate to the estate of a deceased Muslim, but the rule enunciated is of the domain of procedural law and applies to all communities irrespective of the religious pursuasion or personal law.
Reference
N.K. Mohammad Sulaiman vs N. C. Mohammad Ismail And Others: 1966 AIR 792, 1966 SCR (1) 937
[1] [1965] 1 S.C.R. 231 .lm15