Mother India Refrigeration Industries Pvt Ltd.through its Managing Director vs Sharda (dead) though L/R

M. C. Agarwal, J.—By this petition the revisionist challenges an order dt. 31584 passed by the 2nd Additional District Judge, Farrukhabad in Suit No. 149 of 1972 whereby he allowed the respondents Smt. Shakuntala Devi and Smt. Prabha Pachauri to be brought on record as legal representatives of deceasedplaintiff Smt. Sharda Devi.

2.1 have heard the learned counsel for the revisionist. No one appeared on behalf of the respondents.

Smt. Sharda Devi deceased filed the aforesaid suit for possession of a piece of land situate within the town of Farrukhabad and forming part of plot number 3626 and shown by letters BCDCFE in a map attached to the plaint. Her case was that prior to abolition of Zamindari in 1964 she was sirdar of the said plot and after the abolition she became the bhumidhar. The plaintiff Smt. Sharda Devi died during the pendency of the suit and present respondents moved an application for being substituted in her place as her legal representatives their contention was that they are the sisters of the deceased who has leu no other heir. Defendantrevisionist filed an objection to the said application which is paper number 163C on the record of the Court below in which it was stated that they are the legal representatives of the deceased, it was not alleged that the deceased plaintiff had left any other person who could be brought on record as her legal representatives. The Court below allowed the application of the respondents and brought them on record as legal representatives of the deceased.

It is not disputed that the respondents are the real sisters of the deceased. Their allegation that the deceased left no other heir was not challenged. Learned counsel for the revisionist contended that the property in dispute devolved of Smt. Sharda Devi from her deceased husband and succession to the said property was governed by the provisions of the U.P. ZALR Act. According to which on the death of Smt. Sharda Devi the land was to revert to the heirs, of the last made owner i.e. the husband of Smt. Sharda Devi. It is, therefore, contended that the order allowing sisters of the deceasedplaintiff to be brought on record as legal representatives is erroneous. Learned counsel for the revisionist Sri N. Lal did not contend that any other heir of the deceased husband was available for being brought on record.

The word "legal representative" has been defined in S. 2(11) of the CPC to mean "a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased." Subrule (2) of R. 3 of O. XXII provides that where within the time limited by law no application is made under subrule (1), the suit shall abate so far as the Deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from, the estate of the deceased plaintiff." Thus, the person who is to be brought in as a legal representative is one who in law represents estate of the deceased or intermeddles with it. The word estate "has a wider scope than the property in dispute. The law does not say that the person on whom the property in dispute devolves would be treated to be the legal representative of a deceased plaintiff. It is not in dispute that in accordance with the Hindu Succession Act the two respondents were the legal heirs of the deceased. It is not the case of the revisionist that the deceased Sharda Devi left no assets to which the Hindu Succession Act applied. The entire property and rights of a deceased person constitute his estate and the respondents being the legal heirs in terms of Hindu Succession Act could represent the estate of the deceased and be brought on record as her legal representatives. The suit was for possession of a portion of plot number 3626/1 on which the defendant revisionist was alleged to have trespassed. It was not disputed that the deceased plaintiff was and after her death the respondents were in possession of the rest of the said plot. Therefore, they were the persons who intermeddled with the estate of the deceased and for that reason also they could be brought on record as legal representatives of the deceased.

In Ram Kalap v. Banshi Dhar, 1958 ALJ 8 in a suit for cancellation of a gift deed one Ram Kalap was substituted as a legal representative of the deceased plaintiff Ram Samujh. The suit was ultimately decreed. Later the said Ram Kalap filed a suit for possession of the same property in which the defendant challenged the will on the basis of which he was brought on record as legal representative of Ram Samujh in the earlier suit. It was held that the question about the validity of the will was not barred by the principles of res judicata. This Court held that an order passed under Order XXII R.5 of the CPC, involved a summary enquiry as to who should be substituted in place of the deceased in the appeal during the pendency of which he died and, therefore, such a decision would not constitute res judicata.

In N.K.Mohd. Sulaiman Sahib v. N.C. Mohd. Ismail Saheb, 1966 SCC 792, the Hon''ble Supreme Court observed as under:

"(14). Ordinarily the Court does not regard a decree binding upon a person who was not impleaded to nomine (sic) in the action. But to that rule there are certain recognised exceptions. Whereby the personal law governing the absent heir the heir impleaded represents his interest in the estate of the deceased, there is yet another exception which is evolved in the larger interest of administration of justice. If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate. The Court will undoubtedly investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the Court. The Court will also enquire whether there was a real contest in the suit, and may for that purpose ascertain whether there was any special defence which the absent defendant could put forward, but which was not put forward. Where "however" on account of a bona fide error , the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially, in the absence of fraud or collusion or other ground which taint the decree, a decree passed against the persons impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on the , record. This principle applies to all parties irrespective of their religious persuasion."

Thus, in spite of the crate that according to special provisions of the tenancy law the respondents may not legally inherit the property in suit, for purpose of continuing the suit, they could be brought on record to represent the estate of the deceased, it is, however, important to remember that in its objection filed before the Court below it was not specifically stated that legal heirs of the husband of Smt Sharda Devi were the persons on whom the property in suit devolved on the death of the deceased.

Reliance was placed on Raghunath v. D.J., Mirzapur, 1985 AWC 637 in which it was observed that person who intermeddled with the estate of the deceased cannot be placed in preference to a person who is found to be the true legal representative of the property of the deceased. This case is distinguishable because admittedly there was another person on whom the property in suit devolved according to law. In the present case no such person was shown to exist.

For the above reasons, I find no illegality or irregularity in the order passed by the court below. The revision petition is accordingly dismissed. Revision dismissed.