Pynda Andallamma vs Chella Peda Jangamayya and Another

Horwill, J.—One Veeraraju brought S.C.S. Nos. 57 and 49 of 1941 in the Court of the District Munsiff of Cocanada for rent. During the

pendency of the suits he died, and the petitioner then put in applications under Order 22, Rule 3, and Section 151, CPC praying the Court to add

her as the legal representative of the deceased plaintiff on the ground that she was the real owner of the property and that Veeraraju was her

benamidar. The Court, following Doraiswami Tevar v. Chidambaram Chettiar (1929) 58 M.L.J. 57 dismissed these applications, with the result

that the suits abated.

Mr. Narasaraju for the petitioner does not deny that Doraiswami Tevar v. Chid"" dambaram Chettiar 1 on which the lower Court relied, does

directly apply; but he contends that it is no longer good law in view of a more recent Full Bench decision in Jaldu Balasubramaniam Chetty Vs. D.

Kothandaramaswami Nayanim Varu and Others, in which it was held that,

Where a decree is held by one person as a benamidar for another, and the holder dies, the true owner can apply for execution, and if his title is

disputed, the question can be decided in those proceedings.

This opinion was arrived at by construing the provisions of Order 21, Rule 16, in which it says,

Where a decree...is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court

which passed it....

So that any person on whom the property in the decree devolves by operation of law is entitled to apply to be allowed to execute the decree in

the place of the decree-holder; and the learned Judges say, in discussing that question,

If A in fact holds a decree as benamidar for B, on A''s death his heirs cannot claim it as their property. That decree is the property of B and death

has removed the nominal holder from the scene. Why should not B in these circumstances ask the Court to execute the decree at his instance on

the ground that by operation of law he has obtained a complete title to it?

Very different considerations, however, arise in an application to be allowed to continue a suit; for under Order 22, Rule 3 upon an application

made to it, the Court "" shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit."" The

expression "" legal representative "" is defined in Section 2(ii) as meaning '''' a person who in law represents the estate of a deceased person.

Although the plaintiff is the person entitled to the rent, he certainly does not represent the estate of his benamidar. This was what Jackson, J., held

in Doraiswami Tevar v. Chidambaram Chettiar 1.

Mr. Narasaraju contends that the reasoning of Abdur Rahman, J., in Subba-nagalu Naidu v. Balanagamayya (1938) 48 L.W. 932 would make

it appear that it was not necessary to construe the words "" legal representative "" as strictly as in Section 2(ii) and that any person interested in the

subject-matter of the suit could be added. That, however, is not what the learned Judge says. He was considering the effect of an application under

Order 22, Rule 3 by a person who was not the legal representative. He held, after examining the actual wording of the application,that it might be

read in two parts, one being a prayer under Order 22, Rule 3 to add the legal representative and the other asking the Court to recognise him as the

legal representative. The learned Judge held that even though the petitioner was not entitled to be brought on record himself as a legal

representative, he was entitled to ask the Court to bring the legal representative on record, and that the application made it incumbent on the Court

to add the legal representative as plaintiff, whoever the legal representative might be.

Mr. Narasaraju suggests that the procedure might be adopted in this case and that the legal representative of the deceased, who is said to be his

father, might be brought on record as the plaintiff, in which case she could subsequently add a prayer to be brought on record herself. As this

matter is coming before me in revision, and as it was never the intention of the petitioner that any person other than herself should be added, I

cannot say that the learned Munsiff was wrong in dismissing the application instead of regarding it as an application under Order 22, Rule 3 for the

adding of the father of the deceased plaintiff. It was the respondent and not the petitioner who said that the father of the deceased was his legal

representative.

The petitions are dismissed.