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Judgment
Veeraswami, C.J.—Respondents 4 and 5 in the Court below are the Appellants. The first Respondent had obtained a money decree against
the first Respondent in the Court below, one S. S. Fakir Mohamed, in Original Suit No. 322 of 1963 in the Court of the Subordinate Judge of
Coimbatore. The decree was made on October 8, 1964. Fakir Mohamed, the judgment-debtor, a film producer, ran into debts. He was also
carrying on business as a beedi merchant. On February 19, 1968, Fakir Mohamed and his son Habibur Rahman, the third Respondent, on the one
hand and first Appellant Abdul Jabbar on the other, entered into a partnership under the name and style of Majeeth Mark S. P. S. Beedi Factory,
Coimbatore. Majeeth Mark S. P. S. Beedi Factory by partner Abdul Jabbar the first Appellant, figures as the second Appellant. Fakir Mohamed
died on January 18, 1972. His widow, the second Respondent instituted Original Suit No. 48 of 1972 for dissolution of the firm and taking its
account. Abdul Jabbar was a party-Defendant in that suit. It ended in a consent decree which declared that the partnership stood dissolved as on
January 18, 1972, the day Fakir Mohamed died. The accounts of the firm were filed in Court which were said to have established that no amount
whatever was due to the late Fakir Mohamed from out of the firm but he was only indebted with his son to the tune of over Rs. 3 lakhs to Abdul
Jabbar. The first Respondent in the appeal took out execution of the decree. He impleaded Fakir Mohamed (died), as the first Respondent, his
widow and his son as Respondents 2 and 3, Abdul Jabbar as the 4th Respondent, and Majeeth Mark S.P.S. Beedi Factory by partner Abdul
Jabbar, as the 5th Respondent. The petition for execution under Order XXI Rule 11(2) of the Code of Civil Procedure, was to implead
Respondents 2 to 5 in the Court below as legal representatives of the first Respondent, Fakir Mohamed and for appointment of a Receiver under
Order XXI Rule 49(2) of the Code to sell and collect the amounts earned by Fakir Mohamed in the partnership business and to pay the same to
the decree-holder in discharging of the decree-debt. The Court below granted both the prayers. It was of the view that although Fakir Mohamed
was the sole proprietor of Majeeth Mark S.P.S. Beedi it became a firm of partnership as from February 19, 1968, and that in view of the recital in
the Partnership Deed, the partnership could not be dissolved by the parties unless all the liabilities mentioned in the schedule were discharged by
Abdul Jabbar. The Court below thus thought that notwithstanding the death of Fakir Mohamed and the consent decree mentioned by us, the
partnership continued since Abdul Jabbar had not discharged all the debts. This was the basis for the order the Court below made under Order
XXI of Rule 49(2), since, according to the Court below Abdul Jabbar was in possession of Majeeth Mark S. P. S. Beedi Factory after the death
of Fakir Mohamed, he was an intermeddler with, and in possession of the beedi business as a partner. The Court said that the 4th Respondent was
in possession of part of the estate of the deceased. So, it held Abdul Jabbar was a legal representative of the deceased Fakir Mohamed.
The propriety of the order of the Court below making the Appellants as the legal representatives of the deceased in the execution of the decree
against them, and appointment of a receiver and other relief under Order XXI Rule 49(2) made by the Court below is questioned before us.
The contention for the Appellants was that in no view of the matter c an they be regard ;d as the legal representatives of the deceased Fakir
Mohamed. We are of opinion that the Appellants are right in their contention. A legal representative as defined by Section 2(11) of the Code of
CPC is a person who in law represents the estate of a deceased person, and includes any person who interme idles with the estate of the
deceased, and where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so
suing or sued. It is clear that the Appellants do not represent the deceased. They are not his heirs. The first Appellant is a stranger, and the second
Appellant is the business which was once the property of the deceased and later on the firm of dissolved partnership. They are also not sued in a
representative character. Nor has any estate of the deceased devolve 1 on them. The only ground the Court below relied on to hold them to be
legal representatives of Fakir Mohamed was that the first Appellant was in possession of Majeeth Mark S.P.S. Beedi Factory and so was in
possession of a part of the estate of the deceased; thus the first Appellant intermeddled as a partner in the beedi business of the deceased as on
December 19, 1968, four years after the decree was made in favour of the decree-holder. The first Appellant''s stand is that the partnership stood
dissolved on January 18. 1972, the day Fakir Mohamed died, the debt due to the decree holder was lot one shown in the schedule of the
partnership of the firm, the firm was called upon to discharge through the first Appellant, and the firm had nothing to do with the decree debt. The
Appellants also contend that the first Appellant was in possession of the beedi business Majeeth Mark S.P.S. Beedi Factory after the death of
Fakir Mohamed not as his representative but in his own right and in accordance with the terms of the compromise decree in Original Suit No. 48
of 1972. We think, the stand of the Appellant is unassailable. If the first Appellant is in possession of the second Appellant business, it is not as an
inter-meddler of the estate of the deceased Fakir Mohamed, but in his own right, and adverse to the estate of the late Fakir Mohamed. Unless the
first Appellant''s possession of the business could be said to be in a representative capacity that he represented the estate of the deceased by
interposing in its administration and getting into possession of it, it cannot be said that he was an inter-meddler within the meaning of Section 2(11)
of the Code. It may be that the expression legal representative includes any person who intermeddles with the estate of a deceased partner. But, as
held in Chockalingam Chettiar v. Karuppan Chettiar (1941) M.L.J. 82 the intermeddling must involve the assumption of a representative capacity
in relation to an estate, and not in assertion of a claim of right adversely to the estate of the deceased. The possession of the second Appellant
beedi business in the hands of the first Appellant is not, therefore, as an intermeddler so as to make the first Appellant and also the second
Appellant as legal representative of the deceased. The first Appellant''s possession is traceable to the formation of the firm of partnership between
the deceased and his son on the one part, and the first Appellant on the other and after the death of Fakir Mohamed and dissolution of the
partnership to the terms of the consent decree in Original Suit No. 48 of 1972 We hold, therefore, that the Appellants cannot be regrded as the.
legal representatives of the deceased Fakir Mohamed.
The order of the Court below under Order XXI Rule 49(2) is also defective. Rule 49, as we understand its language applies only to an existing
partnership, and not a dissolved one. Sub-rule (2) of the rule speaks of an application of the holder of a decree against a partner, and the Court
making an order charging the interest of such partner in the partnership property and profits with payment of the amount due under the decree.
That can have reference only to an existing partnership. It is even more clear by reference to Sub-rule (3) which gives liberty to the other partner or
partners to redeem the interest charged or in the case of a sale being directed, to purchase the same. Where at the time execution is sought the firm
is dissolved and no longer in existence, the provisions in the Partnership Act for winding up its business in the way mentioned therein will apply.
Order XXI Rule 49(2) will have no application. The Court below, in our opinion, is not right in its view that the rule apply also to a dissolved firm.
In some part of the judgment of the Court below it was stated that the partnership, notwithstanding the death of Fakir Mohamed, continued to
exist. For taking that view it relied on paragraph 4 of exhibit B-1 which was the deed of partnership, which said that the partnership shall not be
dissolved by parties unless and until ill the liabilities mentioned in the schedule thereto were discharged by party of the second part, namely, the first
Appellant, and that if the partnership was put an end to by the parties of the first part, that is to say, Fakir Mohamed and his son Habibur Rahiman,
the party of the second part, the Appellant, should continue the business till all the amounts due to him were fully realised. We do not agree with
the Court below that this statement of the partnership deed amounted to the position that eventhough Fakir Mohamed died, still the firm of
partnership will continue. This clause in the partnership deed was inserted for the security of the first Appellant who had advanced moneys to the
firm. It does not appear also that the decree debt in question was in the recital of the partnership. In one place in the order of the Court below it
was observed that the consent decree in Original Suit No. 48 of 1972 was collusive. That decree declared that the partnership stood dissolved as
on the date of death of Fakir Mohamed. There is no basis whatever in the record to support the observation of the Court below that the consent
decree was collusive. It is not in dispute that there were still large outstanding due from the erstwhile first Appellant. Since we are of the view that
the firm stood dissolved ,the order made by the Court below under Order XXI Rule 49(2) cannot be sustained. N.S. Ramaswami J., in
Dhanalakshi Subbiah v. Venkatathiru Muthuraja 88 L.W. 354 opined that Order XXI rules 49 applied to an existing firm, and not a dissolved or
erstwhile one. We concur with him.
The appeal is, therefore, allowed with costs.