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Dharam Das Vs. Bishun Narain - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2467 of 1965
Judge
Reported inAIR1973All376
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2 and 50; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951; Trusts Act, 1882 - Sections 90
AppellantDharam Das
RespondentBishun Narain
Appellant AdvocateG.P. Bhargava and ;A.N. Bhargava, Advs.
Respondent AdvocateK.N. Saxena, Adv.
DispositionAppeal dismissed
Excerpt:
.....plots be bad become the legal representative of har prasad and was, therefore, personally liable for the payment of debt to the extent he had received the land of the deceased......that estate or who would be intermeddling with that estate. we have, therefore, to see whether har prasad deceased had left behindany estate which is either being represented by defendant no. 2 or with which the defendant no. 2 is intermeddling. har prasad and defendant no. 2 were co-bhumidhars of certain agricultural plots of land vide ext. 1. the plaintiff had alleged in the plaint that the defendant nos. 1, 2 and 3 were the heirs of har prasad. this contention was found to be incorrect by the appellate court below. it was thus found that har prasad died heirless. in these circumstances, his bhumidhari interest in the agricultural plots in question passed by survivorship to the other co-tenure-holders namely defendant no. 2 under section 175 of the u. p. z. a. and l. r. act.in this.....
Judgment:

T.S. Misra, J.

1. This is plaintiff's appeal arising out of a suit filed by him against Gorcy Lal and Vishun Dayal for recovery of a loan of Rs. 375/- said to have been advanced by his father to Har Prasad who had agreed to repay the same with interest at the rate of 2% per month and had executed a pronote in favour of Laxman Lal. It is alleged that Har Prasad paid a sum of Rupees 5/- on 26th May, 1956 towards the said loan and had paid further sum of Rs. 2/- on 24th May, 1959 towards the same. Laxman Lal died on 10th day of the month of Mash Samvat 2010 leaving behind the plaintiff as his sole heir Har Prasad is also said to have died on 9th February, 1962, leaving behind the defendants as his heirs. It was alleged that the defendants were in possession of the property of the deceased Har Prasad as heirs and were liable to repay the debt of the deceased. On these allegations the plaintiff claimed a decree for Rs. 1175/- against both the defendants. The defendant No. 1 did not put in appearance and it appears that the suit was dismissed against him on 30th August, 1962.

2. The suit was, however, resisted by the defendant No. 2 who in his written statement denied the allegations made by the plaintiff in the plaint. He contended that he was not the heir of Har Prasad and wasnot in possession of his property. It was, however pleaded that he was not liable to pay any amount to the plaintiff towards the alleged debt. In paragraph 13 of his written statement it was pleaded by the defendant No. 2 that Har Prasad died without leaving any heir and that the property of Har Prasad was in the custody of the police. The trial court found that the alleged loan had been advanced to Har Prasad. The execution of the pronote was also held to be proved. It also held that as the name of Vishnu Narain defendant No. 2 was entered in certain agricultural plots be bad become the legal representative of Har Prasad and was, therefore, personally liable for the payment of debt to the extent he had received the land of the deceased. The suit was, therefore, decreed against defendant No. 2 to the extent he had received the property of the deceased Har Prasad.

3. The appellate Court below held that the defendant No. 2 was not an heir of Har Prasad. Applying the Law contained in the provisions of Section 175 of the U. P. Z. A. and L. R. Act it held that the defendant No. 2 was also not a legal representative of the deceased Har Prasad inasmuch as he did not intermeddle with the estate of Har Prasad. Consequently it was held that the suit did not lie against him and the appeal was, therefore, allowed and the suit was dismissed. The plaintiff has now come to this Court in Second Appeal.

4. It was contended on behalf of the plaintiff-appellant that as the defendant No. 2 had acquired Bhumidhari interest of Har Prasad in agricultural land in wbich the defendant No. 2 was co-tenure-holder, his position was that of a legal representative as defined under Sub-clause (ii) of Section 2 of the Code of Civil Procedure. Relying on the principle contained in Section 50 of the Civil Procedure Code the learned counsel contended that the suit against the defendant No. 2 in his capacity as legal representative was maintainable. It was also contended that defendant No. 2 held the property of the deceased Har Prasad in trust for the creditors of Har Prasad and as such he Was liable to pay the debt of the creditor to the extent he received the property of the deceased.

5. Legal representative is defined in the Code of Civil Procedure 'as a person who in law represents the estate of the deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in the representative character, the person on whom the estate devolves on the death of the party so suing or sued'. According to this definition the deceased must have left behind a estate and the legal representative would be one who in law would be representing that estate or who would be intermeddling with that estate. We have, therefore, to see whether Har Prasad deceased had left behindany estate which is either being represented by defendant No. 2 or with which the defendant No. 2 is intermeddling. Har Prasad and defendant No. 2 were co-bhumidhars of certain agricultural plots of land vide Ext. 1. The plaintiff had alleged in the plaint that the defendant Nos. 1, 2 and 3 were the heirs of Har Prasad. This contention was found to be incorrect by the appellate Court below. It was thus found that Har Prasad died heirless. In these circumstances, his bhumidhari interest in the agricultural plots in question passed by survivorship to the other co-tenure-holders namely defendant No. 2 under Section 175 of the U. P. Z. A. and L. R. Act.

In this connection it would be relevant to refer to the provisions of Sections 189, 194 and 195 of the U. P. Z. A. and L. R. Act. Section 189 lays down that the interest of a Bhumidhar in a holding or any part thereof shall be extinguished when he dies intestate leaving no heir entitled to inherit him in accordance with the provisions of the Act. Section 194 of the aforeaid Act provides that if the interest of Bhumidhar in an agricultural land is extinguished under Clause (a) of Section 189, the Land Management Committee shall be entitled to take possession of the land comprised in the holding and as provided under Section 195 the Land Management Committee shall have the right to admit any person as Sirdar of any land other than the land falling in any of the clauses mentioned under Section 132. From these provisions it is manifest that if a Bhumidhar dies leaving no heir to inherit his property in accordance with the provisions of the U, P. Z. A. and L. R. Act his interest in the land of which he was the exclusive Bhumidhar extinguishes and the Land Management Committee becomes entitled to take possession of the land.

Similarly if the deceased was a co-tenure-holder in a land and if he died without leaving any heir entitled to inherit his property in accordance with the provisions of the Act, the surviving co-tenure-holder becomes entitled to take possession of that land. The interest of such a Bhumidhari in the land would extinguish the moment he died and thereafter the surviving co-tenure-holder gets the possession of that land, not as a representative of the said deceased but in his own right which he has under the statute. His position is also not that of an intermeddler because there is no property of the deceased with which he could be said to be intermeddling. The property of the deceased namely his Bhumidahri interest in the holding extinguishes under Section 189, the moment he dies without leaving an heir. The surviving co-tenure-holder namely the defendant No. 2 was therefore, not a legal representative as defined in Sub-section (ii) of Section 2 of the Civil Procedure Code.

6. Now I proceed to examine the second contention raised on behalf of theappellant as to whether the defendant No. 2 held the property of Har Prasad as a trustee. The learned counsel referred me to the provisions of Section 90 of the Indian Trusts Act which provides that 'where a tenant for life co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such gains an advantage in derogation of the rights of the other per-lons interested in the property or where any such owner, as representing all persons interested in such property gains any advantage he must hold for the benefit of all persons so interested the advantage so gained but subject to payment by such persons of their due shares of the expenses properly incurred and to an indemnity by the same persons against liabilities properly contracted in gaining such advantage.' Section 90 deals with the advantage gained by a qualified owner of any property and provides that if such qualified owner by availing himself of his position as such gains any advantage in derogation of the rights of other persons who are interested in the property, he should hold the property for the benefit of such persons who are interested therein. In the present case the defendant No. 2 did not gain any advantage in derogation of the rights of the other persons who might be interested in the property of the deceased. Har Prasad had not mortgaged his Bhumidhari interest in favour of the plaintiff oc the plaintiff's father in respect of the plainitiff's loan in question. The defendant No. 2 was a co-tenure-holder and it so happened that Har Prasad died without leaving any their his Bhumidhari interest in the land extinguished on his death under Section 189 of the U. P. Z. A. and L. R. Act and possession immediately passed to defendant No. 2 under the statutes. The defendant No. 2 got the property because of a statutory provision and not because of any act of a party. He then held the property in his own rights and not as a trustee. The provisions of Section 90 of the Indian Trusts Act were, therefore, not applicable to the present case.

7. No other point was urged.

8. In the result the appeal fails and it is accordingly dismissed with costs.


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