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Gyan Datt and ors. Vs. Sada Nand Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1938All163
AppellantGyan Datt and ors.
RespondentSada Nand Lal and ors.
Excerpt:
- - , where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the court which passed it to execute the same against the legal representative of the deceased......does not devolve on his death on his joint son. but if the father represented the estate of the joint family during his lifetime, it is difficult to hold that the son though joint with him cannot represent the estate of the joint family which was represented by his de-ceased father and is not a person who in law represents the estate of a deceased person. in order to be a legal representative under section 2(11), it is not necessary that a person should be a legal heir of a deceased person. 'legal representative' as defined in section 2(11) means a person who in law represents the estate of a deceased person, and includes any person who inter. meddles with the estate of the deceased and whore a party sues or is sued in a representative character the person on whom the estate devolves.....
Judgment:

Ganga Nath, J.

1. This is a judgment-debtors' appeal and arises out of execution proceedings taken out against them by the respondents decree-holders. The respondents have got a decree for possession by demolition of the constructions alleged to have been made by Bachchai deceased and other judgment-debtors. After passing of the decree, Bachchai died and the appellants who are his sons and grandsons have been brought on the record as his legal representatives. They objected to the execution of the decree on the ground that they were not the legal representatives of Bachchai and were not bound by the decree, The objection taken by them is inconsistent, inasmuch as at one place in it they have stated that they were in possession of the property in dispute in their own right and at another place they have contended that the whole property passed to them by survivorship on the death of Bachchai. They have not denied that Bachchai had an interest in the property in dispute. They contended:

That whatever right and interest Bachchai Dube had in the property in question came to an end with his death and the objectors are in possession of the property by the law of survivorship; they cannot in law be his legal representatives.

2. According to them, no decree passed against and member of the joint Hindu family would be binding on and executable against the other members. If according to them a son who is joint with his father is held not to be a legal representative of the father, a decree other than a decree for debt, as for example a decree for possession or a mortgage decree obtained against the father, would be infructuous. In one sense a co-parcener leaves no estate in the co-parcenary property on his death, and under the Hindu law a surviving co-parcener, even though a son, does not get his property by succession as his heir. A co-parcener does not succeed to the property through another coparcener and in this sense the estate of the judgment-debtor does not devolve on his death on his joint son. But if the father represented the estate of the joint family during his lifetime, it is difficult to hold that the son though joint with him cannot represent the estate of the joint family which was represented by his de-ceased father and is not a person who in law represents the estate of a deceased person. In order to be a legal representative under Section 2(11), it is not necessary that a person should be a legal heir of a deceased person. 'Legal representative' as defined in Section 2(11) means a person who in law represents the estate of a deceased person, and includes any person who inter. meddles with the estate of the deceased and whore 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. The last portion of thin definition is wide enough to cover the cane of a co-parcener who gets property by survivorship on the death of a co-parcenor who sues or is sued in a representative character.

3. In the case of a joint Hindu family, it is not necessary that a person who sues or is sued in the representative character should be described as the manager of the family. It is sufficient that the person who sues or is sued holds a representative character. In Hori Lal v. Nimman KKunwar (1912) 34 All. 549 it was observed (vide p. 560):

The ordinary rule undoubtedly is that all persons interested in a suit should be made parties to it. But in the case of a joint Hindu family this rule is complied with if the manager of the family is sued or sues and thus represents the other members of the family. What is required is that all persons whose interests are to be affected by the suit are sufficiently and substantially represented, In the case of a joint Hindu family, all persons interested are represented in the suit by the manager and are substantially parties to it through the manager. I do not think that it is essential that the manager, when he brings his suit, should state in distinct terms that he is suing as manager, or that the plaintiff in a suit against the family should describe the defendant as the manager of the family. All that is essential is that the manager is in fact suing or is being sued as such in respect of a family debt. If it is denied that the person suing or sued is the manager, that fact must be proved.

4. In Lingangowda v. Bastangowda , it was observed by their Lordships of the Privy Council:

In the ease of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he becomes of age, and then bring an action, or bring an action by his guardian before; and in each of these cases therefore the Court looks to the Expl. 6, of Section 11, Civil P.C., 1908, to see whether or not the leading member of the family has been acting either on behalf of minors in their interest, or if they are majors, with the assent of the majors.

5. In the present case, the suit was brought against Bachchai Dube as manager of the family constituted by him and the objectors. There is no doubt the fact that he was the manager of the family was denied in the written statement. The objectors have denied in the execution proceedings also that Bachchai Dube was the manager of the family. But they admitted that they prosecuted the case on behalf of their father, Bachchai Dube, and they fought it up to this Court. The learned Munsif has found that Bachchai Dube was the head and karta of the family. The lower Court has also affirmed this finding by observing that the case was defended by Adya Prasad, one of the appellants on behalf of their grandfather, Bachcha Dube, up to this Court. There can thus be no doubt that Baohoha Dube was the head and manager of the family and as such represented the whole family. It being so, the appellants will come under the definition of legal representative as given in Section 2(11). Under Section 50, Civil P.C., where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.

6. It has been urged on behalf of the appellants that they were in possession of the property in their own right. As stated above, this contention is inconsistent with their statement in para. 3 in their objection in which they stated that they were in possession of the property in dispute by survivorship after the death of Bachchai Dube. They have not denied that Bachchai Dube had any right or interest in the property in dispute. On the other hand, they have admitted it. Their contention was simply to the effect that they did not acquire any title through Bachchai Dube but independently of him under the law of survivorship. They might have done so, but it cannot be said that they did not represent the estate which was represented by Bachchai Dube in the suit. I therefore agree with the finding of the lower Courts. There is no force in the appeal. It is therefore ordered that it be dismissed with costs. Permission for Letters Patent appeal is refused.


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