P.K. Tare, J.
1. This revision under Section 115 of the Civil Procedure Code is by the defendant against the order, dated, 29-8-1961, passed by Shri S. N. Chaturvedi, Additional District Judge, Indore, in Civil Suit No. 61 of 1955, holding that the present respondent, Miss Hamida was a legal representative of the original plaintiff, Wali Mohammad for the purposes of continuing the suit under Order 22, Rule 5 of the Civil Procedure Code. Wali Mohammad filed the present suit on 30-9-1955, wherein he claimed an amount of Rs. 29,651/-from the Mills, as also fixation of the bonus amount to him.
2. At this stage, we are not concerned with the merits of the defence raised by the petitioner. Wali Mohammad died on 18-9-1959 and an application for substitution was made by the present respondent Miss Hamida on 17-10-1959. That was well within time.
3. The defendant Mills contested the application on the ground that the claimant was not the real daughter of the deceased. Wall Mohammad. The question, therefore, arises whether her name could be substituted as a legal representative of the deceased plaintiff.
4. A legal representative is defined by Section 2(11) of the Civil Procedure Code as follows:
' 'legal representative' means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the persons on whom the estate devolves on the death of the party so suing or sued.'
It will, therefore, be seen that the term 'legal representative' means not only a person, who in law represents the estate of a deceased person, but , also includes any person who intermeddles with the estate of the deceased, although such intermeddle may not in law represent the estate of a deceased person.
5. Therefore, if the cause of action survives after the death of a party, the provisions of Order 22, Rule 1 of the Civil Procedure Code are attracted. The suit cannot be said to abate if the right to sue survives. Thereafter, the provisions of Order 22, Rule 3 and Order 22, Rule 5, Civil Procedure Code would be attracted. The effect of an order, passed under Order 22, Rule 5 would not be to confer on the intermeddler any right or title or interest, if there be none. Such an order is only for the purposes of the suit itself. The right of the intermeddler has to be adjudicated upon independency of such order.
6. However, the learned counsel for the petitioner, urged that the phrase 'intermeddler' would not include a rank trespasser. In this connection attention was invited to a Division Bench case of the Calcutta High Court in Satya Ranjan Roy v. Sarat Chandra, AIR 1926 Cal 825, wherein it was held that a person taking away a portion of the property of a deceased man does not get a right to be substituted as a legal representative merely because of his possession of a portion of the property of the deceased in the face of other legal representative, who are in possession lawfully. There can be no doubt that a rank trespasser has no right to claim to continue the suit after the death of a party on account of his unlawful trespass. I do agree with the proposition that a rank trespasser ought not to be allowed to continue an infructuons litigation.
7. To the same effect were the observations of Bhide, J. in Jai Kishen Dass v. Karimuddin, AIR 1939 Lah 321 where a decree-holder died leaving a lawful heir and another person was unlawfully in possession of the property. The learned Judge, with reference to the definition of a legal representative under Section 2(11) of the Civil Procedure Code, held that the person in unlawful possession could not be deemed to be a legal representative in the presence of a lawful heir.
8. Therefore, a person in possession of the; estate of the deceased can certainly be proceeded against, although he may not have a legal title. However, such possession does not entitle him to continue a suit as a plaintiff on behalf of the estate. This distinction was clearly brought out by Pollock, J. in Balkisan Hukmichand, a firm by Proprietor Radhakisan v. Mst. Jatnabai, ILR (1939) Nag 526 : (AIR 1938 Nag 298). The learned Judge, on the principles of English Law as enunciated in Halsbury's Laws of England made the following observations:
'Apart from the question whether she is Bhivraj's heir, the lower Court has held that she is in possession of his estate and is therefore his legal representative, as defined in Section 2(11) of the Civil Procedure Code, and so entitled to sue. It is, to my mind, a remarkable proposition that a person by entering into wrongful possession of the estate of a deceased person should thereby be entitled to sue for debts due to that estate. The liabilities and rights of an executor de son tort are set out in Halsbury's Laws of England, Volume 14, pages 180 to 182, and there is no suggestion there that an executor de son tort is entitled to recover debts due to the estate of which he has wrongfully taken possession. In Wharton's Law Lexicon, 13th edition, at page 338, it is stated that an executor de son tort is liable to all the trouble of an executorship without any of the profits on advantages and that such a one cannot bring an action himself in right of the deceased but actions may be brought against him. In Williams on Executors, 12th edition, at page 559, it is stated. 'It is clear, however, that an executor de son tort cannot bring any action in right of the deceased.' I, therefore, hold that mere intermeddling with, the estate of Bhivraj would not give Jatnabai the right to maintain this action.'
9. Therefore, it will be seen that although, a person in unlawful possession of the estate of a deceased can be proceeded against as a defendant, he does not get a right to continue the suit as a plaintiff by virtue of such unlawful possession. That principle was followed by the late Padhye, J, in Kisanlal v. Bhika, ILR (1948) Nag 474: (AIR 1949 Nag 171) where the person claiming to be legal representative laid a claim adverse to the deceased. The learned Judge held that any person, laying an adverse claim to the deceassed cannot certainly be called a legal representative, as he does not claim through him.
10. The case of AIR 1939 Lah 321 (supra), decided by Bhide, J. came up for consideration before Hiduyatullah, J. (as he then was) in Baliram, v. Mukinda, ILR (1951) Nag 25: (AIR 1951 Nag 145). The learned Judge, referring to the case law on the point exhaustively, ultimately made the following observations:
'In my opinion the observations of Bhide, J. merit the closest consideration. The history of law shows that all along it was the intention of the legislature to make the property of a judgment-debtor available even after his death for the satisfaction of decrees passed against him. To put a narrow construction upon the definition, deprives a decree-holder of the fruits of his litigation because property may change hands several times, and the decree-holder would therefore be required to bring a multiplicity of suits to get the fruits of his decree. In my opinion the word 'intermeddler' has been used in its ordinary meaning of a person who meddles with the property, of another without any right thereto, and at least, in executions where a decree has been legally obtained against the property the intermeddler must be treated as a legal representative for purposes of the continuance of the execution under Section 50. I am in favour of the liberal interpretation placed upon the definition of 'legal representative'.'
11. The case before Hidayatullah, J. (as he then was) was a case of an intermeddler, who claimed to be a legal representative of a deceased judgment-debtor. The precise question whether, an intermeddler who claims to be a legal representative of a plaintiff can continue the suit merely on account of his wrongful possession was not for consideration before the learned Judge. That question was precisely for consideration before Padhye, J. in ILR (1948) Nag 474: (AIR 1949 Nag 171). A clear distinction has been brought, out about the rights and liabilities of an intermeddler by Pollock, J. in ILR (1939) Nag 526: (AIR 1938 Nag 298) (supra):
12. Attention was further invited to the observations of Their Lordships of the Supreme Court in Andhra Bank Ltd. v. R. Srinivasan, AIR 1962 SC 232. Their Lordships, while reversing the view of a Division Bench of the Madras High Court specifically overruled the earlier case of Natesa Sastrigal v. Alamelu Achi, AIR 1950 Mad 541. In the earlier case the view expressed by the High Court was that a legatee of a part of the property of the deceased, would not be a legal representative. Their Lordships negatived that proposition and held that even a legatee of a part of the estate of a deceased, would be an intermeddler within the meaning of Section 2(11) of the Civil Procedure Code, The case before their Lordships of the Supreme Court was not that of a rank trespasser. Moreover, it was the case of a legal representative of the deceased judgment-debtor.
13. In my opinion, different considerations have to be applied to the case of an intermeddler who claims to continue the suit on behalf of the deceased and an intermeddler against whom a party, wants to proceed in place of the deceased defendant. As pointed out by Pollock J., an intermeddler would have the liabilities and obligations and not the right to continue the suit. Therefore, even if the intermeddler. can be considered to be a legal representative for the purpose of continuing a suit against him as representing the estate of the deceased, he cannot be said to have been armed with a right to continue a suit on behalf of the estate in place of the deceased merely on the strength of his unlawful trespass. He has to establish his right of suit independently of such unlawful possession, as was the case before Pollock J., who upheld the right of Jatnabai to sue as an heir. If he is unable to do it, he cannot be sub stituted as a legal representative.
14. In the present case, it is clear from the facts on record that Miss Hamida, whose name was permitted to be substituted by the trial Court, was brought up by the deceased, Wali Mohammad from childhood. She is not shown to have been related to Wali Mohammad in any way. It is also clear that the second respondent, Ismail is a brother of the deceased. Wali Mohammad, who, however, did not choose to be substituted as legal representative. It appears that Miss Hamida having been brought up by the deceased, is in possession of his estate. But that alone does not confer on her a right of suit on behalf of the estate of, the deceased. That right can belong only to a lawful heir. Therefore, I am of opinion that the order passed by the trial Judge cannot be sustained in law.
In this Court also, the second respondent, Ismail, the brother of the deceased did not appear and state that he wanted to continue the suit, as a legal representative. In the trial Court he stated that he did not want to continue the suit, but Miss Hamida being in possession should be substituted as a legal representative. Under these circumstances, the suit, in my opinion, cannot be continued by Miss Hamida, who cannot be considered to be a legal representative for the purpose of substitution as a plaintiff.
15. The order under revision is, therefore, set aside and the suit is dismissed as abated. There shall however, be no order as to the costsof the suit, which shall be borne as incurred. Thisrevision succeeds and is allowed with costs. Counsel's fee in this Court Rs. 100/-, if certified.