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Subba Naidu and anr. Vs. Kannia Naidu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberA.A.O. No. 643 and C.M.P. No. 1065 of 1949
Judge
Reported inAIR1950Mad482
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(11) - Order 22, Rules 3 and 4
AppellantSubba Naidu and anr.
RespondentKannia Naidu
Appellant AdvocateA. Ramakrishna Iyer and ; S. Krishnamachari, Advs.
Respondent AdvocateR. Rajagopala Iyengar, Adv.
DispositionAppeal dismissed
Cases ReferredParamaswamy Aiyangar v. Alamelu Natchiar Ammal
Excerpt:
civil - conversion of petition - order 22 rules 3 and 4 of code of civil procedure, 1908 - civil miscellaneous petition (cmp) for converting civil revision petition (crp) into civil miscellaneous appeal (cma) - crp filed in time and requisite court-fee already paid - no reason why crp cannot be converted into cma - held, crp converted into cmp. - .....this adi ammal died and the respondent herein filed an application for being impleaded as the legal representative of the deceased plaintiff alleging that under a will executed by his grandmother all the properties belonging to her, including the suit claim, were bequeathed to him and therefore he was entitled to represent the estate of the deceased plaintiff.4. this application was opposed by defendants 1 and 2 on the ground that a legatee under a will cannot be impleaded as a legal representative since it is only a heir-at-law that could represent the estate of the deceased plaintiff and not a legatee. the trial court accepted the contention raised on behalf of the defendants and dismissed the suit relying on the decision in kolaremathu ama v. madhavi : air1928mad243 . on appeal.....
Judgment:

Chandra Reddi, J.

1. C. M. P. No. 1065 is a petition for converting C. R. P. No. 1794 into a C. M. A. for reasons stated in the affidavit in support of the petition. The civil revision petition was filed in time and the requisite court-fee has been already paid. I therefore see no reason why this prayer for converting the C. R. P. into a C. M. A. should not be granted. I accordingly direct that the C. R. P. be converted into a C. M. A.

2. This Civil Miscellaneous Appeal is brought from the decree and the judgment of the District Judge, Chingleput in A. S. No. 97 of 1948 by defendants 1 and 2 in O. S. No. 226 of 1946. This litigation relates to a claim based on a promissory note executed by defendant 3 in favour of defendant 1 who assigned it to defendant 2. Defendant 3 executed a promissory note for a sum of Rs. 400 in favour of defendant 1 who assigned it to defendant 2. On the foot of this promissory note, a suit was instituted by defendant 2 in the Court of small causes at Madras and obtained a decree. When defendant 2 sought to execute his decree one Adi Ammal sister of defendant 1 instituted O. S. No. 226 of 1946 for a declaration that she was entitled to the sum due under the promissory note executed by defendant 3 in favour of defendant 1 as the amount was advanced by defendant 1 out of the funds belonging to her.

3. Pending this suit, this Adi Ammal died and the respondent herein filed an application for being impleaded as the legal representative of the deceased plaintiff alleging that under a will executed by his grandmother all the properties belonging to her, including the suit claim, were bequeathed to him and therefore he was entitled to represent the estate of the deceased plaintiff.

4. This application was opposed by defendants 1 and 2 on the ground that a legatee under a will cannot be impleaded as a legal representative since it is only a heir-at-law that could represent the estate of the deceased plaintiff and not a legatee. The trial Court accepted the contention raised on behalf of the defendants and dismissed the suit relying on the decision in Kolaremathu Ama v. Madhavi : AIR1928Mad243 . On appeal by the aggrieved party, the District Judge of Chingleput set aside the order observing that the definition of 'legal representative' in Section 2(11), Civil P. C. is comprehensive enough to include a person 'to whom the status of representative is fastened by reason of the death of a person whose estate they are entitled to represent'and directed the trial Court to enquire into the truth and genuineness of the will before the present respondent could come on record as the legal representative of the deceased plaintiff. Defendants 1 and 2 have preferred this appeal.

5. Mr. Krishnamachari, the learned counsel for the appellants, urged before me that a legatee cannot be brought on record as the legal representative of the deceased plaintiff, having regard to the decisions relied on by him. His contention is that a legatee under a will has no locus standi to represent the estate of a deceased party and it is only a heir-at-law that could represent the estate of the deceased party. I will now refer to the provisions of Section 2(11), Civil P. C. which defines legal representative as

'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 person on whom the estate devolves on the death of the party so suing or sued.'

I have no hesitation in holding that the definition of 'legal representative' includes a universal legetee as in this case. The section is wide enough to cover all cases of persons who represent the estate of a deceased person. It cannot be seriously contended that a universal legatee to whom the whole assets of the deceased party have been bequeathed does not represent the estate of that deceased person. The decisions relied on by Mr. Krishnamachari have absolutely no bearing on the question to be decided by me. In Kolaramathu Amma v. Madhavi : AIR1928Mad243 what was laid down was that if the creditor of a deceased person institutes a suit making as defendant in the action a person who but for the will would have been a proper legal representative and obtains a decree therein such a decree is properly obtained as the estate is properly represented. That case did not consider the question whether a universal legatee on whom the whole estate had devolved by reason of the will could be a legal representative within the meaning of Section 2(11), Civil P. C.

6. Another decision relied on by the learned counsel is Sivasankara v. Amaravathi, I. L. R. (1938) Mad. 533 : A. I. R. 1938 Mad. 157. It was held in that case that in India the entire estate left by a deceased person must be deemed to vest in the heir-at-law until an administrator is duly constituted. Till then the heir-at-law could maintain a suit on behalf of the estate. In that case the question that arose for consideration was whether a widow who got some legacy under the will of her husband could maintain a suit on behalf of the estate when an executor appointed under the will declined to accept office and there was no duly constituted administrator. The learned Judges answered the question in the affirmative observing that the widow as heir of her deceased husband was competent to maintain a suit to recover possession of the estate left by her husband including properties not specifically bequeathed to her under the will. So these two oases are not authorities for the proposition stated by the learned counsel for the appellants. Mr. Rajagopala Ayyangar, the learned counsel for the respondents has cited to me some decisions which lay down that a universal legatee is a legal representative within the meaning of Section 2(11), Civil P. C. I do not think this proposition admits of much doubt and it is not necessary for me to refer to the decisions cited by Mr. Rajagopala Ayyangar. Suffice it to refer to the decision in Paramaswamy Aiyangar v. Alamelu Natchiar Ammal, 42 Mad. 76 : A.I.R. 1919 Mad. 510. The following observation of the learned Judges at page 82 of the report is apposite:

'Prima facie the proper legal representative of the deceased plaintiff in the suit is the man to whom the ownership of the rent has passed on plaintiff's death, and the petitioner alleges that he is that person who has become the owner under the will.' In that case on the death of the plaintiff who instituted a suit to recover rent a question arose whether it was the widow of the plaintiff who claimed to be his heir-at-law or the father who claimed interest in the suit property under a will executed by the plaintiff that was to be impleaded as the legal representative. The Revenue Court without going into the validity and genuineness of the will directed the widow to be brought on record. On appeal by the father the High Court directed the Revenue Court to go into the question of the validity and the genuineness of the will and decide whether he had any interest as claimed by him. There are a number of other decisions which lay down the proposition that a universal legatee is a legal representative as denied under Section 2(11), Civil P. C. I therefore hold that in this case the respondent herein is the legal representative of the deceased plaintiff.

7. Another contention was raised on behalf of the appellants, namely, that in any event the appeal before the District Judge had abated by reason of the fact that defendant 3 had died pending the appeal and his legal representatives were not brought on record. It is hardly necessary for me to point out that this contention is devoid of any merit. Apart from the fact that this argument has been advanced for the first time in this appeal, I must mention that defendant 3 was not interested in the result of the suit as he had already deposited the decretal amount into Court stating that the money might be paid to any person that might become entitled thereto under the decree to be passed by the Court. Further the plea that the appeal has abated against defendant 3 is not open to defendants 1 and 2 who are not in any way concerned with it. So even assuming that the appeal would abate as against defendant 3 this plea would not avail defendants 1 and 2 who have nothing to do with them. In these circumstances I hold that there are absolutely no merits in these arguments of Mr. Krishnamachari.

8. For the foregoing reasons I affirm the judgment and the decree of the lower appellate Court and dismiss this civil miscellaneous appeal with costs.

9. No leave.


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