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Kusum Bandhu Chakravarty and anr. Vs. Ramdayal Bhattacharjee - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in69Ind.Cas.179
AppellantKusum Bandhu Chakravarty and anr.
RespondentRamdayal Bhattacharjee
Excerpt:
civil procedure code (act v of 1908), section 2(11) - legal representative--execution sale--person in possession of deceased judgment-debtor's property. - .....sarbanunda died and parbati, the brother of sarbanunda,, was substituted in his place as his legal representative on the record. in execution, the disputed lands were sold and purchased by one bharat. the plaintiff then purchased this property from bharat. but when he sought for registration of hi* name in the collectorate, his name was not registered apparently on the objection of the defendants and this led him to bring this suit.2. the suit has been decreed by both the courts below and the defendants nos. 3 and 5 have appealed to. this court.3. the ground urged by the defendants nos. 3 and 5, the appellants to this court, is that the execution sale did not pass the title which sarbanunda had in the property because his estate was not properly represented in the execution.....
Judgment:

Ghose, J.

1. The plaintiff brought the suit out of which this appeal arises for declaration of title to and confirmation of possession in certain lands on the ground that they belonged to one, Sarbanunda. Certain persons obtained a decree against Sarbanunda and executed the decree against him. During the course of the execution, Sarbanunda died and Parbati, the brother of Sarbanunda,, was substituted in his place as his legal representative on the record. In execution, the disputed lands were sold and purchased by one Bharat. The plaintiff then purchased this property from Bharat. But when he sought for registration of hi* name in the Collectorate, his name was not registered apparently on the objection of the defendants and this led him to bring this suit.

2. The suit has been decreed by both the Courts below and the defendants Nos. 3 and 5 have appealed to. this Court.

3. The ground urged by the defendants Nos. 3 and 5, the appellants to this Court, is that the execution sale did not pass the title which Sarbanunda had in the property because his estate was not properly represented in the execution proceedings. Sarbanunda, it is said, was adopted as a son in another family, and, therefore, Parbati who was his natural brother was not his legal representative, but his legal heirs were the sister's sons of the adoptive mother of Sarbanunda. The appellants have purchased the interest of the said legal heirs and they, therefore, say that the plaintiff having no lawful title is not entitled to the decree asked for as against them. Both the Courts below have, however, found that Parbati was in possession of the property in dispute after the death of Sarbanunda. That being so, he was the legal representative of Sarbanunda according to the definition in Section 2 (11) of the Code of Civil Procedure. Parbati, therefore, was properly substituted as the legal representative of Sarbanunda in the execution proceedings, and, therefore, the sale passed the title which Sarbanunda had in the property to the auction purchaser It is urged on behalf of the appellants that the fact that Parbati has been found to have been in possession of the disputed property after the death of Sarbanunda was not sufficient to make him a legal representative under the provisions of the Civil Procedure Code as stated above, but it was necessary that he should do something more. But it is not suggested what more was necessary in order to constitute him the legal representative of Sarbanunda. Upon the concurrent findings of the Courts below, it is clear that Parbati had intermeddled with the estate of Sarbanunda after his death and I, therefore, think that he was the legal representative of Sarbanunda within the meaning of the Code and the execution levied against him was proper. Reference was made to the case of Khiaraj-mal v. Daim 32 C. 296 at p. 3l7 : 1 C.L.J 584 : 32 I.A. 23 : 8 Sar. P.C.J. 734 : 9 C.W.N. 201 (P.C.) : 2 A.L.J. 71 : 7 Bom.L.R. 1 and it was urged that the sister's sons of the adoptive mother of Sarbannnda not having been brought on the record in the execution proceedings on the death of Sarbanunda, no title passed to the plaintiff. In my opinion, that case does not affect the present question, because in that case it was found that the persona whose property was sold were not parties to the proceedings or properly represented on the record. If Parbati was the legal representative, according to the definition in the Civil Procedure Code, of Sarbanunda, there cannot be any question that the auction purchaser Bharat acquired a good title to the property and the plaintiff as purchaser from Bharat is justly entitled to the decree asked for. The appeal is, therefore, dismissed with costs.


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