1. this is a second appeal by defendants Nos. 2 and 3, and it arises out of a suit which the plaintiff brought on a hand-note executed by one Lalit Mohan Bhuttacharya.
2. After the institution of the suit Lalit Mohan died. The plaintiff brought in on the record as the legal representative of. Lalit Mohan not only defendant No. 1, the widow of Lalit Mohan and admittedly his legal representative, but also added defendants Nos. 2 and 3 on the ground, to quote the words of the learned Subordinate Judge that 'on his (Lalit Mohan's) death the defendants Nos. 2 and 3 appropriated some bricks of the kiln' which belonged to Lalit Mohan. The learned Subordinate Judge further found that defendants Nos. 2 and 3 took away those bricks under the orders of the District Board of Nadia.
3. The Subordinate Judge held that the claim was valid, and made a decree not only against the widow as representing the estate of Lalit Mohan but also against defendants Nos. 2 and 3 as the legal representatives of Lalit Mohan.
4. Defendants Nos. 2 and 3 have preferred this appeal, and it was contended on their behalf that they had no concern with this litigation and were wrongly made parties to it. It was further contended that the widow was the legal representative of the deceased man and she represented the estate of Lalit Mohan, and the bringing in of defendants Nos. 2 and 3 was, therefore, not justified in law.
5. It was further contended on behalf of, the appellants that assuming that a person by intermeddling with the estate of the deceased may make himself liable as an executor de son that, the findings in this case did not show that defendants Nos. 2 and 3 were really executors de son tort.
6. On behalf of the respondent, the learned Vakil contended that the order of the Courts below adding defendants Nos. 2 and 3 as legal representatives of the deceased, in addition to the widow, was justified under Section 2, Clause (II) of the C.P.C. It was also contended by the learned Vakil for the respondent that the finding in this case that defendants Nos. 2 and 3 took away some bricks belonging to the deceased, made them legal representatives of the deceased within the meaning of Section 2, Clause (11).
7. Mr. Roy who appeared for the respondent, however, was unable to produce any authority on the point that the mere taking away of a portion of the properly of a deceased man makes the person, who takes away a portion of the property while there is a legal representative present, become, an executor de son tort. The learned Vakil has also not been able to find any authority for the proposition that while a legal representative within the primary meaning of the word is in existence, an executor de son tort should also be added as a party to the suit in addition to such legal representative.
8. It appears to me that the contention of the learned Vakil for the appellants is well-founded and that when Lalit Mohan, left a widow who represented his estate after his death in this suit which was brought against Lalit Mohan on a personal obligation of Lalit's, on Lalit's death his widow would be the proper representative of the deceased man in a suit against: him.
9. As to the second point, I think it is only necessary for me to say that I do not think that upon the findings of the learned Subordinate Judge, the defendants Nos. 2 and 3 were at all executors, de son tort of the estate of Lalit Mohan. There is no finding that they intended to act, as legal representatives of Lalit Mohan and to represent his estate by intermeddling with it.
10. Therefore, I think that the order bringing in defendants Nos. 2 and 3 and the decree which, was made in their presence. as necessary parties are not correct;
11. The appeal is, therefore, allowed and the suit dismissed as against defendants Nos. 2 and 3.
12. The plaintiff will pay the costs of the defendants Nos. 2 and 3 in all the Courts including the costs of this appeal.
13. I agree.