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Sobha Ram and ors. Vs. Bahadur Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. 701 of 1971 and R.S.A. 13 of 1970
Judge
Reported inAIR1973HP44
ActsCode of Civil Procedure (CPC) , 1908 - Section 2(11) - Order 22, Rule 3
AppellantSobha Ram and ors.
RespondentBahadur Singh and ors.
Cases ReferredThakurai Bhup Narain Singh v. Nawab Singh
Excerpt:
civil - legal representative - appellant filed suit for possession of suit land through pre-emption - during pendency of appeal respondent died - appellant contended that appeal must be accepted as suit had become in-fructuous and suit be dismissed - son of respondent opposed application on ground that suit land had been transferred as gift in his favour - whether son of respondent can be called his legal representative - son of respondent neither inherited property nor is in possession of property as manager or executor - he does not represent estate of deceased - son of respondent cannot be said person representing estate of respondent as suit property had been transferred during pendency of suit - objection of son of respondent overruled. - .....the respondent sunder singh. had got other property of the deceased in the year 1953. whereas the suit property had been transferred to him in the year 1969 during the pendency of the suit and therefore, the petitioner could not come forward as the legal representative as an intermeddler saving that he represented the estate of the deceased. the deceased had ceased to have any interest in the property by transfer and, therefore. sunder singh cannot be said to represent the estate of the deceased as the deceased had no property left which could be represented by sunder singh after his death, as the property had during the lifetime of the deceased been disposed of by him by his voluntary action. he has also relied on conugunta subbarayudu v. eluri brahmanandan, (air 1970 andh pra 211) to.....
Judgment:
ORDER

Chet Ram Thakur, J.

1. Sobha Ram and another had filed an appeal against the judgment and decree, dated 24-10-1969. passed by the District Judge, Sirmur at Nahan. dismissing the appeal of Sobha Ram against the judgment and decree of the Senior Sub Judge, Nahan. decreeing the suit of Bahadur Singh for possession of the suit land through pra-emption.

2. Bahadur Singh plaintiff-respondent died during the pendency of this second appeal and according to the appellants he had no legal representative excepting Ohetu respondent No. 2, vendor, and as such the appeal must now be accepted as the suit had become in-fructuous. inasmuch as the appeal is also in continuation of the suit and the suit be dismissed.

3. Sunder Singh son of Chuhar Singh filed a reply to this application opposing the same on the ground that the deceased had transferred through aregistered gift deed, dated 14-8-1969 his night, title and interest in. the land measuring 12 bighas 10 biswas including the land in dispute in the appeal along with share in the shamilat situate in village Chavahan in his favour and he had been in peaceful possession thereof ever since. The deceased had also previously donated the rest of his land measuring 9 bighas 19 biswas in his favour by a registered gift deed, dated 21-12-1953 and that he was his nearest surviving collateral next to Chetu respondent and that in law he was the legal representative of Bahadur Singh deceased for the purposes of the present appeal being a transferee of the estate of the deceased including the entire land which is the subiect-matter of the appeal. It was also contended that the suit had not become infructuous. The suit was decreed in favour of Bahadur Singh deceased who after obtaining title and possession of the land in suit gifted the land by means of a registered deed, dated 14-8-1969.

4. A rejoinder had been filed by the appellant-petitioner, wherein it was contended that the appellant had no knowledge if any gift had been effected by the deceased respondent in favour of Sunder Singh. In case Sunder Singh considers himself to be a transferee or assignee from Bahadur Singh. the only course open for him was to apply under Order 22. Rule 10 of the Civil Procedule Code. He had no locus stand to contest the application submitted by the appellants. Sunder Singh does not fall within the definition of a legal representative of the deceased. Bahadur Singh deceased had no right or interest in the property in suit which are sub judice and as such the transfer effected by him is void and inoperative. In the presence of Chetu respondent, Sunder Singh cannot claim any right. Sunder Singh cannot claim to be a legal representative of Bahadur Singh. nO right, title or interest has vested in Sunder Singh as he is not the legal representative of the deceased.

5. The only question in this application is whether Sunder Singh is the legal representative of the deceased, if not. what is the effect

6. The learned counsel for the appellant has on the basis of a number of authorities tried to show the distinction between Order 22, Rule 3 and Order 22, Rule 10 of the Civil Procedure Code. According to him, Sunder Singh is not the legal representative as defined under Section 2 (11) of the Civil Procedure Code because the estate of the deceased has not devolved on him by inheritance after the death of Bahadur Singh, rather he is a transferee of the property and that transfer had beeneffected by Bahadur Singh during his life time. Therefore, in view of this ha could not be said to be a legal representative and his case clearly falls under the provisions of Order 22, Rule 10. Civil P. C. and for that matter he had to make an application to be impleaded as a party and that way the appellant had his right to contest that application so made. by Sunder Singh, But he could not avail of the provisions of Order 22, Rule 3. Civil P. C. which applies only in case of the legal representative who is to be brought on the record on the death of a particular person, to whose estate the legal representative succeeds. On the contrary a few authorities have been cited by the learned counsel for the respondent to show that he was the legal representative within the meaning of Section 2 (11). Civil P. C. as he represents the estate of the deceased and, therefore, he was entitled to be brought on the record as a legal representative of the deceased,

7. 'Legal representative' as de-fined in Section 2 (11) 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 person on whom the estate devolves on the death of the party so suing or sued. From the plain reading of this definition it appears that a person in possession of the estate of the deceased or a person who intermeddles with the estate of the deceased are the legal representatives for the purposes of this definition and it is not necessary that they should necessarily be the legal heirs. It is sufficient if they represent the estate of the deceased or are in possession of the estate of the deceased,

8. Now I will consider the authorities cited by the learned counsel for the appellant-petitioner in this behalf. In Gobardhan Mukharji v. Saligram Marwari, (AIR 1936 Pat 123) a person made an application to get his name substituted in place of a deceased the sole plaintiff on the basis of a right which had accrued to him not on the death of the plaintiff but on a transfer made to him during the plain-tiff's lifetime. It was held that the applicant could not come in as a man entitled to have his name substituted in consequence of the death of the plaintiff. In Chacko Pyli v. Ipe Varghese, (AIR 1956 Trav Co 147 (FB)) it was held that the character of legal representative must accrue after and on account of the death of the person whose estate is to be represented. There cannot be a legal representative of a person in his lifetime. The transferee of property acquires rights during the lifetime of the transferor and none afteror on account of the transferor's death. Therefore, the transferee in a transfer inter vivos cannot be a legal representative. In Sivathanu Pillai Nagaru Pillai v. Velayudha Perumal Pillai Ramaswami Pillai, (AIR 1957 Trav-Co. 2121 it was held that of the two devolutions, one by death and the other by assignment, the latter has to be given effect to under Order 22. Rule 10. Order 22. Rule 3 cannot apply to the case of a transferee from the original plaintiff as the right does not devolve on him by reason of the death of the plaintiff. In Ramprasad v. Jamnaprasad, (AIR 1952 Madb Bha 153) the question was as to whether Ramprasad can be impleaded as the legal representative of one Gayaram on the ground that he intermeddled with the property of the deceased and it was held that it is essential in order to constitute a person an intermeddler. that there should be an intention on his part to act as a legal representative and to represent the estate of the deceased. A trespasser or a person, who claims a title in himself adversely to the estate of the deceased cannot be an intermeddler. A person would not be an intermeddler unless he takes upon himself to act as an executor or administrator without any just authority. Where, if is not alleged by the plaintiffs, that a person intermeddled with the estate of the deceased after his death, and where the only ground on which the plaintiffs seek to implead a person is that in the lifetime of deceased he entered into a collusive transaction with the deceased and obtaining a fraudulent decree pur-chased the property in a court sale, these allegations do not make the person an intermeddler.

9. The learned counsel for the appellant-petitioner has also cited Hazari v. Neki. (AIR 1968 SC 1205) to show that in the case of a right of pre-emption under Section 15 (I) (a) of the Punjab Pre-emption Act (Punjab Act I of 1913) it is a personal right in the sense that the claim of the pre-emptor depends upon the nature of his relationship with the vendor. But where the condition of Section 14 exists and an involuntary transfer takes place by inheritance, the successor to the land takes the whole bundle of the rights which go with the land including the right of preemption. In view of Section 306 of the Succession Act. the right of pre-emption under Section 15 (I) (a) does not abate with the death of the pre-emptor. So according to him there is a distinction between voluntary devolution and involuntary devolution. In this case, there was involuntary devolution and, therefore, the right to sue survived and it did not abate. But in so far as the case in hand is concerned it is not a case ofinvoluntary devolution, but it was a pure case of voluntary devolution during the lifetime of the deceased and during the pendency of the case. The learned counsel has also argued that the respondent Sunder Singh. had got other property of the deceased in the year 1953. whereas the suit property had been transferred to him in the year 1969 during the pendency of the suit and therefore, the petitioner could not come forward as the legal representative as an intermeddler saving that he represented the estate of the deceased. The deceased had ceased to have any interest in the property by transfer and, therefore. Sunder Singh cannot be said to represent the estate of the deceased as the deceased had no property left which could be represented by Sunder Singh after his death, as the property had during the lifetime of the deceased been disposed of by him by his voluntary action. He has also relied on Conugunta Subbarayudu v. Eluri Brahmanandan, (AIR 1970 Andh Pra 211) to show that the suit should he deemed to be pending as the appeal is in continuation of the suit. There can be no dispute with this proposition. From the aforesaid authorities it would be obvious that a transferee or an assignee during the lifetime of the deceased cannot be called a legal representative or an intermeddler so 'as to represent his estate after his death because that is a voluntary devolution and not an involuntary devolution as is the distinction made in the case of Hazari AIR 1968 SC 1205 (supra). The applicant has gifted away the property in the year 1953 and the suit property was transferred by him to Sunder Singh during the pendency of the suit in the year 1969. Therefore, by no stretch of imagination in the face of the ratio enunciated in the aforesaid authorities, the respondent can be termed as a legal representative or an intermeddler so as to have the right to be brought on record under the provisions of Order 22, Rule 3.

10. Now. I will deal with the authorities relied upon by the learned counsel for the opposite side. According to him the scope of Section 2 (11) has been extended and it has been laid down in Andhra Bank Ltd. v. R, Sri-nivasan, (AIR 1962 SC 232), that even a legatee who obtains only a part of the estate of the deceased under a will can be said to represent his estate end is, therefore, a legal representative under Section 2 (11). In the aforesaid case the contention was that the respondents who were in possession of different pieces of property belonging to the deceased Raia Bahadur under the will executed by him could not be said to be the legalrepresentatives under Section 2 (11) of the Code. So, it was in view of these facts that it was held they were also included within the definition of the legal representatives even though they represented different portions of the estate of the deceased. So this authority, in my opinion, will not assist the respondent because in that case they got the property under a will and will waa to operate after the lifetime of the deceased, whereas in the instant case it was a transfer inter vivos during the lifetime of the deceased and he had left no property which could be inherited or represented by others, including Sunder Singh. He had become the owner of the property in his own right or independently of Bahadur Singh during his lifetime and, therefore he could not be said to represent the estate of Bahadur Singh so as to say that he should be impleaded as a party under the provisions of Order 22, Rule 3 as a legal representative of the deceased. He had to make an application under Order 22, Rule 10 of the Civil Procedure Code for impleading him as a party. The second authority relied upon by the learned counsel for the respondent is Malook Dass v. Sahib Ram. (AIR 1964 Punj 532). This authority has got no application to the facts of the present case, inasmuch as in that case on the death of the Mahant the trial Court had impleaded his Chela as the legal representative and on first appeal the decision of the trial Court was reversed on the ground that Malook Dass was not the legal representative of Ganga Dass Mahant. But the High Court held that the decision of the trial Court could not be reversed on appeal on the ground that Chela was not the legal representative of Ganga Dass when he had been so held by the trial Court. Further when the Mahant had died during the pendency of the suit the Chela was found to be in possession of the other estate of Thakar Dwara as a de facto manager and so there was no other legal representative in existence and, therefore, the Chela was held to be an intermediet who could continue the suit. The third authority is Indu Bhushan Mitra v. Sudhakar Choudhury. (AIR 1957 Cal 106). This authority has been cited to show that the doctrine of lis pendents as embodied in Section 52, Transfer of Property Act. does not mean that a transfer pendente lite is either illegal or void. What it means is that it is only voidable to the extent that it affects the rights of the party who obtains the decree or an order in the pending litigation and that at the instance of that party only and not of any other party. It is good otherwise and cannot be questioned by a third party or even by thesuccessful party In the pending litigation if his right in the property in question is left unaffected by the transfer. So. this authority has also got no bearing. Tatya Lagamanna Desai v. Yogabai, (AIR 1962 Bom 191) has also been cited to show that the transfer pendente lite is a nullity. The only effect of such e sale is that it will not be allowed to affect right of the decree-holder, who has filed his suit earlier in respect of the property, which has subsequently become the subject-matter of the litigation. This authority has also no relevance. Thakurai Bhup Narain Singh v. Nawab Singh, (AIR 1957 Pat 729) has also been cited to show as to what is the scope and object of lis pendens.

11. In fact the point of consideration by this Court was whether Sunder Singh respondent who has opposed the application of the appellant-petitioner for acceptance of the appeal and the dismissal of the suit is a legal representative as defined under Section 2 (11). Civil P. C. On the analysis of the authorities I have come to the conclusion that he is not the legal representative. He neither inherited the property nor he is in possession of the property as manager or executor. He. therefore, does not represent the estate of the deceased. The property had been transferred by Bahadur Singh to Sunder Singh during his lifetime as back as 1952 and the suit property had been transferred during the pendency of this suit. Therefore, he cannot, be termed as a person representing the estate of the deceased. The deceased had left no estate which could be represented after his death. It was a voluntary devolution made by the deceased during his lifetime in favour of Sunder Singh and he being not the legal representative has got no right to be impleaded as a legal representative. As a transferee, if he may so choose, he may make an application to implead him as a party. Hence the objections of Sunder Singh fail and the same are overruled.


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