PARI JIVANLAL JETHALAL DECD Vs. MANHARLAL BHAGWANJI ALIAS BHAGVANDAS JETHALAL
LAWS(GJH)-1970-7-18
HIGH COURT OF GUJARAT
Decided on July 15,1970

PARI JIVANLAL JETHALAL (DECD.BY HIS L.R.) Appellant
VERSUS
MANHARLAL BHAGWANJI @ BHAGVANDAS JETHALAL Respondents




JUDGEMENT

A.D.DESAI - (1.)Short facts leading to this revision application are that one Bhagwanji @ Bhagwandas filed Civil Suit No. 218 of 1962 in the Court of the Judge Junior Division Viramgam alleging that there was a joint family consisting of himself and his son that the joint family was carrying on the business in the name of Shah Manharlal Bhagwandas and that the said business belonged to the joint family. II was further alleged that he was the karta of the family and he filed the suit in the said character. The suit was filed against the present petitioners claiming certain reliefs. During the trial of the suit Bhagwanji @ Bhagwandas expired on or about July 4 1966 The opponent therefore made an application Ex. 5 that Bhagwanji the manager and karta of the joint Hindu firm had died and he be brought on record as his legal representative. This application was made on February 10 1967 The defendants raised a contention that the application for bringing the legal representative on record was barred by limitation. The learned trial Judge came to the conclusion that the application made by the opponent was governed by the provisions of Rule 10 Order 22 of the Civil Procedure Code and therefore the same was not barred by the provisions of the Limitation Act. It is against this judgment and order that the petitioners have filed this revision application.
(2.)The question involved in this matter is a very short one and it is whether the application made by the opponent to show him a legal representative of his father who was the karta of the family is governed by the provisions of Rule 4 of Order 22 or Rule 10 of Order 22 of the Civil Procedure Code. It must be noted that the provisions of Rule 4 of Order 22 of the Civil Procedure Code are specific provisions While those of Rule 10 Order 22 of the Civil Procedure Code are general. It cannot be disputed that in the instant case the suit was filed by the karta of the Hindu joint family. A joint family firm is quite separate from a partnership firm. It is also to be noted that no suit can be filed under the provisions of Order 30 of the Civil Procedure Code in the name of joint Hindu Firm. The present case had been filed by Bhagwanji alleging that he was the manager of the joint family firm. When he died his legal representative had a right to make an application to join him as a party to the suit as the legal representative of the deceased. The works legal representative are defined in sec. 2 (11) of the Civil Procedure Code as meaning 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. The karta of a joint family when he files the suit does so in a representative capacity representing the members of the joint family and on his death his legal representatives are the persons who are interested in the estate. The persons who are to be brought on the record as legal representatives are the persons whom he represented. It is undisputed that the present opponent is a member of the joint family. The word legal representatives are of wide import and include an heir as well as other persons who represent the estate. In the present case the opponent being one of the members of the joint family was entitled to represent the estate. Mr. Patel appealing for the opponents contended that this is a case of devolution of interest and therefore the provisions of Rule 10 of Order 22 of the Civil Procedure Code are attracted Reliance was sought to be placed I on the decision in Kishori Lal and another. The Collector of Elah and another I.L.R. (1955) I All. 128. It is not possible to accept this argument. The karta of a Joint Hindu Family has no estate of his own which may pass by succession He merely represents the estate The provisions of Rule 4 of Order 22 of the Civil Procedure Code are specific provisions requiring the legal representative to be brought on record in case of death of a party to the suit. These provisions apply in a case of a death of a party and the provisions of Rule 10 of Order 22 of the Civil Procedure Code apply in cases of assignment devolution of interest etc. i.e. they govern the cases not covered by Rule 4 of Order 22 of the Civil Procedure Code. The decision in Kedarnath Kanoria and other v. Khaitau Sons and Co. A.I.R. 1959 Cal. 348 takes the same view. It is therefore clear that the application made by the opponent in the present case would be governed by the provisions of Order 22 Rule 4 C. P. C. and Article 120 of the Limitation Act 1963 The said Article provides plaintiff or appellant or of a deceased defendant or respondent on record must be made within 90 days of the death of plaintiff or appellant or death of defendant or respondent. In the present case Bhagwanji died on July 4 1966 and the application for bringing his legal representative on record was admittedly made on February 10 1967 i.e. beyond the period of limitation. It is thus clear that the said application is beyond limitation
(3.)The result is that the learned trial Judge was in error in holding that the application made was within limitation. I therefore set aside the slid order and hold that the application for bringing heir on record file by the opponent is beyond the limitation. Rule made absolute. There shall be no order as to costs of this application. Application allowed.


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