T S NAGAPPA NADAR Vs. TSKARUPPIAH NADAR

JUDGEMENT

(1.) THIS petition refers to a contest between the petitioner and the 1st respondent, as to who is the legal representative of one deceased Sinnappa Nadar, who was the plaintiff, in O.S. No. 224 of 1922. The learned District Munsif has disposed of the matter, on the finding that the respondent is the person who has intermeddled with the estate of the deceased and that he is therefore the proper legal representative to be put on record. We are quite unable to accept this disposal of the matter. Under Order 22, Rule 5 of the Civil Procedure Code: Where a question arises, as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court. and for that purpose, the Court must take evidence and decide for itself, who has got the better claim. In the present matter the question as to who is the legal representative would depend first upon whether the property in suit was the self-acquisition of Chinnappa or was joint family property. If it is found, that it was his self-acquisition then the question would have to be considered whether the will relied on by the respondent is true and valid. If the will fails, the further question will have to be decided whether the adoption of the petitioner, as alleged by him or of the respondent as alleged by him is true and is valid. On these findings, the question as to who is the legal representative of the deceased will have to be settled. If on the other hand, the learned District Munsif finds that the suit property is joint family property question will turn on whose adoption is valid or if either of them is. If the finding, on that point, is in favour of the petitioner before us the will, that is relied on by the other side will be of no value. So far as this suit is concerned the question of intermeddling with the estate has really nothing to do with the present case, because the matter has to be decided on the rights of parties. THIS is not a case, where there are no parties entitled to represent the estate of the deceased, where intermeddling might be made the basis of bringing a person on record as legal representative to make him liable for the decree on the ground of his intermeddling. The Munsif has referred in his judgment to the case reported in Chunilal Hari Lal V/s. Bai Mani (1918) 42 Bom. 504, as authority for holding that neither of the parties could claim as adopted son, to be the legal representative of the deceased. The learned Judges held in that case "on no construction of the term legal representative could a member of a joint family be brought within the definition, as contained in Section 2, Clause 11 of the Civil Procedure Code" We are with all respect, Unable to accept this view. A member of the joint family who succeeds to a deceased member is a person who "represents the estate of the deceased person" if we take Words "the estate" as meaning the joint family estate which the deceased person was himself the representative of, when he brought the suit. It will perhaps be easier in such a case to bring the succeeding member within the last clause which says "where a person sues in a representative character, the person on whom the estate devolves in the suit is a legal representative." It cannot be denied that where a managing member sues and the suit refers to joint family estate, it is really a suit in a representative character for all the members of the family. When he dies, the next managing member is the person on whom would devolve the representative character and we think he could come in, as the legal representative. In this case, therefore, if the property is found to be joint family property, the question will have to be decided as to who the member of the joint family is, who is entitled to represent that estate on the death of Chinnappa, the deceased. The order of the lower Court cannot be sustained, as it stands at present. It was argued that this being a revision petition under Section 115, Civil Procedure Code, we should net interfere, as the lower Court has exercised the jurisdiction vested in it under Order 22, Rule 5, Civil Procedure Code. We think, however, this is a case, where that jurisdiction has been exercised with material irregularity, because the learned District Munsif has not come to any conclusion, as to who is the legal representative, according to the rights of parties. He has treated the intermeddler as the legal representative; but that is not sufficient to dispose of the claim of the petitioner that he is the proper legal representative. In these circumstances, we set aside the order of the lower Court and remand the petition to that Court, for a fresh disposal according to law. The costs in this and the lower Court will abide and follow the result.