MUHAMMAD ZAFARYAB KHAN Vs. ABDUL RAZZAC KHAN

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for possession of certain occupancy holdings and mesne profits. The plaintiffs claimed to have inherited this property as the collaterals of Mt. Zainab, the deceased wife of the contesting defendant Muhammad Zafaryab Khan. The defence was that the property was in the possession of the defendant in his own right and that he had been in adverse possession of it as against his own wife. There was a further plea that the defendant being a lambardar and a cosharer in the village, and the suit having been brought more than six months after the death of Mt. Zainab, was barred under Section 79, Agra Tenancy Act. The claim was decreed, against the defendant The defendant preferred an appeal and the plaintiffs filed certain cross- objections after the time allowed by law.

(2.) A preliminary objection is taken on behalf of the respondents that the appeal has abated. What happened was that during the pendency of the appeal Muhammad Zafaryab Khan died, and an application was made on behalf of his second wife, Mt Zubeda Begam, alleging that she was the only heir of the deceased defendant. Notice was issued to the plaintiffs-respondents, but they did not appear. An order was passed ex parte bringing Mt. Zubeda Begam on the record as the legal representative of Muhammad Zafaryab Khan. Subsequently the respondents applied to this Court for a declaration that the appeal had abated on the ground that some of the heirs of Muhammad Zafaryab Khan had not been brought on the record in time. This application was referred to a Bench of two Judges who held that the ex-parte order could not be re-opened and that Mt. Zubeda Begam must be treated as the legal representative of the deceased. As the property in dispute in this case consisted mainly of occupancy holdings it might have been thought that under Section 22, Agra Tenancy Act, the widow was the only heir to this property. However, the order of the Bench holding that the matter cannot be re-opened is now final.

(3.) We might also point out that under Section 2, Civil P.C. "legal representative" does not necessarily mean all the heirs under the personal law, but means some person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased. Order 22, Rule 5 requires that when the question of the claimant being the legal representative of a deceased party arises the Court shall determine that question. The provisions in Rules 3 and 4 show that after the Court has determined that a particular person is the legal representative, it shall proceed with the suit. It is, therefore, quite obvious that for the purposes of this appeal it must be taken that Mt. Zubeda Begam is the legal representative of the deceased appellant, and, therefore, it is not now open to the respondents to urge that the appeal has abated, because some other heirs have been left out.