Dr. Mumtaz Hussain, defendant, had purchased a car from Messrs. Jaidah Motors Company (Qatari), Doha, Qatar on hire-purchase basis for a total amount of QDR 13,625 (Qatari Rials) which he promised to pay to the said company in monthly instalments through the National and.
Grindlays Bank, Doha. He made payment of QDR 1200 in three instalments of QDR 400 each. On taking a job in Dubai the defendant was permitted --by the company to take the car on furnishing satisfactory guarantee/ authority from a guarantor at Doha. The plaintiff furnished the guarantee and on failure of the defendant to pay the money, the company obtained a. Decree for Q D R 12,787.50 including costs against the plaintiff, on 30th of June 1971. The defendant executed a deed of guarantee on the 26th. Of July 1971 in favour of the plaintiff undertaking to pay the total amount of Q D R 15,600 in 12 instalments. The defendant, it was alleged, did not pay this amount to the plaintiff and secretly left for Pakistan. The: plaintiff has now filed this suit for the recovery of Q D R 15,600 (equal to Rs. 39,000.00) as principal amount, and after adding interest at commercial rate of 8 % the total amount claimed by him comes to Rs. 421-0. During; the pendency of the suit, the defendant died on the 25th of October 1972. The plaintiff applied under Order XXII, rule 4, read with section 151,. C. P. C. For bringing his legal representatives on record, which was --granted.
2. Dr. Arshad Mahmood, plaintiff, submitted an applications (T. A. No. 126/C/73) in the High Court praying that the case be withdrawn-- from the Court of the Administrative Civil Judge and tried by itself on the-- ground that the brother of the deceased who is one of his legal representa--tives, is a serving Judge of this Court. By my order dated the 19th of June 1973, 1 transferred the case to the High Court and decided to hear it myself.
3. On the death of defendant, Dr. Mumtaz Hussain, the suit could note proceed unless the legal representatives were brought on record. The plaintiff, in his application, under Order XXII, rule 4, C. P.
C. Stated that the defendant was survived by his wife, two daughters, and a brother. He did not give the name of the wife and also failed to mention the names of the daughters. His brother, who had been named in the application, when served, submitted a written statement in which he averred that "the deceased-defendant has not left behind any estate and therefore the question of any body's representing his estate does not arise."
4. A "legal representative" as defined in clause (11) of section 2 of the Code of Civil Procedure "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". It is manifest from this definition itself that there is distinction between a "legal representative" and the term "next of kin". Although a person may be "next of kin" yet he may not be the "legal representative". "Next of kin" can be the legal representative of a deceased person only in respect of the property which he may get from him by succession. It is thus for the plaintiff in a case to bring on record the legal representatives of the deceased, because till such time he does so, the suit remains in a state of suspense and no order excepting a formal or pro--cedural one can be passed. The plaintiff in the instant case has submitted a application for impleading legal representatives of the deceased. Since the brother of the deceased has taken objection that the deceased has not left behind any estate of his own to which any body would succeed, the question whether or not he is the legal representative of the deceased falls for determination under rule 5 of Order XXII, C. P. C. Before the Court can proceed further.
5. Learned counsel for the plaintiff contended that once it is admitted by the objector that he is the brother of the deceased, he should for the purpose of making the proceedings in order, be brought on record, and that if he denies having succeeded to any estate of the deceased, the proper course for him would be to raise the objection in the execution proceedings. Reliance is placed on Sumeshar Bind and others v. Baldeo Sahu and others (AR 1935 All. 3390wherein it was held, "The plaintiff is not under any duty to prove, before he can get a decree, that the persons named by him as the legal representatives got any estate of the deceased. All that he has to show, in order to get a decree, is that the person whom he is suing would have got the estate of the deceased, if he had left any. Now if the deceased had left any estate then his brothers would have been his legal representatives. The plaintiff was, therefore, entitled to maintain a suit against them without giving any proof that they were in possession of any property of the deceased. My view is that a person who would have got the estate of the deceased will be deemed to be his legal representative". It was further observed: "When he applies for the execution of his decree then the question will come up for consideration whether the deceased has left any assets, If the decree --holder can prove that the surviving coparcener got arty assets then he would be entitled to execute. His decree against surviving coparcener or coparceners". It was not disputed in the aforementioned case that they debtor, before his death, did hold the property jointly with the person' who was sued as his legal representative. The plea taken by the defendantwas that the property was a joint Hindu family property and on the death of the debtor it survived to the defendant and such interests as the debtor had in his lifetime were extinguished. In Hindu Law after the death of a member of coparcenery the property vests in the surviving members. It does not go to the heirs of the deceased. However, if there is a joining property, as distinguished from a joint Hindu property, the share of the deceased vests in his heirs. It was in such circumstances that the Court held that the question whether or not the deceased left any assets should be taken at the stage of execution.
The present case is distinguishable from the one, under reference, for the reason that the suit in that case was instituted after the death of the debtor. In the case in hand the debtor died during the pendency of the suit and an application was made to implead the objector as his legal representative. Since he has categorically averred that the deceased did not leave any property he is not his legal representative. Learned counsel then relied on Tamiz Bano v. Nand Kishore and another (AIR 1927 All. 459in which it was observed: It is neither lawful nor expedient to throw out the case against the legal representative altogether simple case because one of the legal representatives alleges and seeks to prove that no assets are available". This was the view of Mukerji, J. Ashworth, J., had observed: "The fact that the plea of `plene administrative' can be taken in execution proceedings when events justifying such a plea may have occurred subsequent to the decree, is no reason why it cannot be taken in the suit as a reason for no decree being passed". The suit in that case was decreed only after it had been held that the heirs had the assets of the deceased. Reliance was also placed on Lallu Bhagvan v. Tribhuvan Motiram ((1889) 13 Bom.
653wherein it was held: "Where a suit is brought against the sons and legal representatives of a deceased Hindu for debts contracted by the latter, the Court ought to pass a decree although the deceased debtor may have left no assets." it was further observed: "A decree ought to have been made against defendants as representative of their father, whether they had inherited any property or not If they had had no property, the only result would have been that the decree could not have been executed against them". The facts of that case are again distinguishable, because under the Hindu Law it is provided that "sons must pay the debt of their fathers, when proved, as if it were their own, that is, with interest, and whether they have inherited assets or not." Reliance was further plaged on Shankarla' and another v. Ganesh Singh and another (AIR 1926 Nag. 170wherein it was held: "A suit against the legal representatives of a deceased debtor should not be dismissed on the mere ground that the defendants are not in possession of any portion of the estate left by the deceased." This judgment is again distinguishable. It was not the case of the heirs of the deceased in that ease that he had not left any property. The plea taken by them was that they were not in possession of his assets. Learned counsel then referred to Girdharlal Krishnavalabh v.
Bal Shiv ((1884) 8 Bom. 309where it was observed that "a plaintiff is entitled to sue the legal representative of his deceased debtor and to obtain a decree against him, without proving that assets have come into his hands." The same view was affirmed in Motiram v. Daw Hnin E and others (AIR 1934 Rang. 196). The property in law vests in the legal representatives of a person immediately on his death, and once it is proved that the deceased had left some assets his legal representatives can be brought on record even if the assets may not have come into their hands.
An heir may not be in possession of the assets, which may be held by some person who tries to hold the same adversely to the deceased or to him, but in law after the death of the person the estate will vest in the heir. He cannot, in such a situation, dispute his character as a legal representative of the deceased. He shall be representing his estate notwithstanding the fact that he is not in possession of the same. There can thus be no dispute with the proposition laid down in the two cases cited immediately above. Learned counsel for the plaintiff, however, laid stress on the observations in Motiram's case viz., that a "person is entitled to sue the legal representatives of his deceased debtor and to obtain a decree against them without proving . . . . That the deceased debtor left any assets". The observation is contradiction in terms, because if the deceased had not left behind any assets, there can be no legal representative. A person can be a legal representative of a deceased person only if he succeeds to his estate. The defendants, in the present case, having died during the pendency of the suit an application was made for impleading his legal representatives. The representative' character has been denied by the objector. In the circumstances, the foremost question which arises for determination by the Court is whether o not any person is the legal representative of the deceased. If the contention of the learned counsel is accepted and the determination of the question is Postponed to be adjudged at the execution stage, the entire proceedings culminating in the decree , if one called for, will be a futile pursuit a d will also render nugatory the provisions of rule 5 of Order XXII of the Code of Civil Procedure. The plaintiff cannot make the "next of kin" to be a legal representative in the suit, for, I have no doubt whatsoever in my mind that before a person can be a legal representative, he must in law represent the estate of a deceased person, or, at least, he may intermeddle with the same. Thus, if the plaintiff is not able to show that there was any estate left by the deceased, the objector, though brother of the deceased, will not be his legal representative, and the suit in such circumstances will have to be dismissed. I am fortified in my view by a series of authorities, which lay down the same law. It was held in Sheolal v. Chindhu and others (AIR 1920 Nag. 195"The plaintiff is entitled to a decree" against the heir "if he proves that any assets belonging to the deceased debtor exist." In Ganpatrao Sakharam Kakde v. Babarao alias Narayanrao (AIR 1943 Nag. 233while referring to Order XXII, rule 5, C. P. C. It was observed: "To postpone an inquiry into these contentions till after the decrees are passed means that the defendants, if eventually, he be found not to be in possession of any of the property of the deceased and is not really an intermeddler, would be saddled unnecessarily with the costs of the suit and the appeals." Doubtless, in Ranjit Singh v. Mt. Narmadi (AIR 1931 Nag. 173it was held that "in a suit filed against the debtor's heirs as the legal representative the plea that the defendant does not possess the assets of the deceased debtor could not be held to resist the suit, it could be raised only in execution proceedings". This view was, however, not approved by a Division Bench of Nagpur High Court in S. A. No. 514 of 1936 in In re : Babusa v. Khandas, Ihave taken these facts from AIR 1943 Nag. 233=235 by observing: "In our opinion the view expressed in Heera Lall Mockerjee v. Digumbura Raloonee (14 W R 431.And by Ashworth, J. In Tamiz Banc) v. Nand Kishore (49 All. 645) is correct. The contrary view appears to us likely to result in injustice as, for instance in a case where a defendant, as the legal representative of the deceased debtor, admits all the allegations of the plaintiff except that he holds any assets of the deceased out of which the claim can be recovered. If the plaintiff's suit is to be decreed in all such cases the defendant will find himself saddled with costs which the subsequent execution proceedings may show to have been completely unjustified if it then transpires that in point of fact the defendant is properly not in possession of any of the assets of the deceased, e. g., because there never were any such assets." The important observation is that "there never were any such assets. The view of the Punjab Chief Court on this question was precisely the same. In Madho Dass v. Radha Mal (1874) P R 213) it was held : "The person who sues the legal representative of a deceased debtor must allege and prove that such representative is entitled to a certain estate". It was further observed: "The existence and receipt of estate by the legal representative should be inquired into before decree, unless a prima facie case appears on proof that the representative is entitled to an existing estate, without proof that it has come into his actual possession". In (The Firm) Bagh Mal Daya Ram v. Garimju Mal and another (AIR 1923 Lah. 471the debtor having died his sons were impleaded as legal representative. Their Lordships of the Division Bench observed "The plaintiffs-appellants' counsel Mr. Tek Chand urges that the question whether Indar possessed an estate of his own, may be left to be decided in execution proceedings. But the defendants had pleaded in clear terms that Indar left no property as he died in the lifetime of his father, and that the plaintiffs could have no cause of action against them without establishing that `such and such property of Indar deceased was in their possession'. The plaintiffs failed to mention any such property, and therefore, according to no rule of law their claim can be decreed on the ground that they may be able to indicate in execution proceedings the property, if any, left by the deceased debtor. This would amount to giving them further opportunities to harass the defendants".
7. The objector is a sitting Judge of the High Court. He has unmistakably stated in his written statement, which has been duly verified, that the deceased did not leave any property. The plaintiff has not brought anything on the record to show that the deceased owned any property at the time of his death. I have no reason whatsoever to doubt the statement of the objector, and by giving full credence to it would hold that since the deceased left behind no estate of his own, the objector though next of kin is not a legal representative within the meaning of section 2(11) of the C. P. C.
Accordingly, I would dismiss the suit, leaving the parties to bear their own costs.
K. B. A. Suit dismissed.