MERCY Vs. AISHA UMMAL

JUDGEMENT

(1.) The suit properties belonged to deceased Meera Sahib Mohammed Kunju. Plaintiff and defendants 1 to 3 are his heirs. Plaintiff sued for partition of her 1/3 share. Preliminary decree for partition was passed and the matter is pending final decree. Defendants 4 to 16 were impleaded as alienees of some of the properties from the third defendant. Among them, 13th defendant was interested in items 12 and 13. Pending final decree he died. The suit was instituted on 29-8-1963 and preliminary decree was on 23-5-1967. Though 13th defendant died on 1-2-1980 impleading application was filed only on 27-8-1981 and that too without mentioning the date of death and unsupported by any application for condonation of delay or setting aside the abatement. Revision petitioners and 7th respondent were the persons sought to be impleaded. Even two years before suit in 1961 the 13th defendant transferred items 12 and 13 in their favour reserving only the right to take the usufructs. Without considering any of these objections including that of limitation the Trial Court ordered them to be impleaded. That is the order sought to be revised.

(2.) Revision petitioners and the 7th respondent impleaded as additional defendants 22 to 29 are the widow and children of deceased 13th defendant who had no other heirs. They contended that since 13th defendant parted with the properties in their favour even before the date of suit leaving no hereditable right with him at the time of his death they are not his legal representatives and themselves being owners of the properties not made parties to the suit the right of the plaintiff, if any, is only to proceed against them in a separate suit. Rejecting that contention the Trial Court held that the question of title to the property is immaterial and since they are persons entitled to represent the estate of the deceased, they are his legal representatives and the question relevant for. consideration is only whether they are the widow and children and as such his heirs.

(3.) Since at the time of arguments the revision petitioners only wanted modification of the order permitting them to agitate their independent claim over the properties, I am not considering the question of abatement or delay in filing the petition for impleading. The Trial Court seems to have lost sight of the distinction between legal heirs and legal representatives. Legal heirs may be legal representatives but not always. Legal heirs are persons entitled to inherit the surviving estate of the deceased. Legal representatives as defined in S.2(11) of the CPC are persons 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. Legal heirs always need not be legal representatives. On the death of a defendant or defendants the question of impleading legal representatives itself will arise under O.22 R.4(1) only when the right to sue against him survives after his death. When a person is sued in his capacity as representing an estate and the claim in the suit as against him is only in relation to that estate, the persons who acquired independent title either from him or otherwise prior to the institution of the suit and not made parties to the suit cannot be brought on record as his legal representatives because their claim is independent and not under the deceased defendant.