DHARAM DAS Vs. BISHUN NARAIN

JUDGEMENT

(1.) THIS is plaintiff's ap peal arising out of a suit filed by him against Gorey Lal and Vishun Dayal for recovery of a loan of Rs. 375/- said to have been ad vanced by his father to Har Prasad who had agreed to repay the same with interest at the rate of 2% per month and had executed a pronote in favour of Laxman Lal. It is alleged that Har Prasad paid a sum of Rupees 5/- on 26th May, 1956 towards the said loan and had paid further sum of Rs. 2/- on 24th May, 1959 towards the same. Laxman Lal died on 10th day of the month of Magh Samvat 2010 leaving behind the plaintiff as his sole heir Har Prasad is also said to have died on 9th February, 1962, leaving behind the defendants as his heirs. It was alleged that the defendants were in possession of the property of the deceased Har Prasad as heirs and were liable to re pay the debt of the deceased. On these al legations the plaintiff claimed a decree for Rs. 1175/- against both the defendants. The defendant No. 1 did not put in appearance and it appears that the suit was dismissed against him on 30th August, 1962.

(2.) THE suit was, however, resisted by the defendant No. 2 who in his written state ment denied the allegations made by the plaintiff in the plaint. He contended that he was not the heir of Har Prasad and was not in possession of his property. It was, however pleaded that he was not liable to pay any amount to the plaintiff towards the alleged debt. In paragraph 13 of his written statement it was pleaded by the defendant No. 2 that Har Prasad died without leaving any heir and that the property of Har Pra sad was in the custody of the police. The trial court found that the alleged loan had been advanced to Har Prasad. The execution of the pronote was also held to be proved. It also held that as the name of Vishnu Narain defendant No. 2 was entered in certain agricultural plots he had become the legal representative of Har Prasad and was, therefore, personally liable for the payment of debt to the extent he had received the land of the deceased. The suit was, there fore, decreed against defendant No. 2 to the extent he had received the property of the deceased Har Prasad.

(3.) IT was contended on behalf of the plaintiff-appellant that as the defendant No. 2 had acquired Bhumidhari interest of Har Prasad in agricultural land in which the de fendant No. 2 was co-tenure- holder, his posi tion was that of a legal representative as defined under sub-clause (ii) of Section 2 of the Code of Civil Procedure. Relying on the principle contained in Section 50 of the Civil Procedure Code the learned counsel contended that the suit against the defen dant No. 2 in his capacity as legal represen tative was maintainable. It was also con tended that defendant No. 2 held the pro perty of the deceased Har Prasad in trust for the creditors of Har Prasad and as such he was liable to pay the debt of the creditor to the extent he received the property of the deceased.