MT. HASINABAI W/O. FAKARDUDDIN Vs. SHRIKISANDAS TIKAMDAS

JUDGEMENT

(1.) THIS is a second appeal from the judgment and decree passed by Mr. J.N. Haksar, Additional District Judge, Nimar on 17-11-1939 in civil Appeal No. 10B of 1939, reversing the decision of the trial Court. The suit was based upon a promissory note, dated 11-5-1932 (Ex. p-l) and the plaintiff brought the suit as the sole surviving trustee of a trust. In the plaint the plaintiff is described as trustee, by virtue of a sale-deed dated 6th June 1921, executed by Mt. Kadhabai, wife of Kishan Das, and others, Panch and Wahiwatdar of Gujrathi Mod Community, Burhanpur. The defendants denied the right of the plaintiff to bring the suit and the trial Court dismissed the suit. The first appellate Court re-versed the decree of the trial Court. Hence the defendants filed this appeal.

(2.) THE only question upon merits is whether the plaintiff has a right of suit as the defendants do not deny execution or consideration. Before this part of the case is taken up, there is one other point in connection with the death of the plaintiff and the substitution of Seth Shrikishandas, son of Tikamdas of Burhanpur as the respondent which needs decision. It is argued that. Seth Shrikishandas who is nominated by the legal representatives of the late Seth Thakurdas (plaintiff) as a trustee is not the legal representative of Seth Thakurdas for the purposes of Order 22, Civil P.C.

(3.) THERE is no need to read the definition from the Civil Procedure Code into the Trusts] Act. The trust property has devolved upon the present respondent (Seth Shrikishandas) under Section 75, Trusts Act as he has been legally appointed by the legal representatives of the sole surviving and continuing trustee. The words "legal representative of the trustee in Section 73, Trusts Act, mean his legal representative in his personal capacity, and not qua trustee. On the other hand for the purposes of a suit the words 'legal representative' mean the successor in office on whom the trust property devolves. Sir Dinshaw Mulla's comment under Section 2(11), Civil P.C., at p. 12 of his Edn. 11 is quite clear: Thus on the death of a trustee or of a shebait of a mutt, his successor in office and not his executor or heir is the legal representative, and the suit would be continued by or against the successor under Order XXII, Rule 3 or 4.