TAMIZ BANO Vs. NAND KISHORE

JUDGEMENT

(1.) The facts involved in this appeal are briefly these. A certain person, Abdul Qayum, whose heirs-at-law, the defendants are, borrowed, on a bond on the l6th of March, 1921, a sum of Rs. 300 from the plaintiffs. He having died before the institution of the suit, it was filed against his heirs. Among the heirs was the original appellant to this Court, Mt. Tamiz Bano, who, was a widow of the deceased and is since dead. She denied the execution of the bond by her late husband and said that, on the death of her husband Abdul Qayum, her dower of Rs. 25,000 was due to her and that consequently the remaining heirs of Abdul Qayum sold his property to her in lieu of her dower. She did not say exactly what the effect of her defence was, but clearly she contemplated that the suit could not be maintained as no property of Abdul Qayum was left in the possession of his heirs. The other defendants did not contest the suit, The Munsif decreed the suit. He did not come to any very definite finding as to the allegation of sale in lieu of dower. He said: I am not inclined to hold that the debt of Rs. 25,000 had been proved. There is no thing to prevent the plaintiff from proceeding against the property at present in the hands of the contending defendants as assets of Abdul Qayum.

(2.) On appeal the learned Subordinate Judge doubted that the transfer was really a genuine transaction but he said that he was not going to decide what was Mt. Tamiz Bano's dower and he dismissed the appeal. In this Court, it is said that the tower appellate Court should have come to a clear decision as regards the alleged transfer in lieu of dower and that no decree could be passed against the original appellant, Mt. Tamiz Bano, so long as it was not proved that she was in possession of any asset of her husband. I might mention here that Mt. Tamiz Bano having died pending the appeal, some of the original defendants are now prosecuting the appeal as her heir.

(3.) It appears to me that the question whether the legal representatives of a deceased debtor are or are not in possession of any asset of the deceased need not be tried at the present stage of the litigation. When a deceased debtor dies a suit has to be brought against his legal representative. For this proposition no authority need be quoted. The expression legal representative has now been defined in the Civil P.C., in Section 2, Cl.11 as follows: Legal representative means a person who 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.