GYAN DATT Vs. SADA NAND LAL

JUDGEMENT

(1.) This is a judgment-debtors appeal and arises out of execution proceedings taken out against them by the respondents decree-holders. The respondents have got a decree for possession by demolition of the constructions alleged to have been made by Bachchai deceased and other judgment-debtors. After passing of the decree, Bachchai died and the appellants who are his sons and grandsons have been brought on the record as his legal representatives. They objected to the execution of the decree on the ground that they were not the legal representatives of Bachchai and were not bound by the decree, The objection taken by them is inconsistent, inasmuch as at one place in it they have stated that they were in possession of the property in dispute in their own right and at another place they have contended that the whole property passed to them by survivorship on the death of Bachchai. They have not denied that Bachchai had an interest in the property in dispute. They contended: That whatever right and interest Bachchai Dube had in the property in question came to an end with his death and the objectors are in possession of the property by the law of survivorship; they cannot in law be his legal representatives.

(2.) According to them, no decree passed against and member of the joint Hindu family would be binding on and executable against the other members. If according to them a son who is joint with his father is held not to be a legal representative of the father, a decree other than a decree for debt, as for example a decree for possession or a mortgage decree obtained against the father, would be infructuous. In one sense a co-parcener leaves no estate in the co-parcenary property on his death, and under the Hindu law a surviving co-parcener, even though a son, does not get his property by succession as his heir. A co-parcener does not succeed to the property through another coparcener and in this sense the estate of the judgment-debtor does not devolve on his death on his joint son. But if the father represented the estate of the joint family during his lifetime, it is difficult to hold that the son though joint with him cannot represent the estate of the joint family which was represented by his de-ceased father and is not a person who in law represents the estate of a deceased person. In order to be a legal representative under Section 2(11), it is not necessary that a person should be a legal heir of a deceased person. "Legal representative" as defined in Section 2(11) means a person who in law represents the estate of a deceased person, and includes any person who inter. meddles with the estate of the deceased and whore 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. The last portion of thin definition is wide enough to cover the cane of a co-parcener who gets property by survivorship on the death of a co-parcenor who sues or is sued in a representative character.

(3.) In the case of a joint Hindu family, it is not necessary that a person who sues or is sued in the representative character should be described as the manager of the family. It is sufficient that the person who sues or is sued holds a representative character. In Hori Lal V/s. Nimman KKunwar (1912) 34 All. 549 it was observed (vide p. 560): The ordinary rule undoubtedly is that all persons interested in a suit should be made parties to it. But in the case of a joint Hindu family this rule is complied with if the manager of the family is sued or sues and thus represents the other members of the family. What is required is that all persons whose interests are to be affected by the suit are sufficiently and substantially represented, In the case of a joint Hindu family, all persons interested are represented in the suit by the manager and are substantially parties to it through the manager. I do not think that it is essential that the manager, when he brings his suit, should state in distinct terms that he is suing as manager, or that the plaintiff in a suit against the family should describe the defendant as the manager of the family. All that is essential is that the manager is in fact suing or is being sued as such in respect of a family debt. If it is denied that the person suing or sued is the manager, that fact must be proved.