DORAISWAMI THEVAR Vs. CHIDAMBARAM CHETTIAR

JUDGEMENT

(1.) Petitioner is 2nd defendant in O.S. No. 160 of 1927 District Munsif's Court, Mayavaram. The plaintiff died and the respondents (Nos. 1 to 3) applied to be brought on the record as his legal representatives. They pleaded to be entitled to be brought on because the plaintiff had been suing in the character of their benamidar and they are the persons really interested in the suit, The learned District Munsif has accepted their plea without addressing his mind to its merits. He simply states that having found the plaintiff to be their benamidar they are in his opinion entitled to be recognised as legal representatives.

(2.) This recognition would be under Order XXII, Rule 3, Schedule I, "shall cause the legal representative of the deceased plaintiff to be made a party." And Section 2, Clause (11), Civil Procedure Code, defines what a legal representative is. It is not suggested that the respondents (Nos. 1 to 3) in law represent the estate of the deceased but it is argued that the deceased sued in a representative character and on his death the estate on behalf of which he was suing devolved upon the petitioners. The phrase "sue in a representative character" does not convey any ambiguity to my mind. Whatever role a person openly assumes in a suit is the character in which he sues. If a benamidar chooses to sue as [absolute owner, and is asked in what character he sues, he will naturally say as absolute owner; to say that he is suing in the character of benamidar when he assumes the role of absolute owner is sheer violation of plain language. It is hardly necessary to labour the point To the question " In what character did you go to the fancy dress ball", the answer, I went as myself but I dressed up as Napolean, " would be nonsense.

(3.) It is urged for petitioner that Section 2, Clause (1;), Civil Procedure Code, has nothing to do with trustees who do not sue in a representative character but in their character of trustees on behalf of the trust; and when a trustee dies the estate does not devolve upon the beneficiary, as may be seen from Section 73, Act II of 1882. I agree, Section 2, Clause (11), Civil Procedure Code, in my opinion, refers to suits in which a person is allowed to represent others in a representative capacity, and not to trustees; but since the deceased plaintiff never appeared either as a trustee or in any representative character but sued in his own right, the point does not arise.