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1956 DIGILAW 248 (RAJ)

Dhool Chand v. Ganpatlal

1956-11-16

BAPNA

body1956
Bapna J.—This is a second appeal in execution proceedings. 2. Ganpatlal Mahajan had a decree against one Ambalal Brahmin for recovery of money. Ambalal, judgment-debtor died, and Ganpatlal wanted to execute the same against his legal representatives, and made an application that his legal representatives were Kesarlal and Dhoolchand, against whom the decree should be executed. Dhoolchand filed an objection on 5th August, 1948, that although he was the son of Ambalal, he had been adopted by Ganpatlal brother of Ambalal. It was. therefore, prayed that the decree be not executed against him. The parties led evidence and the Civil Judge Gangapur, held by judgment of 24th November, 1949 that Dhoolchand had failed to prove that he had been adopted to Ganpatlal. The objection was dismissed. Dhoolchand filed an appearand Mr. Gajendra Singh, District Judge, Bharatpur, was of opinion that the matter of the adoption was not as relevant as an enquiry as to who was in possession of the house left by Ambalal. The idea seems to have been in his mind that whether Dhoolchand may or may not have gone in adoption, if he was in possession of the house left by Ambalal, he would be an intermeddler with the property of the deceased, and would thus come within the definition of legal representative. After remand, further evidence was led, and the learned Civil Judge came to the conclusion in respect of the dispute regarding the house that it had not been proved that the house belonged to Ambalal. He therefore, allowed the objection, and held that the decree-holder could only proceed against Kesarlal. The decree-holder filed an appeal, and the learned District Judge, while upholding the finding that the house had not been proved to have been built by Ambalal, proceeded further on the other question, and concurred with the previous finding of the Civil Judge that the adoption had not been proved. He, therefore, held that the decree-holder was right in proceeding both against Kesarlal and Dhoolchand. although their liability extended only to the extent of the estate of the deceased in their hands. 3. Dhoolchand has come in second appeal, and it is urged on his behalf that he could not be held to be a legal representative when it has been found that the house of which he was in possession did not belong to Ambalal. 3. Dhoolchand has come in second appeal, and it is urged on his behalf that he could not be held to be a legal representative when it has been found that the house of which he was in possession did not belong to Ambalal. Learned counsel relied upon Chunnilal Harilal vs. Bai Mani (1), for the proposition contended by him that in order that a person can be held to be a legal representative of the deceased judgment-debtor, he should be shown to have been in possession of the property left by the deceased. 4. In my opinion the contention of the learned counsel for the appellant is not well-founded. In the first place, the said authority of the Bombay High Court was doubted in the subsequent Bombay cases, and ultimately the view was overruled in Jamburao Satappa Kochari vs. Annappa Ramchandrappa (2). I am also of opinion that the definition of legal representative found in sec. 2(11) of the Code of Civil Procedure is a wide one. "Legal representative has been defined as meaning "a person who in law 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 party so suing or sued." According to this definition "legal representative" first of all means "a person who in law represents the estate of a deceased person." For the determination of the question whether a certain person is or is not a legal representative, it is not necessary to enquire immediately whether the deceased person left any estate, and to what extent. It may be the subject of a subsequent enquiry in determining the extent of the liability of the legal representative. In law a person, who is the heir of a deceased, represents the estate of a deceased person, although in certain special cases some person other than the heir may represent the estate of deceased person, as for instance, administrator or executor. The sons of a deceased judgment-debtor would thus be his legal representatives irrespective of the fact whether the deceased left any estate or not. As stated earlier that matter will have to be gone into in order to determine the extent of the liablity of the legal representative. The sons of a deceased judgment-debtor would thus be his legal representatives irrespective of the fact whether the deceased left any estate or not. As stated earlier that matter will have to be gone into in order to determine the extent of the liablity of the legal representative. In the present case, Dhool-chand would be one of the legal representatives of the deceased judgment-debtor Ambalal except where his adoption may be proved. The two courts have come to a concurrent conclusion that his adoption to Ganpatlal has not been proved. In the circumstances the lower court was right in holding him to be the legal representative of the deceased judgment-debtor, and, therefore, liable to be proceeded against by the decree-holder. 5. I may also point out that this was not the stage at which the court should have embarked on an enquiry as to the ownership of the house in occupation of Dhoolchand. If the said house is got attached by the decree-holder, Dhoolchand will have the opportunity to file an objection, and then that matter can be gone into in more detail according to law. 6. This second appeal has no force, and is accordingly dismissed with costs.