STATE BANK OF INDIA v. INDIAN APPAREL INDUSTRIES — 1989 DIGILAW 60 (DEL)

Y. K. Sabharwal, J. ( 1 ) PLAINTIFF bank has filed this suit for the recovery of Rs. 10,25,801-102. Defendant I firm, it is claimed, in the plaint, was the sole proprietary concern of Major R. S. Chadha, since deceased. Major Chadha who died before institution of the suit according to the plaintiff, bad taken from it certain loans. Defendant 2 (a) is the daughter of Major R. S. Chadha: Defendant 2 (b) is his mother: Defendant 3 is his father and Defendant 4 is his brother. Defendants 2 (a) and (b) have been impleaded as surviving Class I legal heirs of deceased Major R. S. Chadha. Defendants 3 and 4 have been impleaded by the plaintiff alleging that the said defendants are intermeddling with the estate and are functioning as de facto administrators of the estate of late Major R. S. Chadha who expired on 23-12-1982 and that the plaintiff understands that they are in possession of his estate. Paras 3 and 4 of the plaint read as under:- PARA 3. "the defendant I, Indian Apparel Industries was a sole proprietary concern of Maj. R. S. Chadha since deceased. The First Defendant has its offices at 48, Vasant Lok, Vasant Vihar, New Delhi-110057 as also at 3/16, Shanti Niketan, New Delhi- 110021. It also maintains a godown-cum-office at 401. Munirka New Delhi. The proprietor of the firm. Major Rajeshwar Singh Chadha expired recently (23rd Dec. , 1982 ). The said Major R. s. Chadha was a divorce and being a Sikh governed by the Hindu Succession Act his two surviving Class I legal heirs entitled to the 18 properties arc his minor daughter Defendant No. 2 (a) and bit mother Defendant 2 (b) and failing them his father. Dr. M. S. Chadha and his brother, Mr. R. S. Chadha being Defendants 3 and 4 hereto both residents of 3/16, Shanti Niketan, New Delhi- 110021.-Miss. Jagriti Chadha is a minor. She is being sued through her grandfather Defendant No. 3. He is her natural guardian in the absence of her mother (a divorcee) Defendant No. 3 has no adverse interest to that of the minor Defendant 2 (a ). PARA 4. The plaintiffs understands that the local guardian of the minor daughter of the deceased Maj. R,s. Chadha, is Dr. She is being sued through her grandfather Defendant No. 3. He is her natural guardian in the absence of her mother (a divorcee) Defendant No. 3 has no adverse interest to that of the minor Defendant 2 (a ). PARA 4. The plaintiffs understands that the local guardian of the minor daughter of the deceased Maj. R,s. Chadha, is Dr. M. S. Chadha Defendant 3 but she has since migrated to Australia and the property and assets of the deceased Maj Chadha are in the active management and control of Dr. MS. Chadha, Defendant 3 herein and Defendant No 4 herein, who are intermeddling with the estate and are functioning as de facto administrators of the estate of late Maj. R. S. Chadha who expired on the 23rd Dec. , 1982 and the plaintiff understands that they are in possession of his estate. The Defendants 3 and 4 are being sued to recover the properties and dues of the plaintiff due and owing from Maj R. S. Chadha to the plaintiff. " ( 2 ) DEFENDANTS 2 (b), 3 and 4 are the applicants and seek dismissal of the suit or striking out their names from the suit. ( 3 ) FOR deciding this application the averments made in the plaint are to be taken as correct in its manner and form. It may be noticed that although in some paragraphs of the plaint there is some ambiguity but learned counsel for the plaintiff conceded during course of arguments that defendants are being sued only in their capacity as legal representatives of Maj. Chadha and not in their individual capacity and their liability would be only to the extent of the estate inherited by the said defendants or in their capacity as intermeddlers. ( 4 ) LEARNED counsel for the applicants has submitted that plaint does not disclose any cause of action against the said defendants even on the averments made in the plaint. He submits that assuming that Major R. S. Chadha was governed by Hindu Succession Act, without prejudice to the contentions of the applicants that he was a Christian at the time of his death, lather (Defendant 3) and brother (Defendant 4) cannot be impleaded in presence of Class I heirs. According to the plaint Defendants 2 (a) and (b) are Class 1 heirs. According to the plaint Defendants 2 (a) and (b) are Class 1 heirs. ( 5 ) THE case set up against Defendants 3 and 4 in the plaint is not that they are legal heirs under the provisions of Hindu Succession Act, The case of the plaintiff is that the said defendants are intermeddling with the estate and functioning as de facto administrators of the estate of Late Maj. R. S. Chadha and the-plaintiff understands that they are in possession of his estate. ( 6 ) MR. Bhagat, learned counsel for the applicants, submits that while impleading Defendants 3 and 4 alleging them to be intermeddlers, it was necessary, in law, for the plaintiffs to further allege that the said defendants had retained the possession of the properties belonging to the estate of Maj. Chadha with the intention of representing the estate. Absence of theseaverments according to learned counsel, is fatal and shows that the plains does not disclose cause of action against these defendants. Reliance is placed on Nagendra Nath Roy v. Haran Chandra Adhikary, AIR 1933 Cal 865 holding that "it is one of the essential tests with regard to the case of persons who intermeddle with the estate of another before they can be called as legal representatives of the deceased person that they must retain possession of the properties belonging to the estate with the intention of representing the estate," The Calcutta High Court has not held that such an averment is necessary to be made in the plaint or absence thereof will be fatal to the suit. The reliance on this judgment, at this stage, is misconceived. The plaintiff has made necessary averments in Para 4 of the plaint and the question whether Defendants 3 and 4 are in possession of properties of Maj. Chadha or whether they came into possession of the said properties with the intention of representing the estate or not are the questions which are to be determined at the trial of the suit after the parlies have led their evidence. It is not necessary for the plaintiff to make an averment that Defendants 3 and 4 had retained the possession of the estate with a view to represent the estate. The plaintiff has specially averred that Defendants 3 and 4 intermeddling with the estate and are functioning as de facto administrators. It is not necessary for the plaintiff to make an averment that Defendants 3 and 4 had retained the possession of the estate with a view to represent the estate. The plaintiff has specially averred that Defendants 3 and 4 intermeddling with the estate and are functioning as de facto administrators. These averments in the plaint, in my opinion, sufficiently disclose cause of action against. Defendants 3 and 4. ( 7 ) THE next submission oi learned counsel for the applicants is that in view of availability of legal heirs of Class 1, the intermeddlers cannot be impleaded as defendants in the suit. The argument is that when a legal heir is available anintermeddler should not be added as a party to the suit in addition to such legal heirs. Reliance has been placed on Satya Ranjan Roy Choudhry v. Sarat Chandra Biswas, AIR 1926 Cal 825 for the proposition that while a legal representative within the primary meaning of the word is in existence, an executor de son tort should not be added as a party to the suit in addition to such legal representative. The words legal representative" is defined in Section 2 (11) of the Civil P. C. and includes any person who intermeddles with the estate of the deceased besides a person who in law represents the estate of a deceased person. A bare reading of the definition of the term legal representative" or the provisions of Order 22, Rule 4. Civil P. C. , do not place any restriction on the impleading of any legal representative. With respect I have not been able to understand what exactly learned Judges meant when they said "legal representative within the primary meaning of the word. "probably they meant that when an heir under Succession Law was in existence a legal representative under Section 2 (11), Civil P. C. , should not be impleaded and that appears to be the reason for observing that widow would be the proper representative of the deceased man. I do not, however, find any such limitation in Civil P. C. or Succession Act". If there are more than one legal representatives, one in capacity as legal heir and other as an intermeddler, in my opinion, there is nothing in law to warrant the proposition that only the former category of legal representative should be impleaded and not that of the later category. If there are more than one legal representatives, one in capacity as legal heir and other as an intermeddler, in my opinion, there is nothing in law to warrant the proposition that only the former category of legal representative should be impleaded and not that of the later category. Although the High Court of Calcutta in Satya Ranjan s case (supra) appears to have taken a view to the contrary but there is neither any discussion in the judgment on this question nor any other later judgment has been shown taking that view. I, accordingly, express my respectful disagreement with the views expressed by learned Judges of Calcutta High Court in Satya Ranjan s case (supra) and I am of the opinion that names of Defendants 3 and 4 cannot be struck out on this ground. ( 8 ) THE objection of learned counsel to the impleading of Defendant 2 (b) is that the said defendant is not a Class I heir as Major Chadha was not a Hindu and was a Christian at the time of the death and as such was not governed by Hindu Succession Act. In support of the plea that Major Chadha was a Christian reliance is placed on the order dt. 9th Feb. , 1973 passed District Judge, Delhi, dissolving marriage between Major Chadha and Smt. Jogesh Chadha and holding that Mr. Chadha was baptised as a Christian on 23rd Feb. 1972. The argument is that judgment of the District Judge is a judgment in rem and as such it stands established that Major Chadha was a Christian at the time of his death. As already observed, for considering present application the averments made in the plaint are to be taken as correct in its manner and form. The plaintiff has averred that Maj. Chadha being a Sikh was governed by Hindu Succession Act and Defendants 2 (a) and (b) are his two surviving Class I legal heirs. In view of this averment it is not possible to reject the plaint against Defendant 2 (b) or strike out her name. ( 9 ) THE names of the applicants cannot be struck out also in view of the provisions of Section 211, 303 and 304 of Succession Act. In view of this averment it is not possible to reject the plaint against Defendant 2 (b) or strike out her name. ( 9 ) THE names of the applicants cannot be struck out also in view of the provisions of Section 211, 303 and 304 of Succession Act. Section 211 provides that the executor or administrator, as the case may be, of a deceased person in his legal representative for all purposes, and all the property of the deceased person vests in him as such. Under Section 303 a person who intermeddles with the estate of the deceased, or does any other act which belongs to the office of the executor, while there is no rightful executor or administrator in existence, such a person makes himself an executor of hii own wrong. Such a person, under Section 304, is answerable to the rightful executor or administrator, or to any creditor or legale of the deceased, to the extent of the assets which may have come to his hands after deducting payments made to the rightful executor or administrator and payments made in due course of administration. ( 10 ) THERE is no executor. No one has set up a Will. It is also not the case of the parties that an administrator has been appointed to administer the estate of Major Chadha. On a combined reading of the aforesaid provisions and the averments made in the plaint that Defendants 3 and 4 are intermeddling with the estate of Major Chadha,. it cannot be held at this state, that plaint does not disclose any cause of action against the said defendants, on a meaningful-not formal reading of the plaint {see: T. Arivan-dandam v. T. K. Satyapal, AIR 1977 SC 2421 ] It is not possible to dismiss the suit at this stage without trial. On the facts and circumstances of ,the case, to my mind, it cannot be said that the applicants are not necessary parties. ( 11 ) FOR the reasons aforesaid, the application is dismissed leaving the parties to bear their own costs.