Legal Representative


The expression ‘legal representative’ has been defined under section 2(11) the Code of Civil Procedure, 1908 which provides that:

“Legal representative means a person who in law represents the estate of decreased person, and includes any person who intermeddles with the estate of the decreased 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.”

It is clear from the provisions under section 2(ii) that the definition of word “legal representative” is wide and inclusive one and conceives of two distinct categories. Firstly, the heirs or persons, who in law represent the estate of deceased person. However at par with them and in a class by itself is any person who intermediates with the estate of the deceased. Such a person is equally a legal representative. The phrase intermeddler with the estate has come to be a term of art and has been construed as one of the widest amplitude.

This apart, even the dictionary meaning of the word is one of the considerable width. The legal guardian of a minor in possession of his property, who is himself is a party to the suit along with the said minor, would on the later’s death becomes his representative as an intermeddler with the estate of minor.

This term denotes classes of persons on whom the status of representative is fastened by reason of death of a person whose estate they are held to represent.[i]

In Kalu Ram v. Charan Singh[ii]the Rajasthan High Court held that, the decision as to who is the legal representative for the proceedings is necessarily limited for the purpose of carrying on the proceedings and cannot have the effect of conferring of any right of heirship to the estate of the deceased. It is true that all legal heirs are ordinarily also legal representatives but the converse is not true. All legal representatives are not necessarily legal heirs at will.

It is not necessary that the legal representative should be in possession of any property of the deceased. All that is necessary is that he should be a person on whom the estate would devolve. The reviving members of a Hindu Joint Family are not legal representatives, but they are to be impleaded as such in cases where the doctrine of survivorship does not apply.

The estate does not mean the whole of the estate. The intermeddlers represent the estate even though they are in possession of parcels of the estate of the deceased and such a ‘person who in law represents the estate of a deceased person’ must include different legatees under the will.[iii]

Examples of  ‘legal representative’

The definition includes an intermeddler. He is not a trespasser, but assumes representatives capacity in relation to the estate and not in assertion of known as an executor de son tort and a person would not be an intermeddler unless he has intention to represent the estate.[iv] He is recognised as legal representative only to award relief against the estate in his hands. A person who purchased property under a collusive transaction during the life-time of the deceased would not be an intermeddler and cannot be added as legal representative.

The persons or class of persons indicated by the expression “legal representative” would depend on the context. Subject to that qualification it includes properly appointed executors and administrators, heirs-at-law taking by succession or survivorship, reversioners where the action has been brought by or against the widow representing her husband’s estate, a universal legatee and in some cases persons in de facto possession of the entire estate of the deceased; but it does not include trespassers, creditors, who have received payment of the debts due from the estate of the deceased, persons dealing in the ordinary course of business with goods of the deceased received from another, persons who intervene merely for the purposes of preserving the goods of the deceased or providing for his funeral or for immediate necessities of his family, legatees of a part of the estate and those taking possession of the property of the deceased from the legatees of a part of the estate.[v]

Decree against wrong Legal Representative

A true legal representative will be bound by a decree passed against the wrong legal representative if the following conditions are fulfilled:

(i) the plaintiff decree-holder has acted bona fide;

(ii) the decree obtained is free from fraud and collusion;

(iii) the person wrongly impleaded was impleaded in a representative capacity;

(iv) the decree or order was passed against him as representing the estate of deceased;

(v) the plaintiff was ignorant of the facts which operates to displace the title of the supposed legal representative; and

(vi) the person having the title did not intervene during the pendency of the suit.

Universal legatee under a will executed by the deceased is his legal representative[vi]. A mere trespasser, however, cannot be said to be the legal representative of the decreased as he holds adversely to him and does not intermiddle with the intention of representing the estate[vii]. A person against whom the estate of the deceased devolves would be his legal representative, even if he is not in actual possession of the estate.[viii]

Custodian of Branches of Banco National v. Nalini Naique[ix]

Facts of the case:- The Appellant Bank instituted a suit to recover Rs. 63,315 from V. Naique advanced as loan. Repeated adjournment to another date, the case was taken for hearing on 4th November, 1970, but on that date the defendant’s pleader informed the court of defendant’s death at Margaon. The appellant bank subsequently obtained death certificate from Civil Registration Office stating V. Naique as the legal representative of deceased original defendant. Another application for condonation of delay supported by affidavit was made for setting aside abatement of suit. Nalini Naique defendant’s widow, contested the application on the ground that news of V. Naique was made public in the local newspaper and the suit had abated on the expiry of 30/60 days of the death of original defendant as no application for abatement has been filed in time. Appellant Bank also added the names of four sons, and minor daughters of deceased. On the ground that appellant had no knowledge about the sons and daughters of the deceased. Nalini Naique vehemently asserted that application of substitution was not maintainable as it was filed beyond time and she was not the legal heir of the declared and other legal heirs were not brought on record within time and hence application was to be rejected.

The Trial Court came to conclusion that the appellant bank came to know about V. Naique’s death on 14th November, 1970 from his pleader in the Court and within 4 days thereof application was made under Order XXII, rule 4 which was not barred by time (including substitution was within time).

In revision application by Nalini Naique the judicial commissioner declared the suit to have abated. Hence the appellant bank has preferred appeal after obtaining special leave.

Decision:- The Supreme Court dealing with appeal observed:

“Legal representative” as defined in Code of Civil Procedure means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of deceased and where the 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 definition is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not be heir; competent to inherit the property of the deceased but should represent the estate of deceased person. It includes heirs as well as person who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by expression “legal representative”. If there are many heirs, those in possession bona fide, without there being any fraud or collusion, are also entitled to represent the estate of the deceased.”

In the present case, Nalini Naique represented half share in the estate left by V. Naique and remaining half was shared by his sons and daughters, who were subsequently brought on record. Once the name of Nalini Bai is brought on record within time and the application for setting aside abatement was allowed by trial court, the suit could proceed on merits and subsequent bringing of legal representative could not render the suit defective.

In the result, the appeal is allowed and the order of judicial commissioner is set aside. Trial court is directed to decide the suit expeditiously.

Mithailal Daesanagar Singh v. A. Devram Kini[x]

Facts of the case:- Bharat Singh Mithailal and Nirmala (plaintiffs) filed a suit for specific performance of agreement to sell against defendants. Plaintiff prayed for interim injunction which was granted by single Judge of the High Court who was trying the suit. On 5th April, 1997, Bharat Singh, one of plaintiff expired. The defendants filed appeal before Division Bench against single Judge order. On 17th June, 2000, the date of hearing, the counsel of plaintiff-respondent wrote a letter to two surviving plaintiffs informing about the death of third plaintiff and need for bringing the legal representatives of the deceased on record. The legal representative of deceased took out chamber summons for being brought on record in the suit.

The defendant objected to prayer for unpleadment as it was barred by time and that suit had abated. Since the cause of action arising to three plaintiffs was only one, the death of one plaintiff had resulted in the suit having abated in its entirety and, therefore, the prayer of legal representative was not maintainable. The Division Bench set aside the order of the learned single judge holding that suit stands dismissed as having abated.

Decision:- The aggrieved plaintiffs have filed appeal by special leave to Supreme Court. The Supreme Court allowed the appeal and set aside the judgment of Division Bench. Restoring the order (i.e., 23rd March, 2001) of learned single Judge, Supreme Court made following observations;

“The abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly, on the other hand, the prayer for setting aside abatement and the dismissal consequent upon abatement, have to be considered liberally. A simple prayer for bringing the legal representative on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside abatement. So also prayer by one of the plaintiffs can be construed as prayer for setting aside the abatement of suit in its entirety. Once the suit has abated as a matter of law, yet legal representative proposing to be brought on record or any other applicant proposing to bring the legal representatives of deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. The courts have to adopt a justice oriented approach that ordinarily a litigant ought not be denied an opportunity of having his suit determined on merits unless he has, by gross negligence, deliberate in action disentitled himself from seeking the indulgence of the court”.

In the present case the trial Judge found sufficient cause for condonation of delay in moving application and such finding having been reasonably arrived and based on material evidence, was not open to interference by the Division Bench.

Shahzadabi v. Halimbai (since dead) by her LRs.[xi], AIR 2004 SC 3942

Facts of the case:-The suit was constituted for recovery of possession of seven rooms. The rooms were in possession of different defendants. The defendants alleged that they were in possession of seven rooms with consent of Ehsan Ullah. In the suit, the defendant further consented that they had perfected their title in respect of each of seven rooms by adverse title. The most clinching was that defendant 4 died during pendency of the suit. Taking into account above circumstance, the trial court held that suit against defendant 4 alone stood dismissed as abated. The trial court decreed the suit of plaintiff against defendants 1 to 3.

In an appeal by defendants, the Karnataka High Court restored the judgment and decree of Trial Court decreeing the original suit filed by the plaintiffs for declaration of title to property (seven rooms).

Issue:–The present appeal to Supreme Court made by defendants arises to settle–whether the suit for possession filed by respondent-plaintiffs stood abated in entirety as held by trial court?

Decision:–The Supreme Court holding the trial court right, explained the law as below:

Order XXII, rule 4 lays down that within the time limited by law, no application is made to implead of legal representatives of a deceased defendant the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. What was the interest of deceased defendant in the case, whether he represented the entire interest or only a specific part is a fact that would depend on the circumstances of each case. If the interests of the co-defendants are separate, as in case of co-owners, the suit will abate only as regards the particular interest of the deceased party. Order XXII, rule 4(3) read with Order XXII, rule 11 of the Code of Civil Procedure, 1908, where no application is made to implead the legal representative of the deceased respondent, the appeal shall abate as against the deceased respondent. That, so far as the statute is concerned, the appeal abates only qua the deceased respondent, but the question whether the partial abatement leads to an abatement of the appeal in entirety depends upon general principles. If the case is of such a nature that absence of the legal representative of deceased respondent prevents the Court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in the respect of the interest of the respondent who has died. The court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees, the court has no alternative but to dismiss the appeal as a whole. A distinction must be made between the cases in which there is specification of shares or interests, and those in which there is no specification of interests. That in cases, where there is specification of share or interest, the appeal cannot abate as whole. In such cases appeal abates only in respect of the interest of the deceased and not the whole.

[i]Bisheswar Dayal v. Bajarang Bahadur Singh, AIR 1929 Oudh 353.

[ii]Kalu Ram v. Charan Singh AIR 1994 Raj 31.

[iii]Andhra Bank Ltd. v. Srinivasan AIR 1962 SC 232.

[iv]Ramprasad v. Jamnaprasad, AIR 1962 MB 143.

[v]1950 MWN 311.

[vi]Lingareddi Sreenivasulu Reddi v. D. Muniratnam Reddi AIR 1978 AP 173.

[vii]Nagendranath v. Hyat AIR 1933 Cal 865

[viii]Javarimal v. Mangilal, 1961 Raj LW 132.

[ix]Custodian of Branches of Banco National v. Nalini NaiqueAIR 1989 SC 1589.

[x] Mithailal Daesanagar Singh v. A. Devram Kini, (2003) 10 SCC 699.

[xi] Shahzadabi v. Halimbai (since dead) by her LRs., AIR 2004 SC 3942.

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