The Andhra Bank Ltd. Vs. R. Srinivasan
& Ors  INSC 260 (31 August 1961)
CITATION: 1962 AIR 232 1962 SCR (3) 391
CITATOR INFO :
1979 SC1915 (6)
Legal Representative--Not resident within
court's jurisdiction and not appearing--judgment, if binding--Private
International Law--Applicability--Legatees under will--If legal representatives
of deceased defendant--`Estate', if means whole estate--Code of Civil Procedure,
1908 (Act V of 1908), s.2 (11).
During the pendency of two connected suits
for recovery of money filed by the appellant in the Hyderabad Court one of the
respondents died and his sons, daughters and grand daughters were joined in the
suits as his legal representatives as holding different pieces of his property
under a deed of settlement and a registered will executed by him. The suits
were decreed by the said court but as the decretal money could not be realised
in full the appellant filed the present suit for the balance in the Madras High
Court on the basis of the judgments of the Hyderabad Court At the time of
filing, the previous suits were competent and within the jurisdiction of the
Hyderabad Court as the deceased respondent was a resident of Hyderabad but
after his death at the relevant time his legal representatives were not
residents of Hyderabad. The respondents contended inter alia that they did not
submit to the jurisdiction of the Hyderabad Court as it had no jurisdiction over
them and the foreign judgments of that Court were not binding on them. the high
Court held that under the rule of private international law all personal
actions must be filed in the courts of the country where the defendant resided
and as the legal representatives were non-residents of Hyderabad the decrees
passed against them were invalid.
Held, that the rule of private international
law could not be applied to a case where the suit as initially filed was
competent and the court before which it was filed was competent to 392 try-it.
If during the pendency of the suit the defendant died and his nonresident legal
representatives were brought on the record to defend the suit on his behalf to
the extent of the assets of the deceased held by them, the jurisdiction of the
court continued unaffected and the competence of the suit as originally filed
Sardar Gurdyal Singh v. The Raja of
Faridkote, (1894) L. R. 21 I. A. 171, Travers v. Helley  P. 246, Dunne v.
Saban  P. 178, Mountbatten v. Mountbatten,  P. 43, Dulles v.
Vidler,  1 Ch. 842, Schibsby v. Westinholz, (1 870) L.R. 6 Q. B. 155 and
Emanuel v. Symon, [ 1908] 1 K.B. 302, referred to.
Kanchamalai Pather v. Ry. Shahaji Rajah
Saheb, (1936) I.L.R. 39 Mad. 461 and Erara v Sidramappa Pasare (1897) I.L.R. 21
Bom. 424, not applicable.
Under s. 2 (1 1) of the Code of Civil
Procedure the clause (a person who in law represents the estate of a deceased
person, must include legatees under wills and that ,Estate" cannot necessarily
mean the whole of the estate.
Natesa Sastrigal v. Alamelu Achi, (1 950) 1
M. L. J. 476, disapproved.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 508 of 1958.
Appeal from the judgment and decree dated
July 27, 1951, of the Madras High Court in A. S. Nos. 172 and 194 of 1947.
A. Ranganatham Chetty, C. V. Narasimharao, A.
V. Rangam and T. Satyanarayana, for the appellant.
A.V. Viswanatha Sastri and S.
Venkattakrishnan, for respondents Nos. 1 to 3.
R.Ganapathy Iyer and T. K. Sundara Raman, for
respondents Nos. 5 to 9.
R. Ganapathy Iyer, Thiagarajan and R. O.
Gopalakrishnan for respondents Nos. 11 and 12.
1961. August 31. The Judgment of the Court
was delivered by GAJENDRAGADKAR, J.-This appeal has been brought to this Court
with a certificate issued by the Madras High Court under Art. 133(1)(a) of the
Constitution and it arises out, of a suit (O.S.No. 83 of 1945) filed by the
appellant the Andhra Bank 393 Limited against the twelve respondents. This suit
was based on two foreign judgments. Exs. P. 1 and P.3, which had been obtained
by the appellant against the said respondents in Hyderabad. Respondent 1 is
the, son of Raja Bahadur Krishnamachari (hereafter called Raja Bahadur) who
died in March, 1943. Respondent 1 and his father were residents of Hyderabad.
Raja Bahadur was practising as an advocate in Hyderabad and subsequently he was
appointed the AdvocateGeneral. In September, 1935, respondent 1 was indebted to
the appellant in the sum of Rs. 14.876-3-7 in respect of an overdraft account.
In May, 1938, he became indebted to theappellant in the sum of Rs. 8,217-11-6
in respect of his borrowings on a pledge of sanitary-ware goods. Raja Bahadur
had executed a letter of guarantee (Ex. P-18) in January, 1932 whereby he
guaranteed the repayment of monies borrowed by respondent 1 up to the limit of
Rs. 20,000. As the amounts due, from respondent 1 remained unpaid the appellant
had to institute two suits in the Hyderabad High Court for their recovery.
These suits were numbered 47 and 53 of Fazli 1353. After they were filed in the
said High Court they were transferred to the City Civil Court and renumbered as
Suits Nos. 62 and 61 of Fazli 1353. Whilst the suits were pending Raja Bahadur
who had been impleaded to the suit along with respondent 1 died. Thereupon the
appellant joined the present respondents 2 to 12 in those two suits as legal
representatives of Raja Bahadur on the ground that they were in possession of
different pieces of his properties under a settlement deed of 1940 and a
registered will executed by him on August 28, 1942 (Ex. P. 7). In both the
suits the appellant obtained decrees with costs on October, 5, 1944. The said
decrees directed respondent 1 to pay the whole of the amount claimed by the
appellant against him and respondents 2 to 12 to pay Rs. 20,000 which was the
limit of guarantee I executed by 394 Raja Bahadur. All the respondents were
directed to pay interest at 3 per cent, on the amount due against them.
Whilst the suits were pending the goods
pledged in Suit No. 62 were auctioned and the sale proceeds realised which
amounted to Rs. 4,232-1-7 were given credit for whilst the Court ,Passed the
decrees in the said suits. According to the appellant an amount of Rs.
27,923-6-5 was still due on the said decrees and so in the present suit the
appellant claimed from respondent 1 the .whole of the said amount and from
respondents 2 to 12 Rs. 20,000 with interest and costs.
Respondent 2 is the son of Raja Bahadur and
respondents 6 to 9 are his minor sons. Respondents 3, 4 and 5 are the sons of
respondent 1. Respondent 10 is the daughter of Raja Bahadur while respondents
11 and 1 2 are his granddaughters through his two daughters. Respondent 2 for
himself and as guardian of his minor sons resisted the appellant's claim and
contended that the Hyderabad Courts had no jurisdiction over them and therefore
the decrees passed by the City Civil Court was without jurisdiction. They also
alleged that they had not been served with notice of suit and had not submitted
to the jurisdiction of the City Civil Court Respondent 1 did not resist the
suit but his sons did. They alleged that they were not the legal
representatives of Raja Bihadur and had been improperly added as parties to the
Hyderabad suit. They joined respondents 2 and 6 to 9 in their contention that
the Hyderabad Court was not a Court of competent jurisdiction and they Pleaded
that the foreign judgments had not been based on the merits of the case.
Respondents 10 to 12 filed similar pleas.
On these pleadings the learned trial judge
framed five principal issues. He held that the City Civil Court of Hyderabad
had jurisdiction to try the suits and that the contesting respondents were
bound by the decrees passed in the said suits. He 395 also found that the
respondents who had been impleaded in the suits as legal representatives of the
deceased Raja Bahadur were his legal representatives in law and had been
properly joined. The other issues framed by the trial court in respect of the
other contentions raised by the respondents were' also found against them. It
is, however, unnecessary to refer to those issues and the findings thereon. In
the result a decree was passed in favour of the appellant for the amounts
respectively claimed by it against respondent 1 and against the assets of Raja
Bahadur in the hands of respondents 2 to 12 with interest at 3 per cent.
per annum from the date of the plaint till
the date of realisation. The respondents were also directed to pay the costs of
Against this decree two companion appeals
were filed in the High Court at Madras. Civil Appeal No. 172 of 1947 was
preferred by respondents 3 to 5, whereas Civil Appeal No. 194 of 1947 was
preferred by respondent 2 and his sons respondents 6 to 9. It was urged by the
two sets of respondents in their two appeals that the trial court was in error
in holding that the Hyderabad Court was a Court of competent jurisdiction and
that the decrees passed by it were valid. It was also urged that the decrees in
question were contrary to natural justice and that respondents 2 to 12 were in
fact not the legal representatives of Raja Bahadur and so the Hyderabad Court
acted illegally in passing the said decrees against them. The High Court has
upheld the first contention raised by the respondents and has held that the
City Civil Court of Hyderabad which passed the decrees was not competent to try
the suits and so the decrees cannot be enforced by a suit under s. 13 (a) of
the Code of Civil Procedure. According to the High Court the appellant had
failed to prove that any of the contesting respondents had submitted to the
jurisdiction of the Hyderabad Court. Since the High Court came to the
conclusion that the decrees were invalid it did not think it 396 necessary to
consider the two other arguments urged by the respondents. Consistently with
its findings that the decrees were invalid and had been passed by the Hyderabad
Court without jurisdiction the High Court allowed both the appeals preferred
before it by the two sets of respondents and has dismissed the appellant's
suit. It is against this decision that the appellant has come to this Court
with a certificate issued by the High Court.
The first question which falls to be
considered in the present appeal is whether the City Civil Court at Hyderabad
was a Court of competent jurisdiction when it pronounced the judgments in the
two suits filed by the appellant in that Court. Under s. 13 of the Code a
foreign judgment shall be conclusive as to any matter thereby directly
adjudicated upon between the same parties except where it has not been
pronounced by a Court of competent jurisdiction. It is common ground that when
the suits were filed in Hyderabad Raja Bahadur and respondent 1 were residents
of Hyderabad and the Hyderabad Court was therefore competent to try the suits
at the time when they were filed. The actions in question were actions in
personam but they were within the jurisdiction of the Hyderabad Court at their
This position is not disputed. It is also not
seriously disputed that respondents 2 to 12 who were added as legal
representatives of the deceased Raja Bahadur did not reside in Hyderabad at the
relevant time and were foreigners for the purpose of jurisdiction. The High
Court has held that under the well established rule of private international
law all personal actions must be filed in the Courts of the country where the
defendant resides, and since respondents 2 to 12 had not submitted to the
jurisdiction of the Hyderabad Court. The Hyderabad Court had no jurisdiction to
try the claim against them.
397 The rule of private international law on
which the High Court has relied is no doubt well settled. It has been thus
enunciated by Dicey in rule 26 : "When the defendant in an action in
personam is at the time of the service of the writ not in England the Court has
no jurisdiction to entertain the action" (1). According to Cheshire's
"Private International Law" this rule is based on the principle of
effectiveness. "Jurisdiction", observes Cheshire, 'depends upon physical
power, and since the right to exercise power, or, what is the same thing in the
present connection, the power of issuing process, is exercisable only against
persons who are within the territory of the Sovereign whom the Court
represents, the rule at common law has always been that jurisdiction is
confined to persons who are, within reach of the process of the Court at the
time of service of the writ. A Court cannot extend its process and so exert
sovereign power beyond its own territorial limits"(2). This limitation on
the competence of Courts to try personal actions against non-resident
foreigners has been emphatically laid down by the Privy Council in the case of
Sirdar Gurdyal Singh v. The Rajah of Faridkote(3). "In a personal
action", observed the Earl of Selborne, speaking for the Board, "to
which none of these causes of jurisdiction previously discussed apply, a decree
pronounced in absentee by a foreign Court to the jurisdiction of which the
defendant has not in any way submitted himself if; by international law an absolute
nullity" (P.185). This position is not and cannot be disputed ; but the
question which still remains is whether the High Court was right in applying
this rule to the appellant's case. As we have already seen, at their inception
the two suits brought by the appellant in the Hyderabad Court were competent.
They were brought against (1) Dicey's "Conflict of Laws." 7th Ed., p.
(2) Cheshire's "Private International
Law", 5th Ed., P. 107.
(3) (1894) L. R. 21 I. A. 171.
398 residents over whom the Hyderabad Courts
had jurisdiction, and so there can be no manner of doubt that as they were
filed they were perfectly competent 'and filed before a Court of competent
jurisdiction. If after the death of Raja Bahadur his legal representatives who
were non-resident foreigners were brought on the record in the said suits, does
the rule of private international law in questions invalidate the subsequent
continuance of the said suits in the Court before which they bad been validly
instituted at the outset ? The High Court has answered this question in favour
of the respondents and the appellant contends that the High Court was wrong in
giving the said answer.
In this connection it has been urged before
us by Mr. Ranganathan Chetty, on behalf of the appellant, that in considering
the effect of the rule of private international law on which the High Court has
relied it may be 'relevant to remember that the recent judicial decisions
disclose a healthily tendency to relex the rigour of the said rule. In fact Mr.
Chetty has invited our attention to Exception 8 which Dicey has stated as one
of the exceptions to the rule.
Under this Exception, "whenever any
person, out of England, is a necessary or a proper party to an action properly
brought against some other person duly served with a writ in England, the Court
may assume jurisdiction to entertain an action against such first mentioned
person as a co-defendant in the action" (Pp. 201,202). The argument is
that this Exception shows that where a. personal action is properly brought
against one person in an English Court and it is found that a nonresident
foreigner is a proper or a necessary party to the action in order to sustain
the claim made against the resident in England, it would be open to join the
non-resident foreigner as a proper or necessary party notwithstanding the fact
that the said foreigner is 399 non-resident and not subject to the jurisdiction
of the Court. This Exception is pressed into service to show that the rule in
question is not rigorously enforced in every case.
In support of this argument Mr. Chetty has
also invited our attention to the decision of the Probate Court in Travers v.
Holley (1). In that case a husband and wife
shortly after their marriage in the United Kingdom in 1937 went out. to Sydney
in New South Wales and took with them all their belongings. The husband then
thought that the Commonwealth offered him better prospects. Having settled down
in Sydney the husband invested money in a business which, however, collapsed on
the outbreak of war. For a time thereafter he worked, on a sheep farm in
Northern New South Wales leaving his wife at Sydney where a child had been born
Later he secured a Commission in the
Australian forces and was in due course transferred to the British forces. In
August, 1943 the wife filed a petition for divorce in the Supreme Court of New
South Wales on the allegation that she had been deserted by her husband since
August, 1940. The petition succeeded and the wife was granted a decree which
was made absolute in November 30, 1944. The husband was served with a notice of
the petition but he did not defend.
In due course both the parties remarried. The
husband's remarriage, however, proved unsuccessful and so in 1952 he obtained a
decree for divorce on the ground that the Australian decree was invalid because
at the time it was granted neither husband nor wife was domiciled in New South
Wales and the wife by remarrying had been guilty of adultery. Against this
decree the wife appealed, and her appeal was allowed. In discussing the
validity of the decree passed by the Supreme Court of Now South Wales the Court
held that "the Courts of New South Wales by s. 16(a) of the New South
Wales Matrimonial (1)  P. 246.
400 Causes Act, No. 14 of 1899, and the
English Courts by s. 13 of the Matrimonial Causes Act, 1937 claimed the same
jurisdiction, and it would be contrary to principle and inconsistent with
comity if the Courts of this Country refused to recognise a jurisdiction which
mutates mutandis they claimed for themselves ; and that even if, while in
desertion, the husband had reverted to his English domicile of origin the New
South Wales Court would not be deprived of jurisdiction". In other words,
on the ground of the rule of reciprocity the validity of the decree passed by
the Court of New South Wales was not allowed to be effectively challenged by
the husband in that case, on the ground that the relevant statutory provisions
of the matrimonial law were substantially the same. We ought, however to add
that on two subsequent occasions the principle enunciated in the case of
Travers (1), it has been said, should be confined to the special facts and
features of that case. In Dunne v. Saban (2) it is stated that "'the
observations in Travers v. Holley (1) as to recognition in certain
circumstances of foreign decrees founded upon a jurisdiction similar to hours
were directed to a case where the extraordinary jurisdiction of the foreign
Court corresponded almost exactly to the extraordinary jurisdiction exercisable
by this Court" ; and in Mountbatten v. Mountbatten (3) Davies, J. has
raised a whisper of protest against making any further extension of the
principle (p.81). Mr. Chetty, however, contends that the principle of
reciprocity is gradually finding more and more, recognition in modern
decisions, and on the strength of. the said decisions it should be held that
the relevant statutory provisions in Hyderabad and India being exactly the same
the rule of private international law on which the High Court relied should not
be rigorously applied to the present case (1)  P. 246. (2)  P. 178.
(3)  P.43.
401 In support of his argument Mr. Chetty has
also invited our attention to the obiter observations made by Denning, L. J.
in In Re Dulles Settlement (No.2) Dulles v.
Denning, L. J. observed that the relevant
rules prevailing in the Courts in the Isle of Man corresponded with the English
rules for service out of the jurisdiction contained in 0. 11 and added "I
do not doubt that our Courts would' recognise a judgment properly obtained in
the Manx Courts for a tort :committed there, whether the defendant voluntarily
submitted to the jurisdiction or not; just as we would expect the Manx, Courts
in a converse case to recognise a judgment obtained in our Courts against a
resident in the Isle of Man, on his being properly served out of our:
jurisdiction for a tort committed here". Mr. Chetty points out that this
observation again is based on the rule of reciprocity and it illustrates the
modern tendency to relax the rigorous application of the rule of private
international law in,' question.
On the other hand it may be pertinent to
point out that the present editor of Dicey's "Conflict of laws" has
commented on the observations of Denning, L. J. by observing that "this
suggested application of the principle of reciprocity is of a more sweeping
character than its application to foreign divorces, because in the first place
it extends to enforcement and not merely to recognition, and in the second place
it would, if logically carried out mean that English Courts would enforce
foreign judgments based on any of the very numerous jurisdictional grounds
specified in Order 1 1, rule 1 of the Rules of the Supreme Court". The
editor further observes that "it may be doubted whether English Courts
would be prepared to carry the principle of reciprocity as far as this, for the
suggestion under discussion was made by a single Lord Justice in an obiter
dictum, and moreover it is directly at variance with a weighty decision of the
Court of Queen's (1)  Ch. 842.
402 Bench" (Schibsby v. Westenholz (1).
Therefore we do not think that this general argument that the rigour of the
rule should be relaxed can be accepted.
However, even if the rule has to be applied
the question still remains whether it has to be applied at the inception or the
commencement of the suit as well as at a later stage when on the death of one
of the defendants his legal representatives are sought to be brought on the
record. In ealing with this question it would be relevant to recall the five
cases enunciated by Buckley, L. J. in Emmanual Ors. v. Symon(2) in which the
Courts of England would enforce a foreign judgment. "In actions in
personam", observed Buckley, L. J., 'It here are five cases in which the
Courts of this country will enforce a foreign judgment : (1) where the
defendant is a subject of the foreign country in which the judgment has been
obtained ; (2) where he was resident in the foreign country when the action
began ; (3) where the defendant in the rum in character of plaintiff has
selected the for which be is afterwards sued ; (4) where he has Voluntarily
appeared ; and (5) where he has contracted to submit himself to the forum in
which the judgment was obtained". It would be noticed that all these five
cases indicate that the material time when the test of the rule of private
international law has to be applied is the time at which the suit is instituted
In other words these five cases do not seem to contemplate that the rule can be
invoked in regard to a suit which had been properly instituted merely because
on the death of one of the defendants his legal representatives who have been
brought on the record are nonresident foreigners. The procedural action taken
in such a suit to bring the legal representatives of the deceased defendant on
the record does not seem to attract the application of the rule. If that be so
(1) (1870) L. R. 6 Q. R. 155 (Dicey, p.28). (2)  1 K. B. 302.
403 it is at the commencement or the initiation
of the suit that the rule has to be applied, and if that is so there is no
doubt that the two suits in the City Civil Court at Hyderabad were competent
when they were brought and the City Civil Court at Hyderabad which tried' them
had jurisdiction to try them.
In form the claim made by the appellant
against respondents 2 to 12 in the Hyderabad Court was in the nature of a
personal claim ; but in substance the appellant would be entitled to execute
its decree only against the assets of the deceased Raja Bahadur in the hands of
respondents 2 to
12. That is the true legal position under s.
52 of the Code of Civil Procedure in India, and to the same effect is the
corresponding provision of the Code of Hyderabad, Besides, when the leg al
representatives are brought on the record the procedural law both in India and
Hyderabad requires that they would be entitled to defend the action only on
such grounds as the deceased Raja Bahadur could have taken. In other words, the
defence which the legal representatives can take must in the words of 0. 22,
r.4, sub-r. (2) be appropriate to their character as legal representatives of
the deceased defendant. No. plea which the deceased defendant could not have
taken can be taken by the legal representatives. That emphatically brings out
the character of the contest between the legal representatives and the
appellant. The appellant in substance is proceeding with, its claim originally
made against the deceased Raja Bahadur and it is that claim which respondents 2
to 12 can defend in a manner appropriate to their character as legal
representatives. If the suits originally brought by the appellant in Hyderabad
were competent how could it be said that they ceased to be competent merely
because one of the defendants died ? The Hyderabad Court had jurisdiction to
try the suits when they were filed and there is nothing 404 in the rule of
private international law to suggest that the said jurisdiction automatically
came to an end as soon as one of the defendants 'died leaving as his legal
representatives persons who were nonresident foreigners.
In considering this aspect of the matter we
may refer to the statement in Salmond's "Jurisprudence" that
"inheritance is in some sort a legal and fictitious continuation of the
personality of the dead man, for the representative is in some sort identified
by the law with him whom be represents.
The rights, which the dead man can no longer
own or exercise in propria persona, and the obligations which he can no longer
in propria persona fulfill, he owns, exercises, and fulfils in the person of a
living substitute. To this extent, and in this fashion, it may be said that the
legal personality of a man survives his natural personality, until, his
obligations being duly performed, and his property duly disposed of, his
representation among the living is no longer called for" (1). These
observations support the appellant's contention that essentially and in
substance and for the purpose of jurisdiction the suits brought by the
appellant against Raja Bahadur did not alter their character even after his
death and continued to be, suits substantially against his estate as
represented by his legal representatives. If that be the true legal position
there would be no scope for urging that the Court which was competent to try,
the suits as originally filed ceased to be competent to try them because the
legal representatives of the deceased Raja Bahadur were non-resident
foreigners. 'To hold otherwise would lead to this result that the suits against
Raja Bahadur would abate on his 'death though the cause of Action survives and
the decree passed against his assets in the hands of his legal representatives
can be effectively executed.
The High Court seems to have thought that (1)
Salmond On 'Jurisprudence', 11th Ed., p. 482.
405 the Hyderabad Court"s jurisdiction
terminated on the death of Raja Bahadur so far as the appellant's claim against
him was concerned "land the same cannot avail against his legal
representatvies", and it has observed that there is judicial authority in
I support of this conclusion. The decision on.
which the High Court has relied in support of
its conclusion is the judgment' of the Full Bench of the Madras High Court in
Kanchamalai Pathar v. Ry. Shahaji Rajah Saheb & 5 Ors.
(1). It is necessary to refer to the relevant
facts in that case in order to appreciate the point which was decided by the
Full Bench. In execution of a money decree certain immovable property belonging
to the judgment-debtor had been attached, A proclamation of sale was then
settled and an order passed for sale. At that stage the judgment-debtor died.
The decree-holder and his vakil were aware of the death of the judgment-debtor,
but even so no application was made under s. 50 of the Code of Civil Procedure
for leave to execute the decree ,,against the legal representatives of the
deceased Judgment-debtor, and so no notice -",as served as required by O.
XXI, r. 22, sub-r.(1). The sale was then held and at the sale the property was
purchased by a stranger. A question then arose as to whether the sale was void
or voidable and the Full Bench held that it was void.
Before the Full Bench it was contended that
s. 50 bad reference only to the stage when it became necessary to apply for
execution against the legal representatives ; it did not apply to a case where
the judgment-debtor himself was alive when the attachment was made. The
argument was that once the attachment was made the property attached was
custodia legis and the liability then was that of. the property and not that of
the person. That is how, failure to bring the legal representatives on the
record UDder s. 50 or to apply for and obtain notice under 0. XXI, r. 22, subr.
(1) (1) (1936) I. L. R. 59 Mad. 461.
406 was attempted to be explained. This
contention was negatived. It is in the context of this contention and while
rejecting it that Varadachari, J., observed that on the death of a person
proceedings for recovery of a debt due by him or taken only against his estate
and not against his legal representative do not seem to be justified either by
legal history or by the language of the Procedure Code.
Similarly, in the same context and while
rejecting the said argument Venkataramana Rao, J., observed that as soon as a
man dies he disappears from the record and there is no party over whom the
Court can exercise jurisdiction and it loses jurisdiction in one of its
essentials. Then the learned judge has added that no, decree can be passed
without bringing his representative on the record. After he is brought he becomes
the defendant. Similarly after the decree he becomes judgment-debtor. It would
be noticed that these observations on which the High Court has relied must be
read in the context of the facts before the Court in that case, and their
effect must be appreciated in the light of the argument which was rejected. The
Full Bench was really concerned to decide whether in regard to property which
had been attached in execution of a decree proceedings under s. 50 and under O.
XXI, r. 22, sub-r. (1) have to be taken or not, and it has held that when a
judgment-debtor dies no action can be taken against his estate unless his legal
representative is brought on the record and orders are then passed against the
assets of the deceased in his hands.
In our opinion, therefore, the observations
made in that case cannot pressed into service when we are dealing with a very
The same comment, with respect, falls to be
made with regard to similar observations made by Ranade, J. in Erava & Anr.
v. Sidramapa Pasare(1). In that case a
mortgagee H had obtained (1) (1897) I.L.R. 21 Bom. 424.
407 a decree against the mortgagor N but
before the decree could be executed N died leaving behind him as his heirs his
daughters. Subsequently the decree holder applied for execution against the
deceased judgment-debtor by his heir and nephew R. R appeared and pleaded that
he was not the heir and that the daughters of N were his heirs. Even so the
daughters were not impleaded to the execution proceedings nor were notices served
on them under s. 248 of the Code (Act X of 1877). Ultimately the property was
sold and was bought by the decree holder subject to his mortgage.
In due course the sale was confirmed and the
sale certificate issued. The daughters of N then sued the mortgagee for
redemption and were met with a plea that since the defendant bad purchased the
property at court sale he was entitled to it free from the claim of the
plaintiffs to redeem. This defence was rejected by the High Court. Candy and
Jardine, JJ. based their conclusion on the ground that even if the auction
purchaser got an absolute title to the property the present suit had been
brought within twelve years of the sale and did challenge it and so the
plaintiffs are entitled to redeem. Ranade, J., however, based himself on the
ground that the sale proceedings were null and invalid and without jurisdiction
because the true legal representatives of N had not been brought on the record.
It is in this connection that he rejected the argument of the auction purchaser
that the auction sale affected the estate of the deceased N only and that it
was a mere informality that the true heirs' names were not joined in the record
in execution proceedings. In other words, according to Ranade, J., execution
proceedings could not properly and validly be continued after the death of N
unless his true heirs and legal representatives were brought on the record. It
is thus clear that the problem posed before the High Court in that case was
very much different from the problem with which we are concerned in the present
appeal, and so the observations 408 made in that case cannot be of any
assistance to the respondents in support of their contention that the Hyderabad
Court ceased to have jurisdiction over the suit because on the death of Raja
Bahadur his legal representatives were non-resident foreigners.
Going back to the narrow point which calls
for our decision in the present appeal we are inclined to hold that there is no
scope for the application of the rule of private international law to a case
where the suit as initially filed was competent and the Court before which it
was filed had jurisdiction to try it. In such a case if one of the defendants
dies and his legal representatives happen to be non-resident foreigners the procedural
step taken to bring them on the record is intended to enable them to defend the
suit in their character as legal representatives and on behalf of the deceased
defendant and so the jurisdiction of the Court continues unaffected and the
competence of the suit as originally filed remains unimpaired. In form it is a
personal action against the legal representatives but in substance it is an
action continued against them as legal representatives in which the extent of
their liability is ultimately decided by the extent of the assets of the
deceased as held by them. Therefore we must hold that the High Court was in
error in reversing the finding of the trial court on the question about the
competence of the Hyderabad Court to try the two suits filed before it. In this
view it is unnecessary to consider whether some of the legal representatives
hadsubmitted to the jurisdiction of the Hyderabad Court or not.
That takes us to the other argument raised by
Mr. Viswanatha Sastri on behalf of the respondents. He contends that
respondents 2 to 12 who are in possession of different pieces of property
belonging to the deceased Raja Bahadur under the will executed by' him cannot
be 'said to be his 409 legal representative under s. 2(11) of the Code. Section
2(1) provides, inter alia that a legal representative means a person who in law
represents the estate of a deceased person and includes any person who
intermeddles with the estate of the deceased. It is well known that the
expression "legal representative" had not been define in the code of
1882 and that led to a difference of judicial opinion as to its denotation. In
Dinamoni Chaudhurani v. Elahandut Khan (1) the Calcutta High Court had occasion
to consider these conflicting decisions. It was urged before the High Court
that the term "legal representative" used in s.234 of the said Code
had to be construed strictly and could not include anybody except the heir,
executor or the administrator of the deceased. The argument was that the term
had been taken from the English law and its scope could not be extended. This
argument was rejected by Brett and Woodroffe, JJ. Woodroffe, J. examined the
several judicial decisions bearing on the point and observed "from this
review of the authorities it will appear that judicial decisions have extended
the sense of the term legal representative" beyond that of its ordinarily
meaning of "administrator, executor and heir" and though such
extension has been attended with doubt and has in some cases been the subject
of conflicting decision it appears to me to be too late now to endeavour,
however convenient it might be to secure for the term that which is perhaps its
strict and legitimate sense. I agree therefore, in holding that the term is not
limited to administrators, executors, and heirs and am of opinion that it must
now be held to include any person who in law represents the estate of a
deceased judgment-debtor". It would be relevant to observe that the view
thus expressed by Woodruffe, J. has been, embodied in the present definition of
"legal representative" by s. 2(11).
(1) (1904) 8 C.W.N. 843.
410 Mr. Sastri concedes that a universal
legatee would be a legal representative and he does not challenge that the
person who intermeddles even with a part of the estate of the deceased is also
a legal representative; but his argument is that a legatee who obtains only. a
part of the estate of the deceased under a will cannot be said to represent his
estate and is therefore not a legal representative under s. 2(11). We are not
impressed by this argument. The whole object of widening the scope of the
expression "legal representative" which the present definition is
intended to achieve would be frustrated if it is held that legatees of
different portions of the estate of a deceased do not fall within its purview.
Logically it is difficult to understand how such a contention is consistent
with the admitted position that person who intermeddle with a part of the
estate are legal a representatives. Besides, if such a construction is accepted
it would be so easy for the estate of a deceased to escape its legitimate
liability to pay the debts of a deceased debtor only if the debtor takes the
precaution of making several legacies to different persons by his will.
Besides, as a matter of construction, if different intermeddlers can represent
the estate different legatees can likewise represent it. In regard to the
intermeddlers they are said to represent the estate even though they are in
possession of parcels of the estate of the deceased and so there should be, no
difficulty in holding that the clause "a person who in law represents the
'estate of a deceased person" must include different legatees under the
will. There is no justification for holding that the "Estate" in the
context must mean the whole of the estate. Therefore, we are satisfied that the
plain construction of s. 2(11) is against Mr. Sastri's argument, apart from the
fact that considerations of logic and common sense are equally against it.
In support of his argument Mr. Sastri has
referred us to a decision of the Madras High Court 411 in Natesa Sastrigal v.
Alamelu Achi (1). In that case the Madras High Court no doubt seems to have
observed that s. 2(11) does not include legatees of part of the estate. With
respect, we think the said observation does not represent the correct view
about the interpretation of a. 2(11).
We accordingly hold that the foreign
judgments in the two suits pronounced by the City Civil Court at Hyderabad are
judgments pronounced by a Court of competent jurisdiction, and so the defence
raised by respondents 2 to 12 under s. 13(1) must fail. We have also held that
respondents 2 to 12 are the legal representatives of the deceased Raja Bahadur
and so it follows that the estate of the deceased Raja Bahadur was sufficiently
represented by them when the said judgments were pronounced.
In the result the appeal must be allowed, the
decrees passed by the High Court in the two appeal Nos. 172 and194 of 1947 must
be reversed and the decree of the trial court passed in Civil Suit No. 83 of
1945 restored with costs throughout.
(1)  1 M. L. J. 476.