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Report No. 144

2.2.2. Question for consideration.-

The question has arisen whether in the case of a Hindu undivided family, the surviving coparcener becomes a legal representative for the purposes of the Code.

2.2.3. The following High Courts hold that a surviving coparcener is a legal representative:-

(a) Allahabad,1

(b) Madras,2

(c) Patna.3

1. Gyan Daft v. Sadanand, AIR 1938 All 163 (164) (Ganga Nath, J.).

2. Nagappa Nadar v. Karuppiah Nadar, AIR 1925 Mad 456 (457) (on the death of managing member becomes the legal representative).

3. Alekh Chandra v. Krishna Chandra, AIR 1941 Pat 596 (599) (Fazal Ali & Varma,

2.2.4. But a judgment of Bombay High Court (in a Full Bench ruling) creates some doubt, as it contains dicta-

(a) that a son who takes property by survivorship is not a legal representative, but

(b) as regards separate property, he is a legal representative.1

1. Jamburao v. Annappa, AIR 1941 Born 23 (24, 25) (FB).

2.2.5. In an earlier Bombay case1 also, a view had been taken that joint family members cannot be "legal representatives", though this view was criticised, in part, in a later case of the same High Court.2

1. Chunilal Harilal v. Bai Mani, AIR 1918 Born 165 (166) (Beaman & Heaton, JJ.)

2. Ganesh v. Narayan, AIR 1931 Bom 484.

2.2.6. The Supreme Court has taken a broader view of the expression legal representative defined in the Code and have of served1 as follows:

"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 he should represent the estate of the deceased person. It includes heir as well as persons 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 the 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 above case, the Supreme Court referred to an earlier case decided by it2, where it recognised the principle of representation of the estate by some heirs; in that case, the Court held that if after bona fide enquiry, some but not all the heirs of the deceased defendant are brought on record, the heirs so brought on record represent the entire estate of the deceased and the decision of the Court in the absence of fraud or collusion binds even those who are not brought on record as well as those who are impleaded as legal representatives of the deceased defendant.

1. Custodian of Branches of BANCO National Ultramalnino v. Nalini Bai Naique, AIR 1989 SC 1589 (K.N. Singh & K.N. Saikia, JJ.).

2. Dayaram v. Shyam Sundari, AIR 1965 SC 1049.

Conflicting Judicial Decisions pertaining to the Code of Civil Procedure Back

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