JUDGMENT
B. Bhattacharya, J.
1. The revisions) application under section 115 of the Code of Civil Procedure is at the Instance of a plaintiff/respondent and is directed against Order No. 66 dated May 17, 1999 passed by the learned Additional District Judge, 14th Court, Allpore In Title Appeal No. 65 of 1994 thereby allowing an application under Order 22 Rules 3 and 11 read with section 151 of the Code of Civil Procedure filed by the respondent No. 9.
2. The present petitioner brought against one Mrs. Kuldeep Harbans Singh In the 2nd Court of Subordinate Judge. Allpore, a suit being Title Suit No. 262 of 1981 for eviction on the ground of expiry of lease for 21 years. In the said suit, her husband who was a guarantor on her behalf was also made party.
3. During the pendency of the suit, the husband of the lessee having died, opposite party Nos. 1 to 4 were substituted as his heirs and legal representatives In addition to the original lessee who was already on record.
4. Ultimately, the learned Assistant District Judge by herjudgment and decree dated November 30, 1993 decreed the aforesaid suit and directed the tenant viz., Mrs. Kuldeep Harbans Slngh to vacate and deliver khas possession in favour of the petitioners within three months from the date of delivery of judgment.
5. Being dissatisfied, the sole lessee viz. Mrs. Kuldeep Harbans Slngh preferred an appeal being Title Appeal No. 65 of 1994 which was transferred to the 14th Court of Additional District Judge at Alipore. In the said appeal. the sole appellant made the other heirs of her husband as proforma respondents.
6. The sole appellant had died on December 16, 1998 leaving opposite party Nos. 1 to 4 as her only heirs and legal representatives being the widow, sons and daughter of her predeceased son who were already on record. But those heirs did not take any step to get themselves transposed or substituted as appellants. Instead of those persons, one Sardar Taranjit Singh, the opposite parry No. 9 herein claiming to be Secretary of the Managing Committee of the Central Model School and Trustee of Guru Nanak Educational Trust filed an application under Order 22 Rules 3 and 11 read with section 151 of the Code of Civil Procedure for bringing him on record as legal representative, of the deceased appellant In the said application it was alleged that Central Model Preparatory School has been running from the suit premises since 1961 and Mrs. Kuldeep Harbans Singh, the lessee of the premises entered into an agreement with the trustee of Guru Nanak Educational Trust by which the functions, management and administration of the preparatory school was taken over by the said trust and the said school came under direct management, control and supervision of the Managing Committee of the Central Model School as part and parcel thereof.
7. The said application was opposed by the present petitioners thereby opposing the prayer of the opposite party No. 9.
8. The learned first appellate Court below by the order impugned herein has allowed such application thereby permitting the opposite party No. 9 to be substituted as appellant on the ground that on the death of the sole appellant viz. Mrs. Kuldeep Harbans Singh the said opposite party No. 1 was intermeddling with the estate of the deceased and as such should be treated to be legal representative of the deceased appellant within the meaning of section 2(11) of the Code of Civil Procedure.
9. Being dissatisfied, the plaintiffs/respondents have came up In revision.
10. Mr. Saktlnath Mukherjee, the learned senior counsel appearing on behalf of the petitioners has contended that the averments made In the application under Order 22 Rules 3 and 11 of the Code of Civil Procedure show that the opposite parly No. 9 wanted to be substituted not as legal representative of the deceased but by virtue of an agreement entered into between trustee of Guru Nanak Educational Trust and Mrs. Kuldeep Harbans Slngh dated April 2, 1997. Mr. Mukherjee points out that such agreement having been entered Into during the life time of the sole appellant and such agreement being the basis of the alleged right of the opposite party No. 9, he cannot be described as legal representative of the Estate of the appellant. Mr. Mukherjee submits that the said agreement did not confer any right, title or interest In favour of the trust so far the subject matter of the suit was concerned. Therefore, such agreement cannot even by described as any document creating devolution of Interest over the subject matter of the suit property In favour of the opposite party No. 9 or the Trust. Such being the position. Mr. Mukherjee proceeds, the learned Court of appeal below acted Illegally and with material Irregularity In substituting the opposite party No. 9 as appellant In place of deceased appellant.
11. Mr. Roychowdhury, the learned senior counsel appearing on behalf of the opposite party No. 9 has on the other hand supported the order Impugned herein and has contended that for the purpose of becoming a legal representative within the meaning of section 2(11) of the Code of Civil Procedure, a person need not be the heir of the deceased. Even a person In wrongful occupation In a given case can be described as legal representative. Mr. Roychowdhury points out that the legislature under Order 22 Rules 3 or 4 of the Code has not used the word ‘heirs’ but Instead has Incorporated the word “legal representative” and according to the definition of “legal representative” as mentioned In section 2(11) of the Code such person may Include a person who Intermeddles with the estate of the deceased. Mr. Roychowdhury submits that the lease was taken not only for the purpose of residing but also for the purpose of running a school thereon–as wilt appear from the terms of the lease deed itself. Mr. Roychowdhury has relied upon the agreement to show that by virtue of the agreement, the trustee of Gurunanak Educational Trust has already taken management of the school. Such being the position, Mr. Roychowdhury contends, his client is now intermeddling with the estate of deceased Mrs. Kuldeep Harbans Singh and the learned Court of appeal below rightly substituted the opposite parry No. 9 as appellant. In support of such contention Mr. Roychowdhury has relied upon the following decisions :–
(1) Andhra Bank Ltd. v. Srinivasan and Ors.. .
(2) M. Veerappa v. Evelyn Sequelra and Ors., ,
(3) Sm. Ambika Padht and Anr. v. Srt Radhakrishna Padht and Ors., .
(4) Custodian of Branches of BANCO National Ultramarino v. Nallni Bal, .
(5) Surajmanl and Others v. Kishorilal, ,
(6) Bishnu Kala Karki Dholl v. Bishnu Maya Darjeeni, AIR 1980 Sikim page 1,
(7) Sudama Devi v. Jogcndra Chowdhury,
(8) Guilt v. Sawan. AIR 1924 Lahore page 45,
(9) Aft. Kanmon and Other v. Alia Bakhs, AIR 1941 Lahore page 36,
(10) Kusum Bandhu v. Ram Dayal. .
(11) HarldasRoyv. Calcutta Commercial Bank. ,
12. After hearing the learned counsel for the parties and after going through the decisions cited by Mr. Roychowdhury 1 am not disputing for a moment that on the death of a deceased party, the Court can cause the legal representative of the deceased to be made party if the right to sue survives. There is also no dispute with the proposition of law that the word “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. In a given case even a person having no rightful right over the property but who Intermeddles with the estate of the deceased can be a legal representative. For Instance, if a person alleges that the deceased had left a will appointing him as an executor, such person can be substituted as legal representative even before grant of probate and even though ultimately the probate is not granted by the Probate Court; but In order to come within the meaning of “intermeddler” such person must Intermeddle with the “estate of deceased”. In this connection reference may be made to the provision contained In Order 22 Rule 10 of the Code of Civil Procedure which provides that in any other cases of assignment, creation or devolution of any Interest during the pendency of the suit than that of death of the party, the suit may by the leave of Court be continued by or against the person to or upon whom such Interest has come or devolved. Therefore, while Order 22 Rules 3 and 4 speak of legal representatives of the deceased party, Order 22 Rule 10 specifies other cases of assignment or creation or devolution of Interest Inter vlvos during the pendency of the suit.
13. In the Instant case, the specific case of opposite party No. 9 is that the deceased had entered into an agreement with the Guru Nanak ‘ Education Trust of which the opposite party No. 9 is the Managing Trustee for handing over the management of the school In favour of such trust during her life time and by virtue of such agreement the said trust is managing the school. Thus, the right by virtue of which the opposite party No. 9 claims to be substituted is not a right accruing on the death of the appellant but the same arose by virtue of other case of devolution of Interest through an Inter vlvos document. In such a case, unless there is really any devolution of Interest In the subject matter of suit, opposite party No. 9 cannot be substituted.
14. Mr. Mukherjee In this connection has drawn attention of this Court to Clause IX, the last clause of the agreement wherein the following statements are recorded by the parties :–
“It is also made clear that by those presents no Interest In the immoveable property or otherwise that may require registration is sought to be or In fact transferred”.
15. Such being the position, by virtue of the said agreement there has been no devolution of Interest In “the subject matter of the suit” and as such by dint of such agreement, the opposite party cannot claim any right even within the meaning of Order 22 Rule 10 of the Code of Civil Procedure.
16. Therefore, the learned Court of appeal below acted Illegally and with material Irregularity In substituting the opposite party No. 9 as appellant by treating such opposite party as Intermeddler of the “estate of the deceased appellant” though no such case has been made out. The decisions cited by Mr. Roychowdhury are thus of no avail to his client.
17. I thus set aside the order Impugned and dismiss the application under Order 22 Rules 3 and 11 read with section 151 of the Code of Civil Procedure filed by the opposite parry No. 9.
The revlslonal application is thus allowed.
In the facts and circumstances there will be however no order as to costs.
The learned Court of appeal below is directed to dispose of the appeal In accordance with law an expeditlously as possible and In no case beyond September 30, 2000.
18. Application allowed