Doraiswami Thevar vs Chidambaram Chettiar And Ors. on 17 October, 1929

Madras High Court
Doraiswami Thevar vs Chidambaram Chettiar And Ors. on 17 October, 1929
Equivalent citations: 122 Ind Cas 175
Author: Jackson
Bench: Jackson


Jackson, J.

1. Petitioner is 2nd defendant in O.S. No. 160 of 1927 District Munsif’s Court, Mayavaram. The plaintiff died and the respondents (Nos. 1 to 3) applied to be brought on the record as his legal representatives. They pleaded to be entitled to be brought on because the plaintiff had been suing in the character of their benamidar and they are the persons really interested in the suit, The learned District Munsif has accepted their plea without addressing his mind to its merits. He simply states that having found the plaintiff to be their benamidar they are in his opinion entitled to be recognised as legal representatives.

2. This recognition would be under Order XXII, Rule 3, Schedule I, “shall cause the legal representative of the deceased plaintiff to be made a party.” And Section 2, Clause (11), Civil Procedure Code, defines what a legal representative is. It is not suggested that the respondents (Nos. 1 to 3) in law represent the estate of the deceased but it is argued that the deceased sued in a representative character and on his death the estate on behalf of which he was suing devolved upon the petitioners. The phrase “sue in a representative character” does not convey any ambiguity to my mind. Whatever role a person openly assumes in a suit is the character in which he sues. If a benamidar chooses to sue as [absolute owner, and is asked in what character he sues, he will naturally say as absolute owner; to say that he is suing in the character of benamidar when he assumes the role of absolute owner is sheer violation of plain language. It is hardly necessary to labour the point To the question ” In what character did you go to the fancy dress ball”, the answer, ‘I went as myself but I dressed up as Napolean, ” would be nonsense.

3. It is urged for petitioner that Section 2, Clause (1;), Civil Procedure Code, has nothing to do with trustees who do not sue in a representative character but in their character of trustees on behalf of the trust; and when a trustee dies the estate does not devolve upon the beneficiary, as may be seen from Section 73, Act II of 1882. I agree, Section 2, Clause (11), Civil Procedure Code, in my opinion, refers to suits in which a person is allowed to represent others in a representative capacity, and not to trustees; but since the deceased plaintiff never appeared either as a trustee or in any representative character but sued in his own right, the point does not arise.

4. The respondents rely on various rulings none of which are particularly relevant to the point in issue. Gur Narain v. Sheo Lal Singh 49 Ind. Cas. 1 : 46 C. 566 : 17 A.L.J. 66 : 36 M.L.J. 68 : 9 L.W. 335 : 23 C.W.N. 521 : 1 U.P.L.R. (P.C.). 1 : 12 Bur.L.T. 122 : 46 I.A. 1 (P.C.) lays down, what in these days is never disputed, that a benamidar legitimately represents the real owner, is a mere trustee for him, and if he likes may sue in his own name in an action to which the beneficial owner is no party. But it does not lay down in such a suit the trustee sues in a representative character. Venkatanarayana Pillai v. Subbammal 29 Ind. Cas. 298 l: 38 M. 406 : 17 M.L.T. 435 : 28 M.L.J. 535 : 17 Bom. L.R. 468 : 19 C.W.N. 641 : 2 L.W. 596 : (1915) M.W.N. 555 : 21 C.L.J. 515 : 42 I.A. 125 (P.C.) establishes that a suit to set aside an adoption is brought by the presumptive reversioner in a representative character. “The suit was brought by the deceased plaintiff as representing, in his reversionary right, the estate of the last male owner.” That is to say, the element of representation is inherent in the suit. This affords no parallel to a suit brought by a man in his own right.

5. Supposing that the benamidar obtains a decree and then dies, the beneficiaries may claim to be his representatives under Section 47, Clause (3), Civil Procedure Code; Bada Krishtam Naidu v. Duvada Patrudu 105 Ind. Cas. 405 : 53 M.L.J. 568 : (1927) M.W.N. 639 : 26 L.W. 308 : 39 M.L.T. 176 : A.I.R. 1927 Mad. 903 : 51 M. 219. The fact that although he did not sue in a representative character still nevertheless they may claim to be his representatives, hardly advances the present argument, because it has no bearing upon legal representatives was defined in Section 2 Clause (11).

6. On the other hand Periannan Chettiar v. Rangachi Reddy 17 M.L.J. 116 which is relied upon by petitioner is very much in point. If a principal allows his agent to sue on his behalf but in his own name, he cannot come in upon the death of that agent as the person entitled to continue the suit.

7. In the same way if parties allow their benamidar to sue in his own name, and not in a representative character, they cannot come in on his death under Order XXII, Rule 3.

8. The respondents (Nos 1 to 3) are not entitled to be recognised as legal representatives of the deceased plaintiff nor to be brought upon the record in that capacity and to that extent the order of the lower Court is modified and the petition is allowed with costs to petitioner to be paid by respondents Nos. 1 to 3 both here and in lower Court.

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