Judgment
As delivered
PETITIONER:THE ANDHRA BANK LTD.
Vs.
RESPONDENT:R. SRINIVASAN AND OTHERS.
DATE OF JUDGMENT:31/08/1961
BENCH:GAJENDRAGADKAR, P.B.BENCH:GAJENDRAGADKAR, P.B.SUBBARAO, K.HIDAYATULLAH, M.
CITATION:1962 AIR 232 1962 SCR (3) 391CITATOR INFO :1979 SC1915 (6)
ACT:Legal Representative--Not resident within court's jurisdic-tion and not appearing--judgment, if binding--PrivateInternational Law--Applicability--Legatees under will--Iflegal representatives of deceased defendant--`Estate', ifmeans whole estate--Code of Civil Procedure, 1908 (Act V of1908), s.2 (11).
HEADNOTE:During the pendency of two connected suits for recovery ofmoney filed by the appellant in the Hyderabad Court one ofthe respondents died and his sons, daughters and granddaughters were joined in the suits as his legalrepresentatives as holding different pieces of his propertyunder a deed of settlement and a registered will executed byhim. The suits were decreed by the said court but as thedecretal money could not be realised in full the appellantfiled the present suit for the balance in the Madras HighCourt on the basis of the judgments of the Hyderabad CourtAt the time of filing, the previous suits were competent andwithin the jurisdiction of the Hyderabad Court as thedeceased respondent was a resident of Hyderabad but afterhis death at the relevant time his legal representativeswere not residents of Hyderabad. The respondents contendedinter alia that they did not submit to the jurisdiction ofthe Hyderabad Court as it had no jurisdiction over them andthe foreign judgments of that Court were not binding onthem. the high Court held that under the rule of privateinternational law all personal actions must be filed in thecourts of the country where the defendant resided and as thelegal representatives were non-residents of Hyderabad thedecrees passed against them were invalid.Held, that the rule of private international law could notbe applied to a case where the suit as initially filed wascompetent and the court before which it was filed wascompetent to392try-it. If during the pendency of the suit the defendantdied and his nonresident legal representatives were broughton the record to defend the suit on his behalf to the extentof the assets of the deceased held by them, the jurisdictionof the court continued unaffected and the competence of thesuit as originally filed remained unimpaired.Sardar Gurdyal Singh v. The Raja of Faridkote, (1894) L. R.21 I. A. 171, Travers v. Helley [1953] P. 246, Dunne v.Saban [1955] P. 178, Mountbatten v. Mountbatten, [1959] P.43, Dulles v. Vidler, [1951] 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 deceasedperson, 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.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 508 of 1958.Appeal from the judgment and decree dated July 27, 1951, ofthe Madras High Court in A. S. Nos. 172 and 194 of 1947.A. Ranganatham Chetty, C. V. Narasimharao, A. V. Rangamand T. Satyanarayana, for the appellant.
A.V. Viswanatha Sastri and S. Venkattakrishnan, forrespondents Nos. 1 to 3.
R.Ganapathy Iyer and T. K. Sundara Raman, for respondentsNos. 5 to 9.
R. Ganapathy Iyer, Thiagarajan and R. O. Gopalakrishnan forrespondents Nos. 11 and 12.
1961. August 31. The Judgment of the Court was deliveredbyGAJENDRAGADKAR, J.-This appeal has been brought to thisCourt with a certificate issued by the Madras High Courtunder Art. 133(1)(a) of the Constitution and it arises out,of a suit (O.S.No. 83 of 1945) filed by the appellant theAndhra Bank393Limited against the twelve respondents. This suit was basedon two foreign judgments. Exs. P. 1 and P.3, which hadbeen obtained by the appellant against the said respondentsin Hyderabad. Respondent 1 is the, son of Raja BahadurKrishnamachari (hereafter called Raja Bahadur) who died inMarch, 1943. Respondent 1 and his father were residents ofHyderabad. Raja Bahadur was practising as an advocate inHyderabad and subsequently he was appointed the Advocate-General. In September, 1935, respondent 1 was indebted tothe appellant in the sum of Rs. 14.876-3-7 in respect of anoverdraft account. In May, 1938, he became indebted to the-appellant in the sum of Rs. 8,217-11-6 in respect of hisborrowings on a pledge of sanitary-ware goods. Raja Bahadurhad executed a letter of guarantee (Ex. P-18) in January,1932 whereby he guaranteed the repayment of monies borrowedby respondent 1 up to the limit of Rs. 20,000. As theamounts due, from respondent 1 remained unpaid the appellanthad to institute two suits in the Hyderabad High Court fortheir recovery. These suits were numbered 47 and 53 ofFazli 1353. After they were filed in the said High Courtthey were transferred to the City Civil Court and renumberedas Suits Nos. 62 and 61 of Fazli 1353. Whilst the suitswere pending Raja Bahadur who had been impleaded to the suitalong with respondent 1 died. Thereupon the appellantjoined the present respondents 2 to 12 in those two suits aslegal representatives of Raja Bahadur on the ground thatthey were in possession of different pieces of hisproperties under a settlement deed of 1940 and a registeredwill executed by him on August 28, 1942 (Ex. P. 7). Inboth the suits the appellant obtained decrees with costs onOctober, 5, 1944. The said decrees directed respondent 1 topay the whole of the amount claimed by the appellant againsthim and respondents 2 to 12 to pay Rs. 20,000 which was thelimit of guarantee I executed by394Raja Bahadur. All the respondents were directed to payinterest 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 whichamounted to Rs. 4,232-1-7 were given credit for whilst theCourt ,Passed the decrees in the said suits. According tothe appellant an amount of Rs. 27,923-6-5 was still due onthe said decrees and so in the present suit the appellantclaimed from respondent 1 the .whole of the said amount andfrom respondents 2 to 12 Rs. 20,000 with interest and costs.Respondent 2 is the son of Raja Bahadur and respondents 6 to9 are his minor sons. Respondents 3, 4 and 5 are the sonsof respondent 1. Respondent 10 is the daughter of RajaBahadur while respondents 11 and 1 2 are his grand daughtersthrough his two daughters. Respondent 2 for himself and asguardian of his minor sons resisted the appellant's claimand contended that the Hyderabad Courts had no jurisdictionover them and therefore the decrees passed by the City CivilCourt was without jurisdiction. They also alleged that theyhad not been served with notice of suit and had notsubmitted to the jurisdiction of the City Civil CourtRespondent 1 did not resist the suit but his sons did. Theyalleged that they were not the legal representatives of RajaBihadur and had been improperly added as parties to theHyderabad suit. They joined respondents 2 and 6 to 9 intheir contention that the Hyderabad Court was not a Court ofcompetent jurisdiction and they Pleaded that the foreignjudgments 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 fiveprincipal issues. He held that the City Civil Court ofHyderabad had jurisdiction to try the- suits and that thecontesting respondents were bound by the decrees passed inthe said suits. He395also found that the respondents who had been impleaded inthe suits as legal representatives of the deceased RajaBahadur were his legal representatives in law and had beenproperly joined. The other issues framed by the trial courtin respect of the other contentions raised by therespondents were'also found against them. It is, however,unnecessary to refer to those issues and the findingsthereon. In the result a decree was passed in favour of theappellant for the amounts respectively claimed by it againstrespondent 1 and against the assets of Raja Bahadur in thehands of respondents 2 to 12 with interest at 3 per cent.per annum from the date of the plaint till the date ofrealisation. The respondents were also directed to pay thecosts of the appellant.
Against this decree two companion appeals were filed in theHigh Court at Madras. Civil Appeal No. 172 of 1947 waspreferred by respondents 3 to 5, whereas Civil Appeal No.194 of 1947 was preferred by respondent 2 and his sonsrespondents 6 to 9. It was urged by the two sets ofrespondents in their two appeals that the trial court was inerror in holding that the Hyderabad Court was a Court ofcompetent jurisdiction and that the decrees passed by itwere valid. It was also urged that the decrees in questionwere contrary to natural justice and that respondents 2 to12 were in fact not the legal representatives of RajaBahadur and so the Hyderabad Court acted illegally inpassing the said decrees against them. The High Court hasupheld the first contention raised by the respondents andhas held that the City Civil Court of Hyderabad which passedthe decrees was not competent to try the suits and so thedecrees cannot be enforced by a suit under s. 13 (a) of theCode of Civil Procedure. According to the High Court theappellant had failed to prove that any of the contestingrespondents had submitted to the jurisdiction of the Hydera-bad Court. Since the High Court came to the conclusion thatthe decrees were invalid it did not think it396necessary to consider the two other arguments urged by therespondents. Consistently with its findings that thedecrees were invalid and had been passed by the HyderabadCourt without jurisdiction the High Court allowed both theappeals preferred before it by the two sets of respondentsand has dismissed the appellant's suit. It is against thisdecision that the appellant has come to this Court with acertificate issued by the High Court.
The first question which falls to be considered in thepresent appeal is whether the City Civil Court at Hyderabadwas a Court of competent jurisdiction when it pronounced thejudgments in the two suits filed by the appellant in thatCourt. Under s. 13 of the Code a foreign judgment shall beconclusive as to any matter thereby directly adjudicatedupon between the same parties except where it has not beenpronounced by a Court of competent jurisdiction. It iscommon ground that when the suits were filed in HyderabadRaja Bahadur and respondent 1 were residents of Hyderabadand the Hyderabad Court was therefore competent to try thesuits at the time when they were filed. The actions inquestion were actions in personam but they were within thejurisdiction of the Hyderabad Court at their inception.This position is not disputed. It is also not seriouslydisputed that respondents 2 to 12 who were added as legalrepresentatives of the deceased Raja Bahadur did not residein Hyderabad at the relevant time and were foreigners forthe purpose of jurisdiction. The High Court has held thatunder the well established rule of private international lawall personal actions must be filed in the Courts of thecountry where the defendant resides, and since respondents 2to 12 had not submitted to the jurisdiction of the HyderabadCourt. The Hyderabad Court had no jurisdiction to try theclaim against them.
397The rule of private international law on which the HighCourt has relied is no doubt well settled. It has been thusenunciated by Dicey in rule 26 : "When the defendant in anaction in personam is at the time of the service of the writnot in England the Court has no jurisdiction to entertainthe action" (1). According to Cheshire's "PrivateInternational Law" this rule is based on the principle ofeffectiveness. "Jurisdiction", observes Cheshire, 'dependsupon physical power, and since the right to exercise power,or, what is the same thing in the present connection, thepower of issuing process, is exercisable only againstpersons who are within the territory of the Sovereign whomthe Court represents, the rule at common law has always beenthat jurisdiction is confined to persons who are, withinreach of the process of the Court at the time of service ofthe writ. A Court cannot extend its process and so exertsovereign power beyond its own territorial limits"(2). Thislimitation on the competence of Courts to try personalactions against non-resident foreigners has beenemphatically laid down by the Privy Council in the case ofSirdar Gurdyal Singh v. The Rajah of Faridkote(3). "In apersonal action", observed the Earl of Selborne, speakingfor the Board, "to which none of these causes ofjurisdiction previously discussed apply, a decree pronouncedin absentee by a foreign Court to the jurisdiction of whichthe defendant has not in any way submitted himself if; byinternational law an absolute nullity" (P.185). Thisposition is not and cannot be disputed ; but the questionwhich still remains is whether the High Court was right inapplying this rule to the appellant's case. As we havealready seen, at their inception the two suits brought bythe appellant in the Hyderabad Court were competent. Theywere brought against(1) Dicey's "Conflict of Laws." 7th Ed., p. 182.(2) Cheshire's "Private International Law", 5th Ed., P.
107.(3) (1894) L. R. 21 I. A. 171.
398residents over whom the Hyderabad Courts had jurisdiction,and so there can be no manner of doubt that as they werefiled they were perfectly competent 'and filed before aCourt of competent jurisdiction. If after the death of RajaBahadur his legal representatives who were non-residentforeigners were brought on the record in the said suits,does the rule of private international law in questionsinvalidate the subsequent continuance of the said suits inthe Court before which they bad been validly instituted atthe outset ? The High Court has answered this question infavour of the respondents and the appellant contends thatthe 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 inconsidering the effect of the rule of private internationallaw on which the High Court has relied it may be 'relevantto remember that the recent judicial decisions disclose ahealthily tendency to relex the rigour of the said rule. Infact Mr. Chetty has invited our attention to Exception 8which 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 properlybrought against some other person duly served with a writ inEngland, the Court may assume jurisdiction to entertain anaction against such first mentioned person as a co-defendantin the action" (Pp. 201,202). The argument is that thisException shows that where a. personal action is properlybrought against one person in an English Court and it isfound that a nonresident foreigner is a proper or anecessary party to the action in order to sustain the claimmade against the resident in England, it would be open tojoin the non-resident foreigner as a proper or necessaryparty notwithstanding the fact that the said foreigner is399non-resident and not subject to the jurisdiction of theCourt. This Exception is pressed into service to show thatthe rule in question is not rigorously enforced in everycase.
In support of this argument Mr. Chetty has also invited ourattention to the decision of the Probate Court in Travers v.Holley (1). In that case a husband and wife shortly aftertheir marriage in the United Kingdom in 1937 went out. toSydney in New South Wales and took with them all theirbelongings. The husband then thought that the Commonwealthoffered him better prospects. Having settled down in Sydneythe husband invested money in a business which, however,collapsed on the outbreak of war. For a time thereafter heworked, on a sheep farm in Northern New South Wales leavinghis wife at Sydney where a child had been born in 1938.Later he secured a Commission in the Australian forces andwas in due course transferred to the British forces. InAugust, 1943 the wife filed a petition for divorce in theSupreme Court of New South Wales on the allegation that shehad been deserted by her husband since August, 1940. Thepetition succeeded and the wife was granted a decree whichwas made absolute in November 30, 1944. The husband wasserved with a notice of the petition but he did not defend.In due course both the parties remarried. The husband'sremarriage, however, proved unsuccessful and so in 1952 heobtained a decree for divorce on the ground that theAustralian decree was invalid because at the time it wasgranted neither husband nor wife was domiciled in New SouthWales and the wife by remarrying had been guilty ofadultery. Against this decree the wife appealed, and herappeal was allowed. In discussing the validity of thedecree passed by the Supreme Court of Now South Wales theCourt held that "the Courts of New South Wales by s. 16(a)of the New South Wales Matrimonial(1) [1953] P. 246.
400Causes Act, No. 14 of 1899, and the English Courts by s. 13of the Matrimonial Causes Act, 1937 claimed the samejurisdiction, and it would be contrary to principle andinconsistent with comity if the Courts of this Countryrefused to recognise a jurisdiction which mutates mutandisthey claimed for themselves ; and that even if, while indesertion, the husband had reverted to his English domicileof origin the New South Wales Court would not be deprived ofjurisdiction". In other words, on the ground of the rule ofreciprocity the validity of the decree passed by the Courtof New South Wales was not allowed to be effectivelychallenged by the husband in that case, on the ground thatthe relevant statutory provisions of the matrimonial lawwere substantially the same. We ought, however to add thaton two subsequent occasions the principle enunciated in thecase of Travers (1), it has been said, should be confined tothe 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 offoreign decrees founded upon a jurisdiction similar to hourswere directed to a case where the extraordinary jurisdictionof the foreign Court corresponded almost exactly to theextraordinary jurisdiction exercisable by this Court" ; andin Mountbatten v. Mountbatten (3) Davies, J. has raised awhisper of protest against making any further extension ofthe principle (p.81). Mr. Chetty, however, contends that theprinciple of reciprocity is gradually finding more and more,recognition in modern decisions, and on the strength of. thesaid decisions it should be held that the relevant statutoryprovisions in Hyderabad and India being exactly the same therule of private international law on which the High Courtrelied should not be rigorously applied to the present case(1) [1953] P. 246. (2) [1955] P. 178.
(3) [1959] P.43.
401In support of his argument Mr. Chetty has also invited ourattention to the obiter observations made by Denning, L. J.in In Re Dulles Settlement (No.2) Dulles v. Vidler (1).Denning, L. J. observed that the relevant rules prevailingin the Courts in the Isle of Man corresponded with theEnglish rules for service out of the jurisdiction containedin 0. 11 and added "I do not doubt that our Courts would'recognise a judgment properly obtained in the Manx Courtsfor a tort :committed there, whether the defendantvoluntarily submitted to the jurisdiction or not; just as wewould expect the Manx, Courts in a converse case torecognise a judgment obtained in our Courts against aresident in the Isle of Man, on his being properly servedout of our: jurisdiction for a tort committed here". Mr.Chetty points out that this observation again is based onthe rule of reciprocity and it illustrates the moderntendency to relax the rigorous application of the rule ofprivate international law in,'question.
On the other hand it may be pertinent to point out that thepresent editor of Dicey's "Conflict of laws" has commentedon the observations of Denning, L. J. by observing that"this suggested application of the principle of reciprocityis of a more sweeping character than its application toforeign divorces, because in the first place it extends toenforcement and not merely to recognition, and in the secondplace it would, if logically carried out mean that EnglishCourts would enforce foreign judgments based on any of thevery numerous jurisdictional grounds specified in Order 11, rule 1 of the Rules of the Supreme Court". The editorfurther observes that "it may be doubted whether EnglishCourts would be prepared to carry the principle ofreciprocity as far as this, for the suggestion underdiscussion was made by a single Lord Justice in an obiterdictum, and moreover it is directly at variance with aweighty decision of the Court of Queen's(1) [1951] Ch. 842.
402Bench" (Schibsby v. Westenholz (1). Therefore we do notthink that this general argument that the rigour of the ruleshould be relaxed can be accepted.
However, even if the rule has to be applied the questionstill remains whether it has to be applied at the inceptionor the commencement of the suit as well as at a later stagewhen on the death of one of the defendants his legalrepresentatives are sought to be brought on the record. Inealing with this question it would be relevant to recall thefive cases enunciated by Buckley, L. J. in Emmanual Ors. v.Symon(2) in which the Courts of England would enforce aforeign judgment. "In actions in personam", observedBuckley, L. J., 'It here are five cases in which the Courtsof this country will enforce a foreign judgment : (1) wherethe defendant is a subject of the foreign country in whichthe judgment has been obtained ; (2) where he was residentin the foreign country when the action began ; (3) where thedefendant in the rum in character of plaintiff has selectedthe for which be is afterwards sued ; (4) where he hasVoluntarily appeared ; and (5) where he has contracted tosubmit himself to the forum in which the judgment wasobtained". It would be noticed that all these five casesindicate that the material time when the test of the rule ofprivate international law has to be applied is the time atwhich the suit is instituted In other words these five casesdo not seem to contemplate that the rule can be invoked inregard to a suit which had been properly instituted merelybecause on the death of one of the defendants his legalrepresentatives who have been brought on the record are non-resident foreigners. The procedural action taken in such asuit to bring the legal representatives of the deceaseddefendant on the record does not seem to attract theapplication of the rule. If that be so(1) (1870) L. R. 6 Q. R. 155 (Dicey, p.28). (2) [1908] 1 K.B. 302.
403it is at the commencement or the initiation of the suit thatthe rule has to be applied, and if that is so there is nodoubt that the two suits in the City Civil Court atHyderabad were competent when they were brought and the CityCivil Court at Hyderabad which tried' them had jurisdictionto try them.
In form the claim made by the appellant against respondents2 to 12 in the Hyderabad Court was in the nature of apersonal claim ; but in substance the appellant would beentitled to execute its decree only against the assets ofthe 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 fulfil, 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, sub- r. (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 different problem.
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 decreeholder 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 had- submitted 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 there fore, 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).
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 lega- tees 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 and- 194 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) [1950] 1 M. L. J. 476.
