PETITIONER: <ORG> Vs. RESPONDENT: <ORG>AURANGABAD AND OTHERS DATE OF JUDGMENT: 07/03/1960 BENCH: <NAME>, A.K. BENCH: <NAME>, A.K. SINHA, BHUVNESHWAR P.(CJ) IMAM, SYED JAFFER WANCHOO, K.N. SHAH, J.C. CITATION: 1960 AIR 801 1960 SCR (3) 177 CITATOR INFO : R 1962 SC1621 (17,38,90) D 1963 SC1047 (26) MV 1966 SC1089 (54) R 1967 SC 1 (48,80) RF 1967 SC1815 (16) F 1977 SC 842 (17,19) RF 1981 SC 660 (7) RF 1981 SC2198 (21) ACT: Motor Vehicles-Grant of stage carriage Permit to <ORG> under Ch. IV-Constitutional validity-- Motor Vehicles Act , 1939 (4 Of 1939), as amended by Act 100 of 1956, ch. IV. ss. 42, 47, ch, IV A, s. 68F(1) -Constitution of India, Arts. 19(1)(g), 14. HEADNOTE: The petitioner, a registered co-operative society, carrying on the business of plying motor buses as stage carriages, had permits for four routes which were due to expire. The <ORG> applied for permits for all these routes under Ch. IV of the Motor Vehicles Act, 1939, as amended by Act 100 of 956, and the petitioner applied for renewal of its own permits. <ORG> rejected the petitioner's applications and granted those of the <ORG>. The petitioner's appeal to the <ORG> Transport Authority was rejected. But <ORG> quashed the said orders under Art. 226 and directed a (1)  26 I.T.R. 351. (2)  28 I.T.R. 914. (3)  31 I.T.R.250. 23 178 reconsideration of the matter. The <ORG> published a scheme under s. 68C , Ch. IVA, of the Act. The scheme was not however finalised. Thereafter <ORG>, purporting to reconsider the matter as directed by <ORG>, rejected the petitioner's applications for renewal and granted those of the <ORG> for permits. It was contended on behalf of the petitioner that in view of Ch. IVA of the Act, the <ORG> had no right to apply for permits except thereunder and the grant of permits on applications made under Ch. IV was, therefore, illegal and infringed the petitioner's fundamental rights under Arts. 19(1)(g) of the Constitution. It was further contended that the order violated Art. 14 as well. Held, that both the contentions were without substance and must fail. The Motor Vehicles Act , 1939, as amended by Act 100 of 1956, lays down two independent sets of provisions relating to running of buses by the <ORG>, one tinder Ch. IV and the other Ch. IVA of the Act. The latter chapter by s. 68F(1) confers a special advantage on the <ORG> when it proceeds under that chapter and entitles it to the necessary permits as a matter of right. Under Ch. IV of the Act, however, the <ORG> cannot claim any such advantage. It has to compete with other applicants. The powers conferred by the two chapters being thus not one but two different powers, the principle enunciated in <NAME> case has no application. Since, therefore, the <ORG> had a distinct right to apply for permits under Ch. IV of the Act, no question of applying for permits without the right to do so and thereby infringing the petitioner's fundamental right under Art. 19(1)(g) could arise. <CITATION> , (1936) L.R. 63 I.A. 372, held inapplicable. <NAME> v. <NAME>, (1876) 1 Ch. D. 426, distinguished. Nor could the maxim expressio unius est exclusio alter us be of any help to the petitioner. That maxim has its utility in ascertaining the intention of the legislature. Since S. 42(3)(a) of the Motor Vehicles Act leaves no manner of doubt as to that intention by its clear indication that the <ORG> cannot run buses as a commercial enterprise without first obtaining permitsunder S. 42(1) Of the Act, that maxim cannot operate so as to imply a prohibition against applying under Ch. IV of the Act. There was therefore, no reason for holding that Ch. IVA of the Act contained the only provision under which the Govern- ment could be allowed to ply stage carriages. Viscountess <NAME>'s claim, (1922) 2 A.C. 339 and <NAME> v. <ORG> of Uttar Pyadesh, (1955) 1 I.L.R. All. 269, considered. It was not correct to say that the <ORG> was not intended to compete with private citizens in obtaining permits under Ch. IV of the Act. Section 47 of the Act lends no support to such a proposition and Art. 19(6) of the Constitution indicates that the <ORG> can enter into such competition without infringing any of the fundamental rights. 179 <ORG> in granting permits acts in a quasi-judicial capacity. If its decision was in any way erroneous having regard to the proviso to s. 47(1) of the Act, that could not amount to a violation of Art. 14 of the Constitution. The petitioner had other remedies open to him. Nor could Ch. IV of the Act be said, in view of Art. 19(6) of the Constitution, to offend that Article by permitting open competition between the <ORG> and a private citizen. JUDGMENT:

ORIGINAL JURISDICTION: Petition No. 110 of 1959. Writ Petition under Article 32 of the Constitution of India for enforcement of Fundamental rights.

<NAME> and <NAME>, for the petitioners. <NAME>, Attorney General for India, <NAME>,<NAME> and <NAME>, for the respondents.

1960. March, 7. The Judgment of the Court was delivered by <NAME>, J.-The petitioner is a co-operative society duly registered and it carries on the business of plying motor buses as stage carriages on the public highways in the State of Bombay. Its case in this petition is that it has been deprived of its right to carry on this business and has also been subjected to discriminatory treatment in the matter of the grant of permits to run its buses. It complains of the infringement of its fundamental rights under arts. 19(1)(g) and 14 of the Constitution.

The questions raised in this matter turn on some of the provisions of the Motor Vehicles Act , 1939, as amended by Act 100 of 1956. These provisions have to be examined before proceeding to discuss the questions that arise. We are concerned only with Chapters IV and IVA of the Act. Chapter IV comprises ss. 42 to 68 and Chapter IVA, which was in its entirety introduced by the amending Act, consists of ss. 68A to 681.

Taking Chapter IV first, we find that s. 42(1) provides that no owner of a transport vehicle shall use or permit the use of the vehicle in any public place save in accordance with the conditions of a permit granted under the Act. A " transport vehicle " is defined in s. 2(33) as a public service vehicle or a goods vehicle. Clause (a) of sub-sec. (3) of s. 42 as it originally stood provided that sub-sec. (1) of that section would not apply to any transport vehicle owned by or on behalf of <ORG> or <ORG> other than a vehicle used in connection with the business of a railway. So under it the Government could ply stage carriages on. the public highways without having to obtain permits in respect of them. The amending Act of 1956 substituted a, new clause

(a) in s. 42(3) for the old clause. The new cl. (a) provides that sub-sec. (1) shall not apply to any transport vehicle owned by <ORG> or <ORG> and used for <ORG> purposes unconnected with any commercial enterprise. Since the amendment, therefore, the <ORG> cannot run stage carriages on the public highways without a permit, just as a private owner of stage carriages cannot do, because such use of the vehicles will not be for a purpose unconnected with a commercial enterprise. Section 44 authorises <ORG> to constitute <ORG> and <ORG> for different areas in that State to carry out the duties specified. Section 45 provides that every application for a permit shall be made to <ORG> of the region in which it is proposed to use the vehicle. Section 47 specifies the matters to which <ORG> shall have regard in considering an application for the grant of a permit. We now come to Chapter IVA. Section 68A(b) defines a " State transport undertaking " for the purpose of the Chapter to mean an undertaking providing road transport service, carried on, among others, by <ORG>. Section 68B provides that the provisions of Chapter IVA shall have effect notwithstanding anything to the contrary contained in Chapter IV. Section 68C is in these terms:

68C. Where any <ORG> transport undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service, in relation to any area or route or portion thereof should be run and operated by the <ORG> transport undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the <ORG>' transport undertaking may prepare a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the <ORG> Government May direct.

Section 68D provides for the preferring of objections to the scheme published under s. 68C , consideration of such objections and final approval of the scheme by the <ORG> Government. The terms of s. 68F(1) are as follows :- S.68F. (1) Where, in pursuance of an approved scheme, any <ORG> transport undertaking applies in the manner specified in Chapter IV for a stage carriage permit or a public carrier's permit or a contract carriage permit in respect of a notified area or notified route, <ORG> shall issue such permit to the <ORG> transport under. taking, notwithstanding anything to the contrary contained in Chapter IV.

The respondents to this petition are (1) <ORG>, Aurangabad, (2) <ORG>, Bombay, (3) <ORG>, Marathwada and (4) <ORG> of Bombay. Aurangabad and Maratliwada are both in the State of Bombay. The first and second respondents are the authorities set up under s. 44 of the Act by <ORG>. It is the duty of the first respondent to consider applications for and to grant, permits for stage carriages to be plied in Aurangabad region and the second respondent hears appeals from the decisions of the first respondent. The third respondent is the head of a department of <ORG> and is in charge of public transport work in Marathwada.

It appears that the petitioner had permits to run buses on four routes in Aurangabad and that these permits were due to expire on October 1, 1958. The third respondent who really represents <ORG> and who may be conveniently referred to as the State of Bombay, had permits for two of these routes. On May 19, 1958, the State of Bombay applied for permits for all these four routes under Chapter IV of the Act. On May 27, 1958, the petitioner applied for renewal of its existing permits. The first respondent rejected the application of the petitioner and granted those of the State of Bombay. The petitioner appealed to the second respondent but its appeal was rejected. In the meantime on some date which does not appear on the record, the petitioner had been granted temporary permits up to December 31, 1958. On the expire of its temporary permits on December 31, 1958, the petitioner would have been unable to run any of its buses and it therefore moved <ORG> at Bombay under art. 226 of the Constitution and <ORG> quashed the orders of respondents Nos. 1 and 2 and directed the applications of the petitioner and the State of Bombay for the permits to be reconsidered. With the reasons of this order of <ORG> we are not concerned. Respondent No. 1, however, without reconsidering the applications as directed by <ORG>, granted temporary permits to the State of Bombay. The petitioner again moved <ORG> which thereupon quashed the order of respondent No. 1 granting temporary permits to the State of Bombay. Thereafter, on March 20, 1959, the respondent No. 1 granted temporary permits to the petitioner which were later extended to July 20, 1959. On June 1, 1959, the State of Bombay publish'ed a scheme under s. 68C in Chapter IVA of the Act. Various objections were filed against the scheme and nothing further appears to have been done to make the scheme final. On July 18, 1959, respondent No. 1 purporting to carry out the directions of <ORG>, reconsidered the petitioner's applications for renewal and the applications of the State of Bombay for permits and rejected the petitioner's applications while allowing those of the State of Bombay. On July, 20, 1959, the petitioner's temporary permits having expired, it ceased to operate its buses. On August 27, 1959, the petitioner filed the present petition in this <ORG> under art. 32 of the Constitution for' appropriate writs quashing the order of respondent No. 1 dated July 18, 1959, restraining the State of Bombay from applying for permits save under the provisions of Chapter IVA and respondent No. 1 from entertaining any application by the State of Bombay under Chapter IV and directing respondent No. 1 to hear the petitioner's applications for permits according to law. Various grounds have been advanced in support of the petition and these will now be discussed. The petitioner first contends that in view of chapter IV-A the State of Bombay bad no right to apply for permits under Chapter IV of the Act as it had done. It says that the order of the first respondent granting permits to the State of Bombay Under chapter IV was therefore illegal and affected its fundamental rights under art. 19(1) (g). The first question then is whether the State of Bombay was entitled to apply for permits under Chapter IV. The petitioner says that special provisions having been made in Chapter IVA to enable the <ORG> to run its buses the <ORG>'s right to run buses was restricted to those provisions and the <ORG> was not entitled to resort to the other provisions of the Act. In support of this con- tention reference was made to the case of <CITATION> (1) where it was observed that "where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all." But this principle can apply only where one power is given and has no application where more powers than one are conferred. If a statute contains, provisions giving more than one power, then the rule cannot be applied so as to take away the powers conferred by anyone of these provisions. As pointed out in <NAME> v. <NAME>(2 ) referred to by the judicial <ORG> in <NAME> case (1) "When a statutory power is conferred for the first time upon a <ORG>, and the mode of exercising it is pointed out, it means that no other mode is to be adopted."

1. (1936) L.R. 63 I.A 372. 381.

(2) ((1876) 1 Ch. D 426, 431.

Now the position here is different. The <ORG> has of course the power to do any business it likes and therefore the business of running stage carriages. We have earlier drawn attention to the change made in cl, (a) of s. 42(3) by the amendment of 1956. Previously, it was not necessary for the <ORG> to obtain permits under s. 42(1) for buses that it intended to run as stage carriages. Since the amendment the <ORG> can no longer run transport vehicles for commercial purposes without obtaining permits unders.42(1). Now the plying of buses as stage carriages is a commercial enterprise and for such buses, therefore, under the sections as they stand, the <ORG> would require permits as any one else. That being so, the sections clearly contemplate that the <ORG> may apply for and obtain permits for its buses run as stage carriages. The rule applied in <NAME> case (1) does not permit the ordinary meaning of s. 42 , sub-s. (1) and sub-s. (3), cl. (

a) to be cut down because of the provisions of Chapter IVA. The Act lays down two independent sets of provisions in regard to the running of buses by the <ORG>, one, under Chapter IV and the other under Chapter IVA. Chapter IVA was intended to give the <ORG>, a special advantage. When the <ORG> chooses to proceed under that chapter, it becomes entitled as a matter of right under s. 68F (1) to the necessary permits. Under Chapter IV the <ORG> does not have any such advantage; it has to compete with other applicants, to secure permits to be able, to run its buses. The powers under the two Chapters are therefore difference To such a case the principle of <NAME> case (1) cannot be applied.

The learned counsel for the petitioner also referred to the maxim expression units est exclusio alterius and contended that since the Act by Chapter IVA provided that the <ORG> would be entitled to run buses under a scheme it impliedly prohibited the running of buses by the <ORG> otherwise. It does not seem to us that this maxim carries the matter further. It is a maxim for ascertaining the (1) [1936] L.R. 63 I.A. 372, 381 intention of the legislature. Where the statutory language is plain and the meaning clear, there is no scope for applying the rule. Section 42(3) (a) appears to us to be perfectly plain in its terms. It contemplates that the <ORG> has to apply for permits under s. 42(1) to run buses as a commercial enterprise. That being so, the maxim cannot, be resorted to for/ ascertaining the intention of the legislature and implying a prohibition against the <ORG> applying for permits under Chapter IV. The learned counsel then referred to the case of Viscounts <NAME>'s claim (1), where it was observed at p. 365 that "The words of the statute are to be construed so as to ascertain the mind of the <ORG> from the natural and grammatical meaning of the words which it has used, and in so construing them the existing state of the law, the, mischiefs to be remedied, and the defects to be amended, may legitimately be looked at together with the general scheme of the Act." His point is that Chapter IVA was introduced by the amendment of 1956 to meet the observations made in <CITATION> (2 ) and some other cases that s. 42(3)(a) was discriminatory in that it exempted the <ORG> from the requirement of a permit and was hence void as offending art. 14 of the Constitution. It is said that Chapter IVA must, therefore, be construed as containing the only provisions enabling the <ORG> to run a stage carriage. It is difficult to appreciate this contention. The observations in the cases referred to, had been made in regard to cl. (a) of s. 42(3) as it stood before its amendment in 1956. That section has been amended and as it now stands it is not discriminatory. The evil pointed out no more exists and no question of reading the Act keeping in view that evil of discrimination, arises. We find nothing in <NAME> case (2) or any other case which points to an evil nor has the learned counsel drawn our attention to any, which the Act can be said to have intended to remedy. We, therefore, find no justification for reading Chapter IVA as containing (1) (1922) 2 A.C. 339. (2) (1951) 1 I.L.R. AU. 269.

the only provisions under which the Government can ply stage carriages.

It is next said s. 42 contemplates the owner of a transport vehicle obtaining a permit and a "<ORG> transport undertaking" cannot apply for a permit under Chapter IV as it cannot be such,owner. But here we are not concerned with a <ORG> transport undertaking for that comes into existence for the purposes of Chapter IVA and that Chapter has not been resorted to by the <ORG> yet. Here the <ORG> applied for the permits under Chapter IV. The <ORG> can of course be the owner of transport vehicles. We have earlier said that in view of cl. (a) of s. 42(3) the <ORG> has to apply for permits under s. 42(1) as any other owner. Therefore the Act contemplates the <ORG> as owner of transport vehicles. Further, under s. 68A a "<ORG> transport undertaking " has been defined as an under- taking providing road transport service carried on by a state <ORG>. Such an undertaking is really a department of a <ORG> and in order to be able ,to provide transport service, it must be able to own transport vehicles. In fact s. 68F(1) requires the <ORG> transport undertaking to apply for permits under Chapter IV and therefore contemplates it as an owner of a transport vehicle for the purposes of s. 42 which is contained in that Chapter.

The learned counsel then referred to the concluding portion of s. 47(1) which makes it incumbent on the authority considering applications for permits to take into consideration the representations made by the persons therein mentioned. He said that the persons there mentioned did not include the <ORG> and therefore the intention is clear that applications for permits by the <ORG> were not intended to be considered under s. 47 and if <ORG> could not come under s 47, it could not come under Chapter IV at all. But assume that representations by the <ORG> are not contemplated by s. 47 . That does not show that applications for permits by the <ORG> are also not contemplated by that section.

It is also said that the matters to which the authority granting the permits is required to have regard in considering applications for permits under s. 47 are such that if the <ORG> enters into competition with citizens for the grant of permits the <ORG> must necessarily get them. Therefore, it is said that it could not have been intended that the <ORG> would compete with the citizens in the matter of obtaining permits under Chapter IV. We are unable to assent to this contention. There is nothing in s. 47 which leads to the conclusion that whenever the <ORG> applies along with private citizens for permits, the <ORG> must get them. Indeed, if that were so, then it would not have been necessary to provide by s. 68F (1) that when the <ORG>, that is, its <ORG> transport undertaking, applied in pursuance of an approved scheme for a permit, the authority concerned would be bound to grant such permit. Section 68F (1) clearly contemplates that without the provision made therein it may so happen that the authority acting under s. 47 may think it fit to grant the permit to a private operator in preference to the <ORG>. It also seems to us that there is nothing in our law to prevent the <ORG> from entering a business in competition with private citizens. Indeed, Art. 19(6) by providing that nothing in art. 19(1)(g) shall affect the application of any existing law in so far as it relates to, or prevent the <ORG> from making any law relating to the carrying on by the <ORG> of any trade, business, industry or service whether to the exclusion, complete or partial, of citizens or otherwise, would seem to indicate that the <ORG> may carry on any business either as a monopoly, complete or partial, or in competition with any citizen and that would not have the effect of infringing any fundamental rights of such citizen.

Our attention was then drawn to the proviso to s. 47(1) under which other thing,; being equal a cooperative society is entitled to preference over individual owners in the matter of grants of permits. It is said that the <ORG> is not an individual owner and therefore it is not contemplated as an applicant for a permit under s. 47 . It seems to us that if the <ORG> is not an individual owner-as to which we are not called upon to say anything-it does not follow that section does not contemplate the <ORG> as an applicant for permit. If <ORG> is not an individual owner: then all that will happen in view of the proviso to s. 47(1) will be that a co-operative society will not be able to claim any preference over the <ORG>. All that the proviso does is to give a co-operative society a preference over individual owners. It is not concerned with stating who can apply for permits.

It seems to us therefore that the petitioner's contention that the <ORG> cannot apply for a permit under Chapter IV of the Act is unsustainable. The petitioner cannot complain of the <ORG> having applied under that Chapter. We are not called upon, therefore, to discuss the further question, whether any fundamental right of the petitioner under art. 19(1)(g) would have been affected by the <ORG> having applied for and obtained permits under Chapter IV without having the right to do so. This disposes of the contentions concerning the infringement of the peti- tioner's fundamental rights under art. 19(1)(g) of the Constitution.

We will now consider the question of the violation of art. 14 of the Constitution. The first contention in this regard was based on the proviso to s. 47(1) . It is said that in the circumstances of this case, as a cooperative society the petitioner was entitled to preference over the <ORG>, considered as an individual owner, and had not been given that preference. It is contended that respondent No. 1 relying on various promises made by the State of Bombay to repair roads and to give other facilities to the traveling public had held that the other conditions were not equal while under the proviso, it was entitled to rely only on the existing conditions. It is contended that thereby the provisions of Art. 14 had been infringed. This contention is in our view clearly untenable. The decision of respondent No. 1 may have been right or wrong and as to that we say nothing, but we are unable to see that decision offends Art. 14 or any other fundamental right of the petitioner. The respondent No. 1 was acting as a quasi judicial body and if it has made any mistake in its decision there are appropriate remedies available to the petitioner for obtaining relief. It cannot complain of a breach of Art 14.

The other contention of the petitioner is that if Chapter IV permits the <ORG> to compete with a private citizen, it offends Art. 14 because in view of the vast resources of the <ORG> a private citizen is bound to lose in such competition. This point is clearly unfounded. Article 19(6) as it now stands, contemplates such a competition as we have earlier pointed out. The petitioner can base no grievance on such competition.

For these reasons we think that this petition must fail and hence it is dismissed with costs.

Petition dismissed.


PETITIONER: <ORG>. Vs. RESPONDENT: <NAME> AND OTHERS. DATE OF JUDGMENT: 31/08/1961 BENCH: <NAME>, P.B. BENCH: <NAME>, P.B. SUBBARAO, K. HIDAYATULLAH, M. CITATION: 1962 AIR 232 1962 SCR (3) 391 CITATOR INFO : 1979 SC1915 (6) ACT: Legal Representative--Not resident within court's jurisdic- tion 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). HEADNOTE: During the pendency of two connected suits for recovery of money filed by the appellant in <ORG> 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 <ORG> on the basis of the judgments of <ORG> At the time of filing, the previous suits were competent and within the jurisdiction of <ORG> 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 <ORG> 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 remained unimpaired. <NAME> v. <NAME>, (1894) L. R. 21 I. A. 171, <NAME> v. <NAME> [1953] P. 246, Dunne v. <NAME> [1955] P. 178, <NAME> v. <NAME>, [1959] P. 43, <NAME> v. <NAME>, [1951] 1 Ch. 842, <NAME> v. <NAME>, (1 870) L.R. 6 Q. B. 155 and <NAME> v. <NAME>, [ 1908] 1 K.B. 302, referred to. <CITATION> , (1936) I.L.R. 39 Mad. 461 and <NAME> 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. <CITATION> , (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, of <ORG> in A. S. Nos. 172 and 194 of 1947. <NAME>, <NAME>, <NAME> and <NAME>, for the appellant.

<NAME> and <NAME>, for respondents Nos. 1 to 3.

<NAME> and <NAME>, for respondents Nos. 5 to 9.

<NAME>, <NAME> and <NAME> for respondents Nos. 11 and 12.

1961. August 31. The Judgment of the <ORG> was delivered by GAJENDRAGADKAR, J.-This appeal has been brought to this <ORG> with a certificate issued by <ORG> 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 <ORG> 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 <NAME> (hereafter called <NAME>) who died in March, 1943. Respondent 1 and his father were residents of Hyderabad. <NAME> was practising as an advocate in Hyderabad and subsequently he was appointed the Advocate- General. 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 the- appellant in the sum of Rs. 8,217-11-6 in respect of his borrowings on a pledge of sanitary-ware goods. <NAME> 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 <ORG> for their recovery. These suits were numbered 47 and 53 of Fazli 1353. After they were filed in the said <ORG> they were transferred to <ORG> and renumbered as Suits Nos. 62 and 61 of Fazli 1353. Whilst the suits were pending <NAME> 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 <NAME> 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 <NAME>. 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 <ORG> ,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 <NAME> 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 <NAME> while respondents 11 and 1 2 are his grand daughters 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 <ORG>s had no jurisdiction over them and therefore the decrees passed by <ORG> was without jurisdiction. They also alleged that they had not been served with notice of suit and had not submitted to the jurisdiction of <ORG> Respondent 1 did not resist the suit but his sons did. They alleged that they were not the legal representatives of <NAME> 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 <ORG> was not a <ORG> 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 <ORG> of Hyderabad had jurisdiction to try the- suits and that the contesting respondents were bound by the decrees passed in the said suits. He also found that the respondents who had been impleaded in the suits as legal representatives of the deceased <NAME> 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 <NAME> 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 the appellant.

Against this decree two companion appeals were filed in <ORG> 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 <ORG> 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 <NAME> and so <ORG> acted illegally in passing the said decrees against them. <ORG> has upheld the first contention raised by the respondents and has held that <ORG> 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 <ORG> the appellant had failed to prove that any of the contesting respondents had submitted to the jurisdiction of <ORG>. Since <ORG> came to the conclusion that the decrees were invalid it did not think it 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 <ORG> without jurisdiction <ORG> 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 <ORG>.

The first question which falls to be considered in the present appeal is whether <ORG> 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 <NAME> and respondent 1 were residents of Hyderabad and <ORG> 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 <ORG> at their inception. 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 <NAME> did not reside in Hyderabad at the relevant time and were foreigners for the purpose of jurisdiction. <ORG> 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 <ORG>. <ORG> had no jurisdiction to try the claim against them.

The rule of private international law on which <ORG> has relied is no doubt well settled. It has been thus enunciated by <NAME> 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 <ORG> has no jurisdiction to entertain the action" (1). According to <ORG>'s "Private International Law" this rule is based on the principle of effectiveness. "Jurisdiction", observes <ORG>, '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 <ORG> represents, the rule at common law has always been that jurisdiction is confined to persons who are, within reach of the process of the <ORG> at the time of service of the writ. A <ORG> cannot extend its process and so exert sovereign power beyond its own territorial limits"(2). This limitation on the competence of <ORG>s to try personal actions against non-resident foreigners has been emphatically laid down by <ORG> in the case of <NAME> v. <NAME>). "In a personal action", observed the Earl of Selborne, speaking for the <ORG>, "to which none of these causes of jurisdiction previously discussed apply, a decree pronounced in absentee by a foreign <ORG> 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 <ORG> 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 <ORG> were competent. They were brought against (1) <NAME>'s "Conflict of Laws." 7th Ed., p. 182. (2) <ORG>'s "Private International Law", 5th Ed., P.

107. (3) (1894) L. R. 21 I. A. 171.

residents over whom <ORG> had jurisdiction, and so there can be no manner of doubt that as they were filed they were perfectly competent 'and filed before a <ORG> of competent jurisdiction. If after the death of <NAME> 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 <ORG> before which they bad been validly instituted at the outset ? The High <ORG> has answered this question in favour of the respondents and the appellant contends that the High <ORG> was wrong in giving the said answer. In this connection it has been urged before us by Mr. <NAME>, on behalf of the appellant, that in considering the effect of the rule of private international law on which the High <ORG> 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. <NAME> 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 <ORG> 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 <ORG> 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 non-resident and not subject to the jurisdiction of the <ORG>. 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. <NAME> has also invited our attention to the decision of <ORG> in <NAME> v. <NAME> (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 <ORG> 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 in 1938. Later he secured a <ORG> 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 <ORG> 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 <ORG> the Court held that "<ORG> by s. 16(a) of the New South Wales Matrimonial (1) [1953] P. 246.

Causes Act, No. 14 of 1899, and the English <ORG>s 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 <ORG>s 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 <ORG> would not be deprived of jurisdiction". In other words, on the ground of the rule of reciprocity the validity of the decree passed by <ORG> 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 <NAME> (1), it has been said, should be confined to the special facts and features of that case. In <NAME> v. <NAME> (2) it is stated that "'the observations in <NAME> v. <NAME> (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 <ORG> corresponded almost exactly to the extraordinary jurisdiction exercisable by this <ORG>" ; and in <NAME> v. <NAME> (3) Davies, J. has raised a whisper of protest against making any further extension of the principle (p.81). Mr. <NAME>, 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 <ORG> relied should not be rigorously applied to the present case (1) [1953] P. 246. (2) [1955] P. 178.

(3) [1959] P.43.

In support of his argument Mr. <NAME> has also invited our attention to the obiter observations made by <ORG> in In Re Dulles Settlement (No.2) Dulles v. <NAME> (1). <ORG> observed that the relevant rules prevailing in the <ORG> 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 <ORG> would' recognise a judgment properly obtained in <ORG> for a tort :committed there, whether the defendant voluntarily submitted to the jurisdiction or not; just as we would expect the Manx, <ORG> in a converse case to recognise a judgment obtained in our <ORG> against a resident in the Isle of Man, on his being properly served out of our: jurisdiction for a tort committed here". Mr. <NAME> 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 <ORG>'s "Conflict of laws" has commented on the observations of <NAME>, 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 <ORG> 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 <ORG> 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 <ORG> (1) [1951] Ch. 842.

Bench" (<NAME> v. <NAME> (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 <ORG> in <ORG> v. Symon(2) in which <ORG> would enforce a foreign judgment. "In actions in personam", observed <ORG>, '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 non- resident 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) [1908] 1 K. B. 302.

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 <ORG> at Hyderabad were competent when they were brought and <ORG> at Hyderabad which tried' them had jurisdiction to try them.

In form the claim made by the appellant against respondents 2 to 12 in <ORG> 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 <NAME> 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 <NAME> 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 <NAME> 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 ? <ORG> had jurisdiction to try the suits when they were filed and there is nothing 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 <NAME>'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 <NAME> 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 <NAME> were non-resident foreigners. 'To hold otherwise would lead to this result that the suits against <NAME> 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.

<ORG> seems to have thought that (1) <NAME> On 'Jurisprudence', 11th Ed., p. 482.

<ORG> terminated on the death of <NAME> 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 <ORG> has relied in support of its conclusion is the judgment' of the Full Bench of <ORG> in <CITATION> & 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.

was attempted to be explained. This contention was negatived. It is in the context of this contention and while rejecting it that <NAME>, 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 <NAME>, J., observed that as soon as a man dies he disappears from the record and there is no party over whom the <ORG> 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 <ORG> has relied must be read in the context of the facts before the <ORG> in that case, and their effect must be appreciated in the light of the argument which was rejected. <ORG> 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 <ORG> in <ORG> v. Sidramapa Pasare(1). In that case a mortgagee H had obtained (1) (1897) I.L.R. 21 Bom. 424.

a decree against the mortgagor <NAME> but before the decree could be executed <NAME> 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 <<NAME>AME> appeared and pleaded that he was not the heir and that the daughters of <NAME> 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 <NAME> 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 <ORG>. <<NAME>AME> and <<NAME>AME>, 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. <<NAME>AME>, J., however, based himself on the ground that the sale proceedings were null and invalid and without jurisdiction because the true legal representatives of <NAME> 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 <NAME> 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 <<NAME>AME>, J., execution proceedings could not properly and validly be continued after the death of <NAME> unless his true heirs and legal representatives were brought on the record. It is thus clear that the problem posed before <ORG> in that case was very much different from the problem with which we are concerned in the present appeal, and so the observations made in that case cannot be of any assistance to the respondents in support of their contention that <ORG> ceased to have jurisdiction over the suit because on the death of <NAME> 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 <ORG> 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 <ORG> 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 <ORG> was in error in reversing the finding of the trial court on the question about the competence of <ORG> 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 <ORG> or not.

That takes us to the other argument raised by Mr. <NAME> 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 <NAME> under the will executed by' him cannot be 'said to be his 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 <NAME> v. <NAME> (1) <ORG> had occasion to consider these conflicting decisions. It was urged before <ORG> 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 <NAME> and <NAME>, JJ. <NAME>, 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 <NAME>, J. has been, embodied in the present definition of "legal representative" by s. 2(11) .

(1) (1904) 8 C.W.N. 843.

Mr. <NAME> 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. <NAME>'s argument, apart from the fact that considerations of logic and common sense are equally against it.

In support of his argument Mr. <NAME> has referred us to a decision of <ORG> in <CITATION> (1). In that case <ORG> 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 <ORG> 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 <NAME> and so it follows that the estate of the deceased <NAME> was sufficiently represented by them when the said judgments were pronounced.

In the result the appeal must be allowed, the decrees passed by <ORG> 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.

Appeal allowed.

(1) [1950] 1 M. L. J. 476.


ORDER <NAME>, J.

1. This revision has been filed under Article 227 of the Constitution India for striking off the suit in O.S.No. 288 of 2004 from the file of <ORG>, Valliyur, on the ground that the suit is not maintainable.

2. The respondents 1 & 2 filed the above suit for an interim injunction, restraining the third respondent from alienating the suit property till the sale agreement is subsisting and restraining the petitioner from commissioning the wind energy electrical generator. Pending suit, respondents 1 and 2 prayed for an interim injunction, restraining the petitioner from commissioning the Wind Mill mentioned above. The Court below gave an interim injunction only with regard to operation of the wind generator. Against this the petitioner herein has filed this revision without filing an appeal which is there remedy against an order passed in an application under Order 39, Rules 1 & 2 and 151 of the Civil Procedure Code.

3. The learned counsel appearing for the petitioner would submit that though there is an appeal remedy, the petitioner have not availed of it because the suit itself is an abuse of process of law and must be struck off from the file. According to the learned counsel, the basis on which the respondents 1 & 2 have filed the suit is the agreement referred to above and even in the; agreement it is clear that possession was not handed over to the respondents 1 and 2. The pleadings also indicate that the third respondent with whom respondents 1 and 2 entered into an agreement were put in possession of the property. The learned, counsel for the petitioner submitted that an agreement holder had no right to seek interim injunction and he was; barred under Section 41(h) of ha Specific Relief Act and therefore, suit must be struck off from the file. He further submitted that if at all the respondents 1 and 2 had a remedy, it was to file a suit for specific performance.

4. The learned counsel for the respondents 1 and 2 submitted that there is an another suit pending, in which, an interim injunction has been obtained restraining the third respondent from alienating the property and for this reason, the respondents 1 and 2 could not file a suit for specific performance. Further it is submitted that under the agreement, six months' time was given and therefore that was another reason why they could not file the, suit for specific performance. The learned counsel admitted that respondents 1 and 2 were not in possession. He submitted further that if interim injunction is not granted, the respondents 1 and 2 would suffer irreparable loss and hardship and would be left with no other remedy.

5. The learned counsel for the respondents relied on the following judgments <NAME> and 4 Ors. v. <NAME> and <NAME>., 2004 (1) L.W. 803, where this <ORG> refused to set aside an order refusing to reject the plaint on an application filed under Order 7, Rule 11, CPC. That case arose in some what similar circumstances. There also the agreement holder has filed the suit for permanent injunction. It was contended by the defendants that in view of the bar contained in Section 41(h) of the Specific Relief Act, the plaint must be rejected. The revision further was dismissed on the ground that the question whether Section 41(h) would apply cannot be decided at that stage.

6. The learned counsel for the respondent also relied on <CITATION> , , where the Full Bench of <ORG> held that a suit for permanent injunction by an agreement holder who is in possession of the property is not barred by Section 41(h) .

7. Both the above cited decisions will not help the respondents, since in both the cases, the agreement holder was put in possession pursuant to the agreement. In fact, in the <ORG> judgment of <ORG> it has been held, that even though the plaintiffs plea for specific performance may be barred by Law of Limitation, they are entitled to continue in possession, since Section 53-A of the Transfer of Property it creates equity in his favour. In the judgment cited supra <NAME> and 4 Ors. v. Baskaran and <ORG>., 2004 (1) L.W. 803 also, the agreements holders were put in possession.

8. The learned counsel for the petitioner relied on the decision <CITATION> , , where this Court came to the conclusion that while considering the grant of temporary injunction, if the Court feels that prima facie the suit itself is not maintainable, since the decree for permanent injunction cannot be granted in view of the bar under Section 41(h) of the Specific Relief Act it cannot be said that the plaintiff has got a prima facie case.

9. The learned counsel for the petitioner also relied on the judgment <CITATION> ., , where a Division Bench of <ORG> held that, the person who alleges that he has purchased a property under an agreement has to get his relief by filing a suit for specific performance and not by filing a suit for injunction and interim injunction cannot be granted.

10. The Learned counsel also relied on the decision <CITATION> ., , where it was held that a suit for permanent injunction by a person, who claims to have an agreement in his favour is not maintainable.

11. If the petitioner is aggrieved by the order passed under Order 39, Rules 1 and 2, there is an appeal remedy and he can avail, of it. If the petitioner's; case is that the plaint should be rejected, even then, he has his remedy. But unless, the circumstances warrants and the abuse of process of law stares in the face, Article 227 cannot be invoked for striking of a case from the file. It is in these circumstances, the <ORG> is dismissed. It is open to the petitioner to raise his objections, in respect of the maintainability of the suit and the bar of Section 41(h) of the Specific Relief Act and since the dismissal of this <ORG> is not on merits, it shall not be held against the petitioner. When such objections are raised, it will be dealt with by the <ORG> in accordance with law.


<NAME>, J.

1. We find ourselves obliged very reluctantly to order a second remand in this case. The order with which the case was sent back to the lower <ORG> in January 1879 was sufficiently precise. The Judge, on the ease going back, appears to have done that which was perhaps not absolutely open to him, viz., to admit fresh evidence, and the plaintiffs contend that, owing to the manner in which that was done, they were put at a certain disadvantage. However that may be, the Judge, we find, refused credit to the witnesses whom the defendants called to prove that the plaintiffs had knowledge of their claim to the <NAME> tenure, and he relies altogether upon certain documents which the defendants have put in. He says:---It remains to be seen what the documentary evidence shows. The potta certainly does not show by itself that the plaintiffs knew for more than twelve years of the title set up by defendants. There is nothing to show that it came to their notice before 1866, which is only ten years before the institution of the present suit in the <ORG>. As to its genuineness, I see no reason to doubt that." Now a potta which is an instrument purporting to confer on the defendants an absolute right to hold land forever at a fixed rate is a very important instrument, and a Judge does not discharge himself of his duty in regard to that when he simply looks at it and says he sees no reason to doubt the instrument. This is a matter of which the proof lay wholly upon the defendants, and they had to satisfy the <ORG> that this was a genuine valid instrument. The provisions of the Evidence Act which relates to documents of thirty years of age is one which requires great care in its application, especially in this country. It would be very serious indeed for persons owning land if the mere production of an instrument purporting to be thirty years old absolutely entitles the person producing it to a decision that it is a genuine valid instrument. All that s. 90 says is :-"Where any document purporting or proved to be thirty years old is produced from any custody which the <ORG> in the particular case considers proper, the <ORG> may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person's handwriting"; that is to say, if in this case the <ORG> was satisfied as to the production of this instrument from what it considered to be proper custody, it would not be bound to presume that the signature attached to it was in the handwriting of the person whose handwriting it purported to be; and still, much would be left before the defendants would be entitled to the benefit of that instrument as establishing their title. They would have to show that the persons whose handwriting the signature was, was a person entitled to grant such a document. And in like manner, as to the dakhillas the Judge says: "I see no reason to doubt the genuineness of these upwards of thirty years old, of which no attestation is required." Here again; the utmost that the <ORG> would be entitled to presume, and that it could only do with considerable caution, is, that they were signed by the person whose signature they purported to bear. It would still remain to be shown that the person signing was authorized to sign, and that his signature bound the plaintiffs. In these circumstances the Judge says:-" The plaintiff's producing no evidence at all, I consider that the potta is genuine, and that the receipts admitted are genuine, and I consider that between them they prove both the validity of the claim set up by defendants, and the plaintiffs' knowledge of it for more than twelve years prior to suit." This, as I have already said, was a case in which the burden of proof as regards this issue lay upon the defendants. They were bound to prove the case. The lower <ORG> had not sufficient materials before it for coming to the conclusion either that the potta was genuine, or that the receipts, if genuine, were binding on the plaintiffs. It is said no doubt that this potta had been already put in evidence in a previous suit between the parties in the year 1866, and the respondents rely upon the result of that suit as being a decision in their favour that they had a valid <NAME> tenure. It appears to us that the decision is far from going that length. The potta put in by the defendants was in answer to a suit by the plaintiffs claiming enhanced rent, and the result of the suit was that the plaintiffs failed to obtain the enhanced rent; but, although the respondents' pleader read to us such parts of the decision as he thought fit, we find nothing in it like a decision, still less a conclusive decision, between the parties that the plaintiffs had a valid <NAME>. Under these circumstances, we think the case must go back. Of course it may be that the defendants may fail to make out a valid <NAME> tenure, and yet the plaintiffs may not be entitled to a decree, because the defendants may be holding this land under such a tenure that they are not liable to be ousted, possibly at all, at any rate without sufficient notice. These points will have to be considered by the <ORG> when it disposes of the question of <NAME>. No application <NAME> made before us for leave to admit fresh evidence, the case must be disposed of on the evidence as it stands. The costs of this appeal will abide the result.