Law: Civil Procedure Code (V of 1908)

Section:  O. XXII, rr. 4, 5

  Civil Procedure Code (V of 1908)  O. XXII, rr. 4 & 5 read with S. 2(11)-Legal representative-- Means person in law representing 'estate of deceased or one who intermeddles with estate of deceased-"Legal representative" not same as "next of kin"-Person can be legal representative of deceased person only if he succeeds to his estate-Defendant dying during pendency of suit-Plaintiff seeking to implead brother of deceased .defendant .as his legal representative must show that deceased left behind estate to which his brother succeeded-Question whether ,any person is or is not legal representative of deceased Cannot be postponed till the suit is disposed of and decree put into ;execution-[Girdharlal Krishnavalabh v. Bai Shiv (1884) 8 Bom. 309 and Motiram v. Daw Hnsn E and others A I R 1934 Rang. 196 dissented from]. The defendant in the suit died during the pendency of the suit. The plaintiff sought to bring his brother as legal representative on the record. The application was resisted by the brother on the ground that the deceased defendant did not leave behind any estate and, therefore, question of .anybody representing his estate did not arise. The plaintiff contended that the question whether he succeeded to any estate or not could be resisted by the brother at the time of execution proceeding and not in the suit. Held : A "legal representative" as defined in clause (11) of section 2 of the Code of Civil Procedure "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 and where a party sues or is sued in a repre sentative character the person on whom the estate devolves on the death of the party so suing or sued". It is manifest from this definition itself that there is a distinction between a "legal representative", and the term "next of kin". Although a person may be "next of kin" yet he may not be the "legal representative". "Next of kin" can be the legal representative of a deceased perm only in respect of the property which he may get from him by succession. It…