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(11) "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 and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;"
It is noticeable that "legal representative" in the Code of Civil Procedure has been defined to mean a person who represents the estate of the deceased person and includes any person who intermeddles with the estate of the deceased. Thus, two sets of persons would constitute a "legal representative", namely, (1) those who can represent the estate of a deceased person in law and; (2) who intermeddle with the estate of the deceased. The first set of persons to constitute a "legal representative" of the deceased person will be his natural legal heirs and the second set of persons to constitute "legal representative" of the deceased person will be the persons who intermeddle with his estate. In this view, so far as the natural legal heirs are concerned, there is no doubt that they constitute "legal representative". In addition to the natural heirs, as per the definition of the word "legal representative" occurring in Section 2 (11) of the Code of Civil Procedure, the persons who intermeddle in the estate of the deceased, meaning thereby the persons on whom the right in the estate of the deceased is assigned by way of some legal mode, will also constitute "legal representative". Applying the meaning given to the word "legal representative" in Section 2 (11) of the Code of Civil Procedure to the facts of the instant case, what would emerge is that the applicants, who are the natural legal heirs of the deceased-petitioner-Smt. Siya Dulari, are her "legal representative". Since the rights in property in question have been assigned to Smt. Baby, daughter of Sri Sushil Kumar by the deceased petitioner through sale-deed dated 03.11.1998, as such, Smt. Baby, daughter of Sri Sushil Kumar would also be a "legal representative".

A bare reading of Rule 3 and Rule 10 of Order 22 of the Code makes a clear distinction between these two provisions. In case of substitution of a person to whom some right is assigned or created or upon whom any such right in respect of the property in suit during pendency of a suit devolves upon, continuance of the suit may be allowed only by leave of the Court. The Court, at this juncture, observes that transfer of a suit property during pendency of the suit does not take away plaintiffs right to sue. In case the natural legal heirs are not brought on record in place of the deceased-petitioner, the proceedings of the case would abate automatically. However, if there is an assignment or devolution of interest to some other person during pendency of the suit, the suit may still be continued with the permission of the Court at the behest of a person upon whom such interest has devolved during pendency of the proceedings. In such a situation, the person seeking continuance of the suit even after the death of the plaintiff has to merely seek leave or permission of the Court for its continuance. He need not apply for setting aside abatement. In this regard, paragraphs 6, 7 and 25 of the judgment of the Apex Court reported in the case of Dhurandhar Prasad Singh Vs. Jai Prakash University and others, AIR 2001 SC 2552 may be referred to.

"Rule 10 provides for cases of assignment, creation and devolution of interest during the pendency of a suit other than those referred to in the foregoing Rules and is based on the principle that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of suit is devolved upon another during its pendency but such a suit may be continued with the leave of the Court by or against the person upon whom such interest has devolved. But, if no such a step is taken, the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by and can have the benefit of the decree, as the case may be, unless it is shown in a properly constituted proceeding that the original party being no longer interest in the proceeding did not vigorously prosecute or colluded with the adversary resulting in decision adverse to the party upon whom interest had devolved. The legislature while enacting Rules 3, 4 and 10 has made clear cut distinction. In cases covered by Rules 3 and 4, if right to sue survives and no application for bringing legal representatives of a deceased party is filed within the time prescribed, there is automatic abatement of the suit and procedure has been prescribed for setting aside abatement under Rule 9 on the grounds postulated therein. In cases covered by Rule 10, the legislature has not prescribed any such procedure in the event of failure to apply for leave of the Court to continue the proceeding by or against the person upon whom interest has devolved during the pendency of a suit which shows that the legislature was conscious of this eventuality and yet has not prescribed that failure would entail dismissal of the suit as it was intended that the proceeding would continue by or against the original party although he ceased to have any interest in the subject of dispute in the event of failure to apply for leave to continue by or against the person upon whom the interest has devolved for bringing him on the record."

Applying the aforesaid principle of law laid down in the case of Dhurandhar Prasad Singh (supra) what emerges in the instant case is that even though the deceased-petitioner had assigned her right in favour of Smt. Baby, daughter of Sri Sushil Kumar through sale-deed dated 03.11.1998 during pendency of the proceedings before the courts below but right to sue in her natural legal heirs i.e. the applicants does survive. The effect of non-impleadment of Smt. Baby, daughter of Sri Sushil Kumar is only that she will be bound by the result of the instant writ petition. It has clearly been held in the case of Dhurandhar Prasad Singh (supra) that though the subject matter of a suit devolves upon another during its pendency but such a suit may be continued with the leave of the Court by or against a person upon whom such interest has devolved and further that in case, leave of the Court by or against the person upon whom interest in the subject matter of the proceedings had evolved has not been sought, the suit may be continued with the original parity. In the instant case, since the petitioner has died, the proceedings of the instant writ petition would be allowed to continue by her natural legal heirs as no application has been moved by Smt. Baby seeking leave of the Court to continue the proceedings of the writ petition; with the result only that whatever may be the fate of the writ petition, Smt. Baby, daughter of Sri Sushil Kumar would be bound by the same.