A legal guardian in possession of the estate of the minor is notional possession of the estate of his ward. With regard to a legal guardian in possession of the estate of the minor, there would be a presumption of the continuity of possession after the death of the minor till it has been shown otherwise that he was dispossessed thereof.

S.S.SANDHAWALIA, J.

1. Whether the legal guardian of a minor in possession of his property, who is himself a party to the suit along with such minor, would, on the latters death, become his legal representative as an intermeddler with the estate under S.2(11) of the Civil P.C. is the somewhat significant and ticklish question necessitating this reference to a Full Bench.

2. The facts are not in serious dispute. The deceased, Dinesh Paswan, along with his father, Parmeshwar Paswan, and others, had brought the suit for partition of the two-fifth share of the plaintiffs in the suit property and also for a declaration that the deed of sale executed by Raghuni Paswan in favour of Defendant 17, Hari Jha, was collusive, without consideration and inoperative. The said suit was decreed on the 29th July, 1975. The defendants preferred Title Appeal No. 25/10 of 1975/77, which was allocated to the First Additional District Judge, Darbhanga.

3. During the pendency of the appeal, Dinesh Paswan, aforesaid, died on the 30th June, 1976, leaving behind his mother Buchi Devi and his father, Parmeshwar Paswan. Admittedly, the mother, who was Class I heir under Section 8 of the Hindu Succession Act, was not brought on the record as a legal representative within the period of limitation. An objection petition was preferred on behalf of the respondents, raising the plea that the whale suit had abated because of the failure to substitute the Class I legal representative of the deceased minor Dinesh Paswan. In the circumstance, an application under Sec. 5 of the Limitation Act was also preferred for condoning the delay in filing the petition for setting aside the abatement of the appeal on the ground that there was sufficient cause therefor as the appellants were not aware of the death of the respondent and his legal heirs. The learned Additional District Judge, in an elaborate order dated the 26th September, 1978, rejected the stand of the appellants before him and held that there was no sufficient ground for condonation of delay and that the appear abated as a whole.

4. On appeal, the learned single Judge, apparently first dismissed the same. However, on the basis of an application filed by the respondents therein, the matter was re-heard. By the judgement under appeal, the learned single Judge came to the view that if the legal heir of any class, irrespective of the fact whether he is of Class I or Class II, under Section 8 of the Hindu Succession Act, is on the record, no question of abatement would arise. Consequently, he reviewed his earlier order and remitted the case back to the learned Additional District Judge, with a direction that he should add the mother of the deceased Dinesh Paswan as a respondent also and thereafter dispose of the appeal in accordance with law.

5. This letters patent appeal originally came up before a Division Bench, where the firm stand taken on behalf of the respondents was that the legal guardian of a minor in possession of the latters estate must at least be deemed as an intermeddler with the said estate on the death of the minor and, therefore, would represent the same under S.2(11) of the Civil P.C. On behalf of the appellants, however, reliance was placed on Jiba Devi V/s. Satyanand Roy, AIR 1982 Pat 177. Expressing some doubt with regard to the passing observations in the later judgement, the appeal has been referred to a larger Bench for an authoritative decision.

6. As before the Division Bench, so before us, the learned Counsel for the respondents did not attempt to support the judgement under appeal on the basic ground therein that even if a Class II legal heir under Section 8 of the Hindu Succession Act is on the record, despite the exclusion of the Class I heirs, no question of abatement would arise. Instead he took the alternative stand that the legal guardian of the minor being in possession of the latters estate would, on his death, be, in the eye of law, the intermeddler with the said estate,