Legal Heirs, Legal Representative and Power of Attorney

An agnate is a person related to the deceased wholly through males; a cognate is a person related otherwise than wholly through males.

Section 9 provides that among the heirs in the Schedule, those in class I take simultaneously and to the exclusion of all others.

Section 10 sets out how the property is divided among class I heirs.

Class I

The class I heirs in the Schedule are: son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son; and, added by the amendment of 2005, son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; and daughter of a pre-deceased daughter of a pre-deceased son.

Two points carry marks. The father is not a class I heir; he is the first entry in class II. And the amendment of 2005 added four female-line heirs to class I, which is part of the wider movement of that amendment towards equality between sons and daughters.

Section 15 sets out the corresponding scheme for a female Hindu dying intestate, and it is different in structure, which is itself a standing subject of criticism.

Legal representative

The definition

Section 2(11) of the Code of Civil Procedure 1908: "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.

Three classes, and the second is the surprise

One, a person who in law represents the estate. In the ordinary case this is the heir or the executor or administrator under a will.

Two, any person who intermeddles with the estate. This is the limb students miss. A person who has no right to the property at all, but who takes possession of it, deals with it, collects its rents or disposes of it, becomes a legal representative by that conduct. In older language such a person is an executor de son tort, meaning an executor "of his own wrong". The purpose is protective: a person who has taken the dead man's property should not escape the dead man's liabilities by saying he was never an heir.

Three, where a party sued in a representative character dies, the person on whom the estate devolves.

So a legal representative may be an heir, and need not be. That is the whole distinction and it is asked directly.

Why the Code needs the concept

Because litigation outlives litigants.

Order XXII rule 1: the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.

Order XXII rule 3(1): where one of two or more plaintiffs dies and the right to sue does not survive to the survivors alone, or where a sole plaintiff dies and the right to sue survives, the court shall, on an application, cause the legal representative of the deceased to be made a party and shall proceed with the suit. Rule 3(2): where no application is made within the time limited by law, the suit shall abate so far as the deceased plaintiff is concerned.

Order XXII rule 4 is the mirror provision for the death of a defendant, and rule 4(2) allows the person so brought on record to make any defence appropriate to his character as legal representative.

Order XXII rule 9 provides that where a suit abates or is dismissed under the Order, no fresh suit shall be brought on the same cause of action, but the plaintiff may apply for an order to set aside the abatement or dismissal on showing sufficient cause.

Abatement means the suit dies. That is the practical consequence of failing to bring the legal representative on record in time, and it is why the concept matters.

The extent of liability

A legal representative is liable only to the extent of the property of the deceased that has come to their hands and has not been duly disposed of. They do not become personally liable for the deceased's debts out of their own pocket.

Power of attorney

The definition

Section 1A of the Powers-of-Attorney Act 1882: in this Act, "Power-of-Attorney" includes any instrument empowering a specified person to act for and in the name of the person executing it.

Two words to know. The person who gives the authority is the donor or principal; the person who receives it is the donee, agent or attorney. Note that "attorney" here does not mean a lawyer.

What it does

Section 2: the donee of a power of attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal where sealing is required, by the authority of the donor; and every such instrument or thing shall be as effectual in law as if it had been executed or done by the donee in the name and with the signature and seal of the donor.

That is the whole point: an act done by the donee within the authority binds the donor as if the donor had done it.

Section 4 allows a power of attorney to be deposited in the High Court, and a certified copy of a deposited instrument to be evidence of its contents.

General and special

A general power of attorney authorises the donee to act for the donor in a class of matters generally, such as the management of all the donor's property.

A special or specific power of attorney authorises a particular act, such as executing one sale deed of one flat, or appearing in one suit.

The distinction matters because the donee's authority is limited to what the instrument gives. An act outside the authority does not bind the donor.

In litigation

Order III rule 1 of the Code of Civil Procedure 1908: any appearance, application or act in or to any court required or authorised by law to be made or done by a party may, except where otherwise expressly provided, be made or done by the party in person, or by his recognised agent, or by a pleader on his behalf, with a proviso that the court may direct any appearance to be made by the party in person.

Order III rule 2(a): the recognised agents of parties include persons holding powers of attorney authorising them to make and do such appearances, applications and acts on behalf of the parties.

So a holder of a power of attorney may conduct a case for the party. There is a limit that is constantly missed: an attorney can do the acts of the party, but cannot give evidence about facts that were within the personal knowledge of the principal alone, because the attorney did not witness them.

Ending it

A power of attorney comes to an end on revocation by the donor, on renunciation by the donee, on the death or insolvency or insanity of either, on the completion of the business for which it was given, or on the expiry of any period fixed in it. A power coupled with an interest, meaning one given to secure an interest of the donee, is not revocable in the same way, so long as that interest subsists.

A note that saves students marks in a later subject: a "power of attorney sale", in which property is transferred by a general power of attorney with an agreement to sell and a will instead of a registered sale deed, does not convey title. Title in immovable property passes by a registered instrument of transfer, not by a power of attorney.

A worked example

Ramesh sues Suresh in 2024 for recovery of a plot in Nashik. Three things then happen.

Ramesh falls ill and cannot attend. He executes a special power of attorney in favour of his brother Girish, authorising him to appear, to instruct counsel and to sign applications in that suit. Under Order III rules 1 and 2(a), Girish is a recognised agent and may do those acts. He cannot, however, step into the witness box and depose to the negotiations of 2019 at which only Ramesh was present.

Suresh dies in 2025. Under Order XXII rule 1 the suit does not abate, because the right to sue for possession survives. Under Order XXII rule 4 Ramesh must apply to bring Suresh's legal representatives on record. Suresh left a widow and two daughters, who are his legal heirs under class I of the Schedule to the Hindu Succession Act 1956 read with sections 8 and 9. Suresh's nephew, who is not an heir at all, has moved into the plot and is collecting rent from a tenant. He too is a legal representative under section 2(11), because he has intermeddled with the estate, and he can be brought on record and made answerable to the extent of what has come to his hands.

Ramesh does not apply in time. Under Order XXII rule 3(2) and rule 4(3) the suit abates as against the deceased, and under rule 9 no fresh suit lies on the same cause of action, though Ramesh may apply to have the abatement set aside on showing sufficient cause.

Three concepts, one file, and each of them decides something concrete.

Distinctions table

What these words do NOT mean

A legal heir is not automatically the legal representative, and a legal representative is not necessarily an heir. Section 2(11) is wider on purpose.

"Intermeddler" is not an insult in the Code; it is a defined category, and it exists to protect creditors of the estate.

A power of attorney does not transfer ownership. It confers authority to act. A "power of attorney sale" of immovable property does not pass title.

An attorney under a power of attorney is not necessarily a lawyer, and holding the power does not entitle a person to plead as an advocate.

Abatement is not dismissal for default. A suit abates because a party died and nobody was substituted in time, and Order XXII rule 9 then bars a fresh suit on the same cause of action.

Limits and criticism

The intermeddler limb is easy to state and hard to prove. Establishing that a person dealt with the estate as their own often needs the very evidence the estate no longer has.

Section 15 of the Hindu Succession Act 1956, which governs succession to a female Hindu, is structured differently from section 8, and the difference has been criticised for decades as unequal treatment. The 2005 amendment addressed coparcenary rights and did not rewrite section 15.

Powers of attorney are widely misused in property dealings, and the practice of transferring immovable property by a general power of attorney with an agreement to sell has caused a great deal of litigation, precisely because a power of attorney is not a conveyance.

Quick revision

Legal heir: entitled by the applicable law of succession. Hindu Succession Act 1956, s.8: class I, then class II, then agnates, then cognates. Section 9: class I heirs take simultaneously and to the exclusion of others. Father is class II, not class I. The 2005 amendment added four female-line heirs to class I. Section 15 for a female intestate.

Legal representative: CPC s.2(11). Three limbs: a person who in law represents the estate; an intermeddler; and, where a party sued in a representative character dies, the person on whom the estate devolves. Order XXII r.1, no abatement if the right to sue survives; rr.3 and 4, substitution; r.9, no fresh suit after abatement, subject to an application to set it aside. Liability limited to the estate that has come to his hands.

Power of attorney: Powers-of-Attorney Act 1882, s.1A, any instrument empowering a specified person to act for and in the name of the executant; s.2, acts done by the donee are as effectual as if done by the donor. Donor and donee. General and special. CPC Order III rr.1 and 2(a): a holder of a power of attorney is a recognised agent. Ends on revocation, renunciation, death, insolvency, insanity, completion or expiry; a power coupled with an interest is not freely revocable. It is not a conveyance.

Test yourself

1. Distinguish a legal heir from a legal representative.

A legal heir is a person entitled under the applicable law of succession to inherit the property of the deceased, for a Hindu male dying intestate the class I and class II heirs, agnates and cognates under section 8 of the Hindu Succession Act 1956. A legal representative under section 2(11) of the Code of Civil Procedure 1908 is a person who in law represents the estate of the deceased, and expressly includes any person who intermeddles with the estate, and the person on whom the estate devolves where a party sued in a representative character dies. An heir is usually a legal representative; a legal representative may be a stranger to the family who has merely intermeddled.

2. Who are the class I heirs of a Hindu male dying intestate, and where does the father stand?

Class I of the Schedule to the Hindu Succession Act 1956 comprises the son, daughter, widow and mother, the son and daughter of a pre-deceased son, the son and daughter of a pre-deceased daughter, the widow of a pre-deceased son, the son, daughter and widow of a pre-deceased son of a pre-deceased son, together with four female-line heirs added in 2005. The father is not a class I heir at all; he is the first entry in class II, and so takes only if there is no class I heir.

3. What happens to a suit if the sole defendant dies?

Under Order XXII rule 1 the death does not cause the suit to abate if the right to sue survives. Under rule 4(1) the court shall, on an application, cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit, and under rule 4(2) that person may make any defence appropriate to his character as legal representative. If no application is made within the time limited by law the suit abates as against the deceased, and under rule 9 no fresh suit lies on the same cause of action, subject to an application to set aside the abatement for sufficient cause.

4. Define a power of attorney and state the effect of an act done under it.

Section 1A of the Powers-of-Attorney Act 1882 provides that "Power-of-Attorney" includes any instrument empowering a specified person to act for and in the name of the person executing it. Under section 2 the donee may execute or do any instrument or thing in his own name and signature by the authority of the donor, and every such instrument or thing is as effectual in law as if executed or done by the donee in the name, and with the signature and seal, of the donor. The act therefore binds the donor, provided it is within the authority given.

5. May a power of attorney holder conduct a case for the party, and what may he not do?

Yes. Order III rule 1 of the Code of Civil Procedure 1908 allows an appearance, application or act to be made by the party in person, by his recognised agent or by a pleader, and rule 2(a) makes a person holding a power of attorney a recognised agent, subject to the court's power to direct the party to appear personally. What he may not do is depose as a witness to facts within the personal knowledge of the principal alone, because he did not witness them; his evidence on such matters is hearsay.

6. Does a "power of attorney sale" transfer title to immovable property?

No. A power of attorney is an instrument of authority, not an instrument of transfer. Title to immovable property passes by a duly executed and registered conveyance, and an arrangement consisting of a general power of attorney, an agreement to sell and a will does not amount to one. The holder may execute a sale deed on behalf of the donor if the power authorises it, but the power itself conveys nothing.