ivil Appeal No 1069 of 1975
From the Order dated 1851973 of the Calcutta High Court in Matter No 586 of 1968
DN Mukharjee and GS Chatterjee for the Appellant
DN Dwivedi and CV Subba Rao for the Respondents
The Judgment of the Court was delivered by PATHAK CJ
The question raised in these two appeals is 779 whether the assessee Railway in each appeal is a dealer within the meaning of the Bengal Finance Sales Tax Act 194 1 and therefore liable to assessment under that Act
In CA No 845 of 1974 the facts are these
The assessee South Eastern Railway disposes of unclaimed and unconnected goods for money consideration
On 1 April 1952 the assessee applied for registration as a dealer under the Bengal Finance Sales Tax Act in respect of unconnected or unclaimed goods and was accordingly registered
It submitted returns of sales effected by it of unclaimed and unconnected goods year after year and paid sales tax pursu ant to the assessments made by the Sales Tax department
However in assessment proceedings for the four quarters ending March 1959 the assessee applied to the Commercial Tax Officer for cancellation of the registration of the assessee as a dealer under the Act
The Commercial Tax Officer examined the case and did not accept the contention that the assessee was not a dealer
On 6 June 1959 he made an order rejecting the application on the basis that the disposal of unclaimed goods for valuable consideration was a regular feature of the assessee s activities and that therefore the assessee fell within the scope of the Act
The assessee applied in revision before the Assistant Commis sioner of Commercial Taxes
The only point raised in the revision application was whether the assessee could be treated as a dealer within the meaning of the Act
It was stated on behalf of the assessee that unclaimed or uncon nected goods came into possession of the assessee but not as a result of any activity of purchase or of manufacture for sale
It was pointed out that when such good came into possession of the assessee it acquired rights over the said goods under Section 56 of the Railways Act enabling it tO sell the goods
The revision petition was rejected on 27 January 1960 on the finding that the sales effected by the assessee were sales under the Act and that the assessee was a dealer
The assessee proceeded in further revision to the Commissioner of Commercial Taxes West Bengal and simi lar contentions were raised before him but the revision application was dismissed by the Additional Commissioner of Commercial Taxes who dealt with the case by order dated 17 June 1960
The assessee then proceeded in revision before the Board of Revenue West Bengal
The Board held that a transfer of property was involved in the auction held by the assessee and that therefore a sale of goods took place
The Board further held that the systematic and organised charac ter of business carried on by the assessee clothed him with the status of a dealer under the Act
At the instance of the assessee the Board of Revenue 780 referred the following question to the High Court at Calcut ta for its opinion Whether the petitioner Railway in so far as it effects sales of unclaimed and unconnected goods under the provisions of Section 56 of the Indian Railways Act is a dealer within the meaning of Section 2c of the Bengal Finance Sales Tax Act 1941 The facts and circumstances in the case out of which Civil Appeal No 1069 of 1975 arises are substantially similar to those narrated in the earlier case except that the assessee here is the Eastern Railway and it is engaged in selling scrap and unserviceable material
The question referred at the instance of the assessee to the High Court at Calcutta is as follows Whether on the facts and in the circumstances of the case the Controller of Stores Eastern Railways is a dealer engaged in the business of selling scrap and unserviceable materials within the meaning of cl
c read with C1
g of Section 2 of the Bengal Finance Sales Tax Act 1941
 The High Court delivered judgment setting forth detailed reasons therefore in the case relating to the assessee South Eastern Railway
It held that the disposal of the goods did not indicate that the Railway concerned was carrying on business as a dealer liable to assessment under the Act
The High Court disposed of the other case on the same basis as found favour with it in the earlier case and answered the question in favour of the assessee
In these appeals the question is whether the assessee Railway in each case is a dealer for the purpose of as sessment under the Bengal Finance Sales Tax Act 1941
In the case of the assessee South Eastern Railway what were sold were unclaimed goods
The Railway was a carrier of the goods and if at the stage of delivery goods remained un claimed for a period the Railway was entitled to dispose them of
There can be no doubt that the activity of so disposing of the goods was adjunctive to the principal activity of the carriage of goods by the Railway
It is an activity which may be regarded as necessarily incidental or ancillary to its business as carrier of the goods
It seems to South Eastern Railway was a dealer for the 781 purposes of the Bengal Finance Sales Tax Act 1941
In the other case the assessee Eastern Railway disposed of scrap and unserviceable material lying with it
The case is covered directly by the decision of this Court in the District Controller of Stores Northern Railway Jodhpur vs The Assistant Commercial Taxation Officer and Another 1976 37 STC 423
In the circumstances the appeals are allowed the im pugned judgment of the High Court in each case is set aside and the questions referred to the High Court are answered in each case in the affirmative in favour of the revenue and against the assessee
The appellant is entitled to his costs in each case
TNA Appeals allowed


Summary:
The appellant bank instituted a suit against respond ent s husband for recovery of a large amount advanced as loan
The defendant contested the suit
issues were flamed and evidence was being recorded
He however died before the next hearing on 4th November 1970 when the court was informed by his pleader orally about his demise
The appel lant on inquiry learnt on 7th November that the defendant had died on 4th August
The 8th November being Sunday an application under Order XXII Rule 4 of CPC was filed on 9th November for bringing on record the widow as his legal representative
Another application for condoning delay in making the application was also made
The appellant later made another application requesting to treat the latter application as an application under Order XXII Rule 9 for setting aside the abatement of the suit
These applications were contested by the respondent on the ground that the news regarding the death of her husband had been published in the local newspapers and the plaintiffs had knowledge of his death and that the suit had abated as no application for setting aside abatement had been filed within time
In the meanwhile the appellant made another application for adding the names of four sons and two daughters of the deceased defendant on the ground that earlier it had no knowledge about that
On behalf of the respondent it was asserted that the application for 811 substitution was not maintainable as it was filed beyond time and in the alternative she was not the legal heir of the deceased defendant but only his Meeira and as other legal heirs of the deceased defendant were not brought on record within time the application was not maintainable
The trial court found that the application under Order XXII Rule 4 was not barred by time since it had been filed within four days of coming to know of defendant s death
It further held that since the widow one of the legal repre sentatives of the deceased defendant was brought on record within time the sons and daughters could also be impleaded as defendants along with her
It therefore set aside the abatement of the suit
The Judicial Commissioner however took the view that the widow was not a legal representative of the deceased as under the Portugees Law she had acquired Meeira rights and her status was not that of Cabeca De Casal  Head of the family and administrator of the other heirs of the de ceased
Since all the heirs of the deceased defendant had not been brought on record alongwith the widow within time the suit had abated as she alone could not represent the estate of the deceased defendant
Allowing the appeals HELD 11 The trial court committed no error in law in allowing the substitution application
815EF 12 A legal representative  as defined in Civil Proce dure Code 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 representative character the person on whom the estate devolves on the death of the party so suing or sued
The definition is inclusive in character and its scope is wide it is not confined to legal heirs only instead it stipulates a person who may or may not be heir competent to inherit the property of the deceased but he should represent the estate of the deceased person
It includes heirs as well as persons who represent the estate even without rifle either as executors or administrators in possession of the estate of the deceased
All such persons would be covered by the expression legal representative 
If there are any heirs those in possession bona fide without there being any fraud or collusion are also entitled to represent the estate of the deceased
The Civil Procedure Code was ap plicable to the proceedings in the instant case
814G 815A 812 13 The respondent had acquired Meeira  rights under the Portugees Law of Inheritance which was applicable to Goa at the relevant time according to which she had ac quired half share in the estate left by her husband and the remaining half share was inherited by sons and daughters of the deceased
As she was brought on record within time she represented the estate of the deceased defendant and the suit could proceed on merits
The impleadment of other legal representatives at a subsequent stage could not affect validity of the proceedings
815B 816C Daya Ram  Ors
vs Shyam Sundari  and NK Mohd Sulaiman vs NC Mohd Ismail 1966 1 SCR 937 referred to
Mannem Venkataramaih vs M Munnemma  Ors AIR 1963 AP 406 approved