1. This is an application in revision against the order of the Second Subordinate Judge at Dharwar under Order XXII, Rule 3(1), of the Civil Procedure Code, 1908, allowing the opponent Wamanrao to proceed with suit No. 235 of 1940 filed by his cousin's widow Radhabai as her legal representative on her death. Radhabai filed that suit against the petitioner Bajirao, who was claiming to be her adopted son, for a declaration that she had not taken him in adoption and that he was not her legally adopted son. When the suit was pending, Radhabai died on June 5, 1941, and on July 16, 1941, her husband's cousin Wamanrao made an application that he was her legal representative and should be brought on record to continue the suit. The application was opposed on the ground that the defendant himself was Radhabai's legal representative as her adopted son and, therefore, the right of suit did not survive after her death, and that in any case Wamanrao could not be her legal representative unless the defendant was held not to be her adopted son.
2. The learned Subordinate Judge held that for the purposes of the suit Wamanrao was Radhabai's legal representative as he alone was the proper person to challenge the defendant's adoption, and allowed him to continue the suit as her legal representative.
3. Wamanrao was examined at Cawnpur on commission and he stated that Radhabai's husband had died in union with him and that he had succeeded to the joint family property by right of survivorship, and also that in case that contention was not upheld, he was entitled to be brought on record as he was Radhabai's heir. It is, therefore, further contended that in either case Wamanrao should not be allowed to continue the suit as he was either claiming a title superior to that of the deceased plaintiff Radhabai or his claim was inconsistent with the plaint as he was claiming that he was Radhabai's heir and not her reversioner.
4. It is true that if the defendant's adoption be upheld, Wamanrao could not be the reversioner of Radhabai, as the defendant would be the owner of all the property of Madhavrao. But the subject-matter of the suit is the validity of the defendant's adoption itself and the defendant would not be the proper person to represent Radhabai for continuing the suit for a declaration that he is not her adopted son. It is, however, contended that the question whether his adoption is valid, or not should be decided under Order XXII, Rule 5, before Wamanrao is held to be her legal representative and allowed to proceed with the suit. If that is done, it would be giving the defendant an unfair advantage over Wamanrao. If the defendant succeeds in proving the adoption in the summary proceeding, Wamanrao would be out of Court and he will have no right of appeal against the finding. If, on the other hand, the defendant fails to prove his adoption, Wamanrao will have to be brought on record as Radhabai's legal representative and the suit will have to be proceeded with, so that the defendant will get one more opportunity to prove his adoption, and even if he fails, he will have a right of appeal, the real point in issue is who ought to be regarded as the legal representative for the purpose of continuing the suit. In other words, on whom does the right to ask for a declaration that the defendant is not Radhabai's adopted son devolve after Radhabai's death, that is to say, who would be the legal representative of Radhabai and succeed to the property in question in case she succeeds in the suit. Evidently Wamanrao is such legal representative and he must be held entitled to carry on the suit filed by her. This was the view taken under similar circumstances in Gulli v. Sawan I.L.R. (1923) Lah. 72. One of the appeals in that case was in respect of an alienation of ancestral property by the plaintiff's father Gulli and Gulli's brother Puran. The plaintiff claimed that the alienation was without legal necessity and was not binding on him. He died during the pendency of the appeal filed by the alienees and the alienees brought on record -Gulli as the plaintiff's legal representative. It was held that Gulli himself could not be the son's legal representative for the purposes of that appeal and the appeal was held to have abated as the proper legal representative was not brought on record. In coming to that conclusion Broadway J. observed (P. 75):-
For the purposes of this suit it seems to us that, strictly speaking, Gulli could not be regarded as the legal representative of his son. The alienation attacked in the suit was made by him (Gulli) and his brother Puran, and Gulli was not, therefore, the proper legal representative. The appellants in the case were the vendees and it was incumbent on them to move the Court to bring on the record the proper legal representatives.
5. The same principle equally applies to the facts of this case and it must be held that Wamanrao is the proper legal representative of Radhabai for the purpose of continuing the suit.
6. There is no substance in the second contention. It is true that in his deposition before the Commissioner Wamanrao stated that Madhavrao had died in union with him and that he had become the owner of the property in dispute by right of survivorship. But in his cross-examination he admitted that after Madhavrao's death Radhabai had filed a suit and succeeded in recovering Madhavrao's property from Wamanrao. In the alternative Wamanrao did claim that if Radhabai was the owner of the property, then he was her heir. It is argued that he thereby suggested that Radhabai was the absolute owner of the property and that he was her stridhan heir. This distinction was not clearly brought out in Wamanrao's statement. It is not known in what language Wamanrao gave his evidence. There is no vernacular record of his statement. He has expressly stated in his cross-examination that Radhabai inherited the property from her husband after his death and after her death he has become heir to that property. Evidently he claimed to have succeeded to Madhavrao's property after the death of his widow. Although he has not expressly used the word 'reversioner', yet his claim to 'succession to the property' as described by him evidenth shows that he claimed that he was her reversioner. In the application made by him. for being brought on record as Radhabai's legal representative he has merely stated that he is her 'heir'. But he has nowhere stated that the property in dispute was Radhabai's stridhan property, and it would not be fair to impute to him such a statement merely because he claims to be her heir, instead of claiming to be the reversioner after her death. I, therefore, hold that he is rightly brought on record as the legal representative of Radhabai.
7. It is pointed out that he has made an application that he should be allowed to amend the plaint by adding one more ground for the declaration claimed viz. that Radhabai had no power to make an adoption without the consent of her agnates. That application has not yet been considered and no order has been passed on it. It is, therefore, not necessary to express any opinion as regards the maintainability of such an application.
8. The rule is discharged with costs.