Banerji and Aikman, JJ.
1. Rani Tribhuwan Sundar Kuar, the appellant in this appeal, having died since the institution of the appeal, two applications have been presented, one by Bani Balraj Kuar, asking to have her name entered on the record in place of the deceased appellant, and the other by Babu Sri Narain Singh, respondent, praying that the appeal and the suit be declared to have abated. Similar applications have been made in the connected appeal No. 144 of 1896.
2. The suit out of which the two appeals arose, was instituted by Rani Tribhuwan Sundar Kuar for a declaration that the property in suit wag the separate estate of her deceased husband Raja Shanihhu Narain Singh and that she was entitled to it as a Hindu widow; that the defendant Babu Sri Narain Singh had no right to interfere with it, and that an agreement, dated the 7th of November 1892 was void and not binding on her. She further prayed that; should the Court hold that she was not in possession and that the property was in the possession of the defendant, she should be put into possession.
3. The claim was resisted on the ground that the defendant and the deceased Raja were members of a joint Hindu family and that the defendant was entitled to the estate in preference to the widow. The Court below partially decreed the claim, and thereupon the two appeals mentioned above were preferred, one by the plaintiff and the other by the defendant.
4. Rani Balraj Kuar is the mother of Raja Shambbu Narain Singh, and it is conceded that, if the estate was the divided property of the Raja to which the ordinary rule of succession of Hindu law would apply, she would be the next reversioner after the widow.
5. It is contended on behalf of Babu Sri Narain Singh that the cause of action upon which Rani Tribhuwan Sundar Kuar brought her suit was a cause of action personal to her; that it did not survive to Rani Balraj Kuar and that she is in no sense the legal representative of the deceased Rani Tribhuwan Sundar Kuar.
6. The whole question, in our opinion, turns upon whether after the death of Rani Tribhuwan Sundar Kuar the right to sue survives. And the decision of that question again depends upon the determination of the further question whether the decree passed in the suit of the widow is one which would bind the reversioner after the widow, for if the decree be binding on the reversioner the right of action would survive to him. Both these questions seem to us to be concluded by the ruling of their Lordships of the Privy Council in the case of Katama Natchiar v. The Raja of Shivagunga 9 Moo. I.A. 543. Their Lordships held that 'upon the death of a Hindu widow, the right of action formerly vested in her devolves, not upon her heirs, hut upon the next heirs of her husband.' Upon the question whether a decree passed in a suit brought by a widow for the estate of her husband would bind those claiming the estate in succession to her, their Lordships were of opinion that 'unless it could be shown that there had not been a fair trial of the right in that suit--or, in other words, unless that decree could have been successfully impeached on some special ground, it would have been an effectual bar to any new suit *** by any person claiming in succession to' the widow. 'For, assuming her to be entitled to the zamindari at all the whole estate would for the time be vested in her absolutely for some purposes, though, in some respects, for a qualified interest; and until her death it could not be ascertained who would be entitled to succeed. The same principle which has prevailed in the Courts of this country as to tenants in tail representing the inheritance would seem to apply to the case of a Hindu widow; and it is obvious that there would be the greatest possible inconvenience in holding that the succeeding heirs were not bound by a decree fairly and properly obtained against the widow' (p. 604). This view was adhered to by their Lordships in the subsequent case of Hart Nath Chatterjee v. Mothurmohun Goswami I.L.R. 21 Cal. 8. Upon these authorities it must be taken to be settled law that a reversioner succeeding to the estate of a deceased person after the death of the widow of that person would be bound by a decree obtained against the widow, provided that there was a fair trial of the suit in which the decree was passed. Consequently the widow's right to sue survives to and devolves on the heir of her husband entitled to the estate, and such heir, and not her personal heirs, should be held to be her legal representative for the purposes of Section 365 of the Code of Civil Procedure. The cause of action of the widow as against the defendant to the suit is not a cause of action personal to herself. Therefore the heir of the husband, and not her personal heir, is the person entitled to prosecute the suit. This view is supported by the ruling of th6 Calcutta High Court in Premmoyi Choudhrani v. Preonath Dhur I.L.R. 23 Cal. 636. Rani Balraj Kuar being the next heir of Raja Shambhu Narain Singh is in our opinion the legal representative of Rani Tribhuwan Sundar Kuar for the purposes of the suit.
7. Mr. Conlan has contended that Rani Balraj Kuar should not be allowed to continue Rani Tribhuwan Sundar's suit or appeal for two reasons, namely, first, that she could not have brought the suit, as she was not in possession, and, second, that she is estopped from claiming the estate under the terms of the deed of agreement, dated the 7th of November 1892, referred to above. As regards the first point, we observe that the estate is in charge of the receiver appointed by the Court and not in the actual possession of either of the parties. Under such circumstances the person who has the title to the property must be deemed to be in possession, and if Rani Balraj Kuar is entitled to the estate she must be held to be in possession. As for the other point, we do not deem it necessary to decide at this stage of the proceedings whether the defendant would or would not be entitled to set up the agreement as a bar to Rani Balraj Kuar's right to claim the estate. We think that, notwithstanding the existence of the agreement, she is the legal representative of Rani Tribhuwan Sundar for the purposes of this suit. We accordingly direct that the name of Rani Balraj Kuar be entered in the record of the two appeals before us in the place of Rani Tribhuwan Sundar, deceased. Rani Balraj Kuar will have the costs of her applications.