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V.V. Rama Rao and ors. Vs. Bhavan Narayan Rao - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 44 of 1952 (Analogous to M.A. No. 104 of 1951 and C.R. No. 71 of 1952)
Judge
Reported inAIR1954Ori204
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(11) - Order 22, Rules 1 and 3; Hindu Law
AppellantV.V. Rama Rao and ors.
RespondentBhavan Narayan Rao
Appellant AdvocateH. Mohapatra and ;K.S.R. Murty, Advs.
Respondent AdvocateD. Narasaraju and ;P.V.B. Rao, Advs.
DispositionAppeal and revision allowed
Cases ReferredNarayanswami v. Parvati Bai
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....mohapatra, j.1. this civil revision is against an order of the subordinate judge of berhampur allowing defendant no. 4 to be substituted as the legal representative of the deceased plaintiff in title suit no. 29 of 1951 in the court of the subordinate judge of berhampur, the original plaintiff who died on 22-11-1951 was the widow of late varada kameshwar rao naidu garu. the first defendant varada vizaya rama rao is the first son of the said kameswar rao & the fourth defendant varada bhavan narayan rao is his second son. defendants 2 and 3 (varada venkatakameswar rao & varada venkateswar rao) are the two sons of defendant no. 1, the widow of kameswar rao (the plaintiff, varada mahalakshmi amma) brought this suit on 7th may, 1951 on the following allegations :'the joint family consisting of.....
Judgment:

Mohapatra, J.

1. This civil revision is against an order of the Subordinate Judge of Berhampur allowing defendant No. 4 to be substituted as the legal representative of the deceased plaintiff in Title Suit No. 29 of 1951 in the Court of the Subordinate Judge of Berhampur, The original plaintiff who died on 22-11-1951 was the widow of late Varada Kameshwar Rao Naidu Garu. The first defendant Varada Vizaya Rama Rao is the first son of the said Kameswar Rao & the fourth defendant Varada Bhavan Narayan Rao is his second son. Defendants 2 and 3 (Varada Venkatakameswar Rao & Varada Venkateswar Rao) are the two sons of defendant No. 1, The widow of Kameswar Rao (the plaintiff, Varada Mahalakshmi Amma) brought this suit on 7th May, 1951 on the following allegations :

'The joint family consisting of the father, the two sons (defendants 1 and 4), the two grandsons (defendants 2 and 3) and the widow (the plaintiff) owned extensive properties. Kameswar Rao having felt that he could no longer continue to manage the extensive properties considered that during his life time a partition of the joint family properties was necessary in the best interest of the joint family and eventually, in exercise of his powers as the father-manager of the joint family, effected a partition of the joint family properties in three equal shares in a just and equitable manner after making a small provision for his twelve grand-daughters. The partition-deed was executed on 24-4-1949 and registered on 9th May, 1949.

Of the said partition-deed, the properties described in Schedule A of the deed were allotted to Kameswar Rao, the properties mentioned in Schedules Band C of the said deed were respectively allotted to the first and the fourth defendants. According to the plaintiff the two sons had consented to the said partition even though it was executed by the father alone. On 15th August 1949, Varada Kameswar Rao executed a Will whereby he bequeathed all the immovable properties that were allotted to his share in the partition referred to above to his wife, that is, the plaintiff, for life and after her to the first and the fourth defendants absolutely. The first defendant would be entitled to absolute rights in respect of the properties described in Schedule of the Will and the fourth defendant would be entitled to absolute rights in respect of the properties described in Schedule of the Will.

By the said Will, Kameswar bequeathed all his movable properties to the plaintiff, that is, the widow, absolutely with a legacy of Rs. 35,000/-. It is to be mentioned here that the movables are not the subject matter of the present suit. Kameswar died on 26-11-1949 and the Will was shown to the respectable people present on the eleventh day of his death; a copy of the Will was also given to the first defendant Thereafter the Will was presented for registration and was registered after necessary enquiry.

2. The plaintiff's further allegation was that after the death of her husband she was entitled to a life interest in respect of the properties bequeathed to her by her husband; the Will having been accepted and given effect to by defendants 1 and 4, they (defendants 1 and 4) had absolutely no interest in the properties bequeathed in herfavour which are the subject matter of the present suit during her life time; that she was also in exclusive possession and enjoyment of the suit properties in her own right; but defendant No. 1 was approaching her (the plaintiff) and the 4th defendant several times to get the partition made by the father annulled, but his request to that effect was definitely refused and thereafter defendants 1 to 3 had been attempting to forcibly trespass on the suit properties by means of false propaganda and threats and had been trying to win over the tenants and collect rents from them. The widow-plaintiff therefore brought the present suit praying for the following reliefs:

'(a) declaring that the plaintiff is entitled to the properties described in Schedule X hereto attached and to enjoy them peacefully and without any interference by the defendants.

(b) granting a permanent injunction restraining the defendants 1 to 3 from interfering with the peaceful possession and enjoyment of the plaintiff of the properties described in Schedule X;

(c) awarding to the plaintiff the costs of the suit; and

(d) granting such further or other relief as the Hon'ble Court deems fit under the circumstances of the case.'

3. Defendant No. 4 filed written statement supporting the case of the plaintiff and ultimately stating that he had no objection to the granting of the reliefs prayed for by the plaintiff. Defendant No. 1 is contesting the suit by repudiating the alleged deed of partition and the Will. It is to be noted here that the present defendant No. 2 has filed a suit for partition of all the joint family properties in the Court of the Subordinate Judge of Srikakulam in the State of Madras as there are considerable properties also within the State of Madras. The plaintiff (widow) having died on 22-11-1951, defendant No. 4, that is, the second son of late Kameswar Rao, filed a petition for continuing the suit after being substituted as the legal representative of the widow (the plaintiff). The learned Subordinate Judge having allowed the petition filed by defendant No. 4 by his order dated 3-3-1952, the present civil revision has been filed against the said order.

4. The main question for determination is whether after the death of the plaintiff (Varada Mahalakshmi Amma) the right to sue survives and if the right to sue survives, is defendant No. 4 the legal representative of the plaintiff to be substituted in her place and is he to be allowed to continue the suit in that capacity? The relevant provisions of law are contained in Order 22, Rule 1 and 3 and the definition of the word 'legal representative' contained in Section 2(11) of the Civil Procedure Code. Order 22, Rule 1 runs thus :

'The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.'

Rule 3 is as follows :

'Where one or two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.'

Section 2(11) runs as follows :

' '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.'

5. On a plain reading of the above provisions, it appears to be clear to us that two conditions must be satisfied before defendant No. 4 can be allowed to continue the suit in the place of the original plaintiff, namely, firstly, that the right to sue as disclosed in the plaint survives even after the death of the widow; and secondly, that defendant No. 4 is the legal representative of the deceased plaintiff within the meaning of Section 2(11), Civil Procedure Code. After a careful reading of the plaint as a whole, we are definitely of the view that the right to sue is based upon the life interest that the widow got by virtue of the Will dated 15-8-1949 by the late Kameswar Rao.

The substance of the plaintiff's allegations is that all the properties are joint family properties which were divided into three equal shares by the partition-deed dated 24th April, 1949 Schedule A falling to the share of late Kameswar (plaintiff's husband) and Schedules B and C to the shares of the two sons (defendants 1 and 4). Kameswar executed a Will in favour of the widow (Mahalakshmi Amma) and bequeathed life interest in her favour and provided further that after her (widow's) death defendant No. 1 would get absolute interest in respect of one schedule and defendant No. 4 would get absolute interest in respect of the other.

It is on the basis of this bequest of late Kameswar Rao that the plaintiff's life interest was created and the further cause of action for the suit arose as her right to enjoy the properties was being disturbed by defendants 1 to 3. She therefore prayed for declaration of her right to enjoy the suit properties peacefully and without any interference by the defendants and further for a permanent injunction restraining defendants 1 to 3 from interfering with her peaceful possession and enjoyment. On her death, the right on the basis of which she brought the present action, that is, her life interest by virtue of the Will, has lapsed, and further that on her very case and according to the provisions of the Will itself, defendants 1 and 4 are entitled to absolute interests in the suit properties. It is therefore clear to us that the right to sue of the widow does not survive and the suit would abate.

6. The difficulty seems to be obvious if we consider the reliefs sought for in the plaint itself. If defendant No. 4 is substituted in the place of the widow, he cannot certainly on the very case disclosed in the plaint be entitled to a declaration that he is entitled to the properties described in the schedule and to enjoy them peacefully and without interference by the defendants. Further defendant No. 4 being substituted as the plaintiff cannot be granted a permanent injunction against defendants 1 to 3 from interfering with his peaceful possession and enjoyment of the properties described in the plaint. This is manifestly for the reason that defendant No. 1 is also entitled to absolute right in respect of a substantial portion of the plaint properties according to the case of the plaint itself. It is further clear that the life interest on the basis of which the widow had claimed the reliefs had lapsed and that defendant No. 4 is entitled to absolute right only in respect of some portion of the plaint properties.

7. A further anomalous position will arise by allowing defendant No. 4 to be substituted in the place of the deceased plaintiff in the present suit. In this connexion, we will refer to the allegations made in paragraphs 12 and 21 (a) of the plaint. In paragraph 12, the widow had stated that:

'It is obvious that the 1st defendant and hissons 'and defendant No. 4' and his sons haveabsolutely no right to the properties bequeathedto the plaintiff by the Will dated 15-8-1949.....which she has been in exclusive possession andenjoyment in her own right.'

It is clear from this paragraph that her allegation regarding the title to the properties is as much against the 1st defendant as against the 4th defendant. On the basis of this allegation, she had prayed for her right to enjoy the properties peacefully and without any interference by the defendants'. How can the defendant against whose title the plaintiff had made equal allegations and had also prayed for a relief against that defendant, be substituted in the place of the plaintiff to continue the suit as it was brought.

8. It is clear to us, therefore, that the right to sue lapses along with the lapse of the life interest of the original plaintiff, the widow, and further that the 4th defendant cannot be called as a legal representative as defined in Clause (11) to Section 2, Civil P. C. The 4th defendant does not in law represent the estate of the deceased plaintiff which being a life interest has lapsed. Neither is he any person who intermeddles with the estate of the deceased. The 4th defendant does not satisfy the condition of the last clause which was very much emphasised by the learned counsel for the opposite party as the suit brought by the plaintiff was not in a representative character.

While bringing the suit on the basis of her life interest which she obtained by virtue of the Will she had not brought the suit for the benefit of defendant No. 4 who is one of the remaindermen. The suit was purely for the personal benefit of the plaintiff alone inasmuch as she wanted her enjoyment of the properties not to be disturbed or interfered with.

9. Mr. Narasaraju, appearing on behalf of the opposite party, has relied upon several decisions in support of his contention that in the present case the right to sue does survive and that defendant No. 4 ought to be allowed to continue the suit in order to avoid multiplicity of suits. His main contention is that both the plaintiff and defendant No. 4 rely upon the validity of the partition deed and the Will which are being repudiated by defendants 1 to 3. The main purpose of the suit is to avoid the 'common danger' of the plaintiff and defendant No. 4 on the two title-deeds, that is, the deed of partition and the Will.

He has first placed before us a decision of their Lordships of the Privy Council reported in --Venkatanarayan Pillai v. Subbammal, AIR 1915 PC 124 (A). There, Venkatanarayan brought a suit to obtain a declaration that the adoption of defendant No. 2 by Subbamal (defendant No. 1) that is, the widow of the last male owner, was invalid and did not affect the plaintiff's reversionary interest in the ancestral estate of one Venkatakrishna, the deceased last male owner. Venkatanarayana, that is, the plaintiff in the suit, who claimed to be the presumptive rever-sioner of the last male owner (Venkatakrishna) died during the pendency of the appeal before their Lordships of the Privy Council whereupon the petitioner Kuppasami Pillai (another reversioner) applied to be substituted in the place of the deceased appellant Venkatanarayana and for leave to prosecute it.

Indeed it is a very well settled principle of law that suit of this nature brought by the presumptive reversioner is a representative one not for the personal benefit of the presumptive reversioner but will enure to the benefit of the actual reversioner who will succeed to the estate on the death of the widow. The presumptive reversioner in such a case represents all the reversioners, and their Lordships of the Privy Council observed:

'The right to sue is based on the danger to the inheritance common to all the reversioners which arises from the nature of their rights and the act complained of is to their common detriment, just as the relief sought for is for their common benefit.'

Such being the right to sue in cases of reversionary suits, their Lordships found that the right to sue survived to the other reversioners and did not die with the death of the presumptive reversioner. The two species of cases brought by the presumptive reversioner for declaring that an adoption had never taken place or was invalid or to set aside alienation by the widow on the ground that it was not for legal necessity and they are not binding on the reversioners are peculiar to Hindu law wherein the reversioner, even though he has merely a spes successionis, has given the right to sue for the avoidance of a common danger to the reversionary heir. The plaintiff in such a suit represents all the reversionary heirs to such an extent that if he obtains a decree he may himself be able to enjoy the benefit of the decree even though he may be living at the time of the death of the widow if there is a nearer heir to the last male owner.

Such cases, to our mind, have no parallel to the case before us. We would further observe in this connexion that in this case their Lordships, while considering whether the next reversioner Kuppasami could be deemed to be a legal representative within the meaning of Section 2(11), Civil P.C., remarked:

'The phraseology of Sub-section 11, in their Lordships' opinion, is fairly open to the contention that the suit was brought by the deceased plaintiff as representing, in his reversionary right, the estate of the last male owner, and that on his death such right devolved on the petitioner.'

The decision of their Lordships on the point depended on the representative character of the suit and the present suit is not one of that nature.

10. Mr. Narasaraju has drawn our attention to another batch of cases where a Hindu widow enjoying her qualified interest in a deceased husband's estate brings suit for recovery of possession of certain items of property appertaining to the estate against trespassers and on her death the next heir to her husband is allowed to be substituted to continue the suit on the basis of the position that the right to sue survives and the next heir is the legal representative to continue the suit. The decision in this batch of cases is based upon the very well settled principle that a Hindu widow even though she takes in some respects a qualified interest in her husband's estate 'fully represents that estate' and if the suit is conducted bona fide the succeeding heirs, would be bound by the decision in that suit either. In favour of the widow or against her.

In such a suit, it is manifest that the right to sue is not a personal one dying with the death of the widow. The right to sue being to recover the property of the deceased husband from the hands of a trespasser it survives on the death of the widow and a next heir who is entitled to succeed to the estate of the husband is also entitled to continue the suit to bring back the property from the hands of the trespasser. He relies upon a decision reported in -- 'Premmoyi v. Preonath', 23 Cal 636 (B), where Iswari Dassi brought a suit as heir of her deceased husband and in which she had been wrongfully deprived by the defendants in the suit. She died while the suit was pending and the petitioners who were to be substituted were her daughters, the next reversionary heirs. Their Lordships allowed the petition for substitution observing that the widow had brought the suit as representing her husband's estate and the next heirs being the legal representatives as the estate devolved on them on the death of the widow were entitled to pursue the suit.

11. The learned counsel for the opposite party cited another decision of the Allahabad High Court reported in -- 'Rikhai Rai v. Sheo Pujan Singh', 33 All 15 (C). There the daughter of the last male owner brought a suit for possession of certain land on cancellation of a perpetual lease executed by her mother, that is, the widow of the last male owner, during her life time. The daughter died during the pendency of the suit on which the reversionary heir of the last male owner of the property in suit applied to be substituted. Relying on the same principle, their Lordships had allowed substitution.

In the case of -- 'Jadubansi Kuer v. Mahpal Singh', reported in AIR 1916 All 34 (D), the unmarried daughter of the last male owner being the preferential heir brought a suit to recover possession of her father's estate from the defendants on the allegation of their wrongful possession. The three married sisters of the plaintiff were also named as pro forma defendants in the suit. The plaintiff died during the pendency of the suit. The three married daughters on their application were transferred from the array of defendants to that of the plaintiffs. The trial Court dismissed the suit on the ground that the suit had abated by reason of the death of the original plaintiff. Relying upon the selfsame principle that the original plaintiff had represented the estate of her father and as the right to sue, that is, the right to recover the property from the hands of the trespassers survived the death of the plaintiff, the married daughters who were the next heirs as the legal representatives were held entitled to continue the suit.

Their Lordships had emphasised the position that in a suit of this nature if the suit was conducted bona fide the decision of the case would bind all the reversionary heirs of the last male owner and as such they ought to be allowed to continue the suit as representing the estate to recover it from the hands of the trespassers. Gandi Ramaswami v. Puramsetti Pedamunayya', AIR 1916 Mad 611 (E) is another decision of the same kind.

12. The main distinguishing feature in this batch of cases is that the limited owner under the Hindu law brings a suit for recovery of possession from the hands of the trespasser; the limited owner undoubtedly represents the entire estate of the last male owner and the right to recover possession from the trespassers survives in favour of the man succeeding to the estate.

In the present case, the remarkable feature is that the suit is not one to recover possession of the estate from the hands of the trespassers who are in wrongful possession of the properties. The suit was filed by the widow on the basis of her life interest and on her death these defendants are the persons who are entitled to the properties in either view of the case whether the partition deed and the Will are held to be invalid or otherwise. Even if the deed of partition and the Will go, these defendants will be entitled to the properties in suit by way of inheritance and survivorship as sons and grandsons of late Kameswar and if the partition deed and the Will are held to be valid, defendants 1 and 4 would be entitled to the different items of properties scheduled in the Will which covers the properties in dispute. So, if there be a dispute amongst the defendants themselves, the dispute has got to be settled in a separate suit the frame of which is bound to be entirely different.

13. Another remarkable feature which is common to all the cases relied upon by Mr. Narasaraju is this that wherever a proposed legal representative has been allowed to continue the suit, theframe of the suit remains completely unaffectedand the reliefs sought for by the proposed legalrepresentative are identical. In the present case,however, as we have indicated above, if defendantNo. 4 is to be substituted as the legal representative of the original plaintiff we cannot maintainthe identity of the reliefs in the original plaintinasmuch as even on the case made out in theplaint itself on the death of the widow defendants 1 to 3 will be entitled to some properties insuit in their absolute rights.

14. The learned counsel for the opposite party drew our attention to a decision of Ramesam, J. sitting singly in the case of -- 'Subramania Pillai v. Venkatachalam Pillai', AIR 1929 Mad 524 (F). In that case the original plaintiff was legatee under a Will. The Sub-Registrar and the District Registrar having refused to register the Will the plaintiff filed a suit for registration. During the pendency of the suit the plaintiff having died another legatee under the Will applied to be substituted and was allowed to continue the suit. Ramesam, J. observed that such a suit must be regarded as one filed in his representative capacity as, if the Will was finally registered, all the legatees would get the benefit.

Ramesam, J. further observed that the new plaintiff might not be the legal representative of the old one in respect of the specific rights but was to be deemed as legal representative only for the purpose of continuing the suit. With respect, we have got to observe that we doubt the correctness of the decision very much. Supposing the original suit brought by plaintiff No. 1, was decided against plaintiff No. 1, would the decision be binding on plaintiff No. 2 who claimed entirely different rights and different properties even though by virtue of the said Will when he was not a party to the suit itself? In any view that case has no bearing on the facts of tile case before us.

15. Mr. Narasaraju, however, strongly relies upon a Single Bench decision of the Madras High Court reported in -- 'A.G. Ramiah Pillai v. Adhikesavalu', AIR 1953 Mad 869 (G). In that case, the widow claimed life estate on the basis of a Will executed by the last male owner, that is her husband Veeraswami Pillai. In that Will the further provision was that Veeraswami's sister's son would be entitled to absolute interest in the property on the death of the widow. Thewidow brought a suit for recovery of possession of certain items of property and for mesne profits against the defendants on the allegation that they were absolute trespassers. On the death of the widow, the nephew who was entitled to absolute interest in the property as the remainderman filed a petition to be substituted in the place of the deceased widow and to be allowed to continue the suit.

Krishnaswamy Nayudu, J. drawing a parallel from the suit instituted by a Hindu widow on the basis of Hindu widow's estate to recover possession from a trespasser observed that even in the case of a widow claiming on the basis of a Will conferring life estate on her, the widow represents the estate completely. He observed:

'In so far as the representation of the estate of a deceased person is concerned, there is no difference between a widow, who succeeds to her husband's estate, or the sole life estate holder, who becomes entitled to possession of the property under the Will of the testator, here, her husband.'

He further observed:

'In this case, there is no question that the right to sue does survive to the respondent, as the suit is one for possession based on a Will under which both the widow and the respondent claim certain rights, the widow being entitled to possession during her lifetime, and after her death, the person who is entitled to possession would be the respondent and none else. The right to sue for possession has certainly survived to the respondent who has become entitled to possession after the death of the widow.'

We propose not to express an opinion on the question how far a person in possession of the property on the basis of a life interest conferred on him by the last testament of the previous owner of the property can represent the estate completely and how far in a suit of that nature the decision will serve as a res judicata against the remaindermen. We will only observe that the conception of a limited owner of a widow's estate under the Hindu law is different from a life interest holder. A Hindu widow, daughter or mother, inheriting the property of her husband or father or son, as the case may be, has absolute right of disposal of the property for legal necessity while a mere life estate holder under a Will has not. But we may dispose of the decision cited above on the ground that it is clearly distinguishable from the present case.

In the present case, it passes our comprehension how the widow in bringing a suit against both defendants 1 and 4 making allegations against the present title of both of them and seeking reliefs for declaration of her rights to peaceful enjoyment without interference by both of them, can be said to represent the interest of defendant No. 4 in the suit. In the case before us, it is not a mere suit for recovery of possession from the trespassers which would be equally available to the remainderman after the death of the widow. This is a suit against the remaindermen themselves and on the death of the widow on the Will itself the defendants would be entitled to absolute rights in respect of different items of the property and an entirely different situation arises. Defendant No. 4 cannot continue the suit exactly with the same reliefs.

16. Another Bench decision of the Madras High Court which is also strongly relied upon by Mr. Narasaraju is the case of -- 'Narayanswami v. Parvati Bai', reported in AIR 1949 Mad 379 (H). In that case the father and the sons had separated and had independent titles on the basis of the same deed of settlement. In a previous suit, the father was a party claiming title on the basis of the deed of settlement. In the subsequent suit the children claimed their separate and independent titles on the basis of the same deed of settlement. It was contended that the decision in the previous suit to which the father alone was a party would bar as a res judicata to the present suit.

Kunhi Raman, J. while sitting singly in the original side disposed of the suit negativing the contention of res judicata on the ground that, there were two distinct rights in the case -- one right conferred on the parents of the plaintiffs-children and the other on the plaintiffs themselves and therefore it could not be said that there was a private right common to themselves and others. This finding of Kunhi Raman, J. was set aside in the judgment of Rajamannar, Officiating Chief Justice (as he then was) sitting with Mack, J. They observed:

'With due respect to the learned Judge we are of opinion that he overlooked the fact that in this case both the plaintiffs and their parents rely on the same settlement deed as the source of their title. In the prior case the parents relied upon the deed and in the present case the children rely upon the same deed. We think on principle the parents of the plaintiffs in the prior case must be deemed to have represented not only their interest but also the interests of their children under the same deed.'

On the basis of these observations, Mr. Narasaraju contends that in our case when both defendant No. 4 and the deceased plaintiff rely upon the two deeds, that is, the partition deed and the Will, it must be held that the original plaintiff represented the interest of defendant No. 4 as the deeds are common in both. With very great respect we are unable to appreciate how in the previous suit when the father was claiming, asserting and litigating upon his own separate and independent right, he (the father) could represent the interests of the children whose rights are separate and independent. In spite of the deed of settlement being common, when the rights were separate and distinct, the previous suit could not be taken to be a representative suit as contemplated under Explanation VI to Section 11, Civil P.C. which runs as follows:

'Explanation VI.--Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.'

The decision, therefore, will not serve as a guide to us in disposing of the present case and also the other distinguishing features indicated above.

17. The last contention of Mr. Narasaraju was based upon the observations made by their Lordships of the Privy Council in the last two paragraphs of their decision referred to above --'AIR 1915 PC 124 (A)'. Their Lordships observed that on the death of the presumptive reversioner the next reversioner might be substituted in the place of the deceased 'on a broader ground.' Their Lordships thereafter quoted Order 1, Rule 1, Civil P. C., and found that the contingent reversioner could be joined as plaintiff in the suit brought by the presumptive reversioner, and, as such, on the death of the next presumptive reversioner the contingent reversioner is entitled to continue the suit.

In our opinion, as is clear from the observations of their Lordships in the last paragraphs the observations were confined to the cases in which several persons could be joined as plaintiffs and were interested in the identical reliefs sought for in the original plaint. To hold otherwise, would be to lead to startling position. It cannot be seriously argued that the observations will mean that all those persons who may join as plaintiffs under the provisions of Order 1, Rule 1 will be deemed to have their right to continue the suit brought by the original plaintiff even though others have absolutely no interest in the reliefs sought and are entitled to different reliefs, and particularly when they were not plaintiffs in the original plaint.

We will explain the position by reference to an illustration. Three persons A, B and C have got independent rights in respect of 3 items of properties, X, Y and Z by virtue of a common deed of gift. A is dispossessed of his lands, that is, X, and sues for declaration of title and recovery of possession against the trespasser. B's possession was disturbed but he chose not to come as a co-plaintiff in the suit even though he might have come as a cp-plaintiff under Order 1 Rule 1 praying for his separate relief in respect of property Y. On A's death it can never be suggested for a moment that B will be entitled to continue the suit even though he is not interested in the reliefs sought for recovery of possession of the property. X. The observations of their Lordships therefore on the basis of Order 1, Rule 1, Civil Procedure Code will be confined to those type of cases that were before them.

18. In conclusion, therefore, the suit abates and the Civil Revision is allowed with costs.

19. CIVIL REVISION 71/52.--This revision is against the same judgment of the Subordinate Judge arising out of the petition filed by defendant No. 1 for an order that the suit had abated. This revision also will be covered by this judgment of ours.

20. M.A. 104/51.--This miscellaneous appeal has been filed against an order dated 22-11-51 passed by the Subordinate Judge in the same suit under Order 40, Rule 1, Civil P. C., appointing a Receiver. As we have found above when the suit itself abates, the order appointing Receiver is bound to be vacates.

21. In conclusion, therefore, both the Civil Revisions and the Miscellaneous Appeal are allowed with costs, and the suit abates. Hearing tee is fixed at a consolidated sum of Rs. 250/-(rupees two-hundred and fifty) only.

Narasimham, J.

22. I agree.


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