K.D. Sharma, J.
1. This is a civil miscellaneous appeal by Sohan Lal under Order 43 Rule 1(u), CPC against the order of the Civil Judge, Bikaner, dated 29th April, 1977, where by Multan Chand respondent was impleaded legal representative of Mst. Magli deceased plaintiff and the suit was remanded to the court of the Munsiff Bikaner, for trial after reversing the judgment and decree of the learned Munsiff dated 13th April, 1976.
2. The relevant facts out of which this miscellaneous appeal are briefly stated as follows : Mst. Magli deceased instituted a suit against Sohan Lal appellant in the court of the Munsiff. Bikaner, for a declaration that the gift-deed executed by her and got registered on 21st May, 1973 in favour of the appellant being ab initio null and void may be revoked It was alleged in the plaint that Mst. Magli was not keeping good health after the death of her husband. Sohan Lal appellant was sympathetic towards her and zradually succeeded in exerting undue Influence on her mind. Under his influence she gifted away her property to him without any consideration and in lieu of his promise to take her and her husband's ashes to Haridwar for performance of certain religious rites or ceremonies. It was further averred in the plaint that Mst. Magli was kept in dark that the deed which she was going to execute in favour of Sohan Lal was a gift-deed. According to her, Sohan Lal made her believe that the deed was an adoption deed.
3. During the pendency of the suit, Mst. Magli plaintiff died on 14th November, 1975. After her death, Multan Chand respondent presented an application in the court of the learned Munsiff for being impleaded as her legal representative as she had willed away her entire property to him on 16th May, 1974. Multan Chand filed a copy of the will also along with his application. The will was got registered in his favour on 29th May, 1974. Notice of this application was given to Sohan Lal appellant that the right to sue did not survive after the death of Mst. Magli plaintiff, because in the absence of any express reservation of a power of revocation in the gift-deed, Mst. Magli donor had no right to revoke the gift-deed during her life-time and as Mst. Magli had no power of revocation at all, she ceased to have any right, title or interest in the property after divesting herself of her title in favour of the donor. It was further contended by the appellant that Mst. Magli was not owner of the property after (he had valid) gifted it away to the appellant and so no question of making a valid will of the properties by he in favour of Multan Chand could legally arise. The learned Munsiff rejected the application of Multan Chard and held that the tight to sue did not survive after the death of the sole deceased plaintiff, i.e. Mst. Magli and that Multan Chard was not her legal representative on the basis of the will executed by her in his favour. The Munsiff, therefore, was of the view that the suit abated on the death of the plaintiff and dismissed it accordingly. Aggrieved by the order of the learned Munsiff, Bikaner, Multan Cnand preferred an appeal in the court of the District Judge, Bikaner. It appears that the appeal was transferred to the court of the Civil Judge, Bikaner, who, after hearing the parties, came to the conclusion that the right to sue survived and so he accepted the appeal, revised the order of the learned Munsiff and sent the case book to the lower court for trial after in pleading Multan Chand as legal representative of the deceased plaintiff. As against this order, Sohan Lal has come-up in appeal to this Court under Order 13 Rule 1(u), CPC as stated above.
4. I have perused the orders of the courts below and heard Mr. Guru Prakash, learned Counsel for the appellant, and Mr. H.D. Khatri and Mr. Parmatma Sharan, Advocates appearing on behalf of the respondent. Firstly, it was contended by Mr. Guru Parkrsh appearing on behalf of the appellant that the order of the learned Munsiff declaring the suit to have abated did not amount to a decree under Section 2, CPC, nor was it an order appealable under Order 43 Rule 1 CPC and as no appeal could be preferred to the lower appellate court. Mr. H.D. Khatri, learned Counsel for the respondent, on the ether hand, urged that the decision of the leaned Mursiff that the right to sue did not survive after the death of sole plaintiff Mst. Magli was an adjudication, which conclusively determined the respondent's right in regard to the matter in controversy in the suit and it was, therefore, a decree and was appealable.
5. I have considered the rival contentions. It may be observed at the outset that the suit abated on the death of Mst. Magli who was the sole plaintiff. After the death of Mst. Magli, respondent Multan Chand presented an application for substitution of his name in place of the deceased plaintiff on the basis of a will alleged to have been executed by the deceased plaintiff in his favour. It appears that the learned Munsiff rejected the application of Multan Chand and refused to set aside abatement on the ground that the right to sue did not survive after the death of the sole plaintiff in the suit. As such an appeal lay to the lower appellate court because the decision of the learned Munsiff that the right to sue did not survive and the suit abated amounted to an adjudication which conclusively determined the right of the respondent in regard to matter in controversy in the suit. The effect of the order of the learned Munsiff is that Multan Chand is debarred from instituting a fresh suit en the same cause of action on which Mst. Magli deceased had filed this suit, The order must thus be deemed to be a final determination of Multan Chand's right to pursue the same cause of action which was the basis of Mst. Magli's suit. Reference in this connection may be made to a Full Bench authority of the Oudh High Court reported as Rampalsingh v. Abdul Hamid A.I.R. 1928 Oudh. 362, wherein a similar view was taken.
6. Another contention put forward by Mr. Guru Piakash learned Counsel for the appellant is that Multan Chand was not a party to the gift deed executed by Mst. Magli in favour of Sohan Lal appellant and so he is precluded from pleading that the deed of gift is full and void as it was obtained by fraud or undue influence. It was further urged that in the gift-deed the power of revocation was not expressly reserved by the donor and so she could not have the right to revoke the gift-deed during her life-time. According to him, unless the do not had the power of revocation and validity revoked the gift, she did not become the absolute owner of the property bf cause she ceased to have any interest or right in the properly by divests as herself of her title in favour of the donor. The above contention has no force in view of the provisions contained in Section 126 of the Transfer of Property Act. Section 126 reads as follows:
The doner and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, as the case may be.
A gift may also be revoked in any of the cases (save want of failure of consideration) in which, if it were a contract, it might be rescinded,
Save as aforesaid, a gift cannot be revoked.
Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.
From a bare perusal of the section, it is evident that a gift is not revocable at the pleasure of the donor. It may be revocable on the following two grounds:
(i) if the donor and the donee agree that on the happening of any specified event which does not depend on the will of the donor the gift shall be revoked;
(ii) in any of the cases (except want or failure of consideration) in which if it were a contract, it might be rescinded.
In the instant case, Mst. Magli, donor, sought revocation of the gift by way of filing a suit on the ground of coercion, fraud, misrepresentation and undue influence. The averments in the plaint were that by reason of fraud played upon her by the defendant-respondent, she executed the deed of gift believing it to be an instrument of a different kind. It was further alleged by her that gift was obtained by undue influence by the donee who was in a position to dominate her will. Hence, it is not open for the respondent to contend that the donor did not exercise her right for revocation of the gift-deed during her life-time and after her death such right does not survive to her legal representatives, It is no doubt true that if she had not exercised her right to revoke the will on any of the grounds envisaged in Section 126 of the Transfer of Property Act, she could not transfer her right to sue for revocation to any person but the mere fact the legal representative of the donor could not have brought a suit in his individual capacity for revocation of the gilt-deed does not cause abatement of the suit which was instituted by the donor during her life-time and which was pending in the court at the time of her death. The learned Munsiff committed an error in holding that the right to sue for revocation of the gift-deed did not survive to the legal representative of the donor. No question of application of the maxim 'a personal right of action dies with the person' does arise in this case. The expression 'right to sue' may be right to get the relief which the deceased had prayed for, except such cause of action or relief as is of a personal nature. In the present case, as stated above, the deceased plaintiff sued for revocation of the gift-deed on the ground that it was obtained by coercion, fraud, misreprentation & undue influence. If the gift-deed is declared null & void and, therefore, of no legal effect, the dect ased could not be held to have divested herself of her right, title or interest in the property in favour of the donee and after her death, Multan Chand becomes entitled to the property comprised in the gift-deed by virtue of a will alleged to have been made in his favour by her. Consequently, the lower appellate court rightly held that the right to sue survived after the death of Mst. Magli, the donor.
7. It will not be out of place to observe that under Rule 3 of Order XXII of the Civil Procedure Code, it is the duty of the court to implead the legal representatives on an application made in that behalf if the right to sue survives after the death of the sole plaintiff unless there is a dispute as to who is the legal representative in which case the question will have to be decided by it under Rule 5(2) of Order XXII, CPG. As I have held above that the right to sue survived in this case after the death of the sole plaintiff, the learned Munsiff was bound to implead Multan Chand who claimed to be the legal representative of the deceased plaintiff on the basis of a will executed in his favour by the deceased. In this view of the matter, the appeal filed by Sohsn Lal fails and is hereby dismissed In the circumstances of the case, the parties shall bear their own costs of this appeal.