1. This is an application to revise an order of the Special Deputy Collector, Madura District in the matter of bringing on record the legal representatives of the deceased plaintiff in certain suits under Section 77 of the Madras Estates Land Act pending in his Court.
2. The preliminary objection is taken that this Court has no power of interference in revision in such cases, Reliance is placed on Section 205 of the Madras Estates Land Act. In my opinion this section relates, not to incidental orders in suits, the final decree in which is appealable, but to such proceedings as are specified in Part B of the Schedule to the Act, as those in which no appeal lies (Nos. 12-20). It is not, and cannot be, intended to affect the revisional powers of this Court, in suits which are made appealable to the District Court and this Court under part A of the schedule. Section 115 Civil Procedure Code is one of the sections made applicable to suits under the Madras Estates Land Act by Section 192 of the latter. No appeal lies against the Deputy Collector's order sought to be revised : and if, as is urged on plaintiff's behalf, the Deputy Collector has failed to exercise a jurisdiction vested in him by law, this would seem to be a fit case for interference in revision.
3. Reference was made to a recent unreported decision of Mr.-Justice Seshagiri Aiyar (C.R.P. No. 945 of 1916). I have considered this but in the view I take of Section 205, I regret to find myself unable to follow it.
4. It has therefore to be determined whether the Deputy Collector has declined to exercise the jurisdiction vested in him by law. The dispute lay between the widow of the deceased plaintiff on the one hand claiming as his natural heir and his father and brothers claiming under wills, the validity of which was challenged by the widow. The claim of the brothers was dropped as the will they set up did not cover the present matter, so that only that of the father remains. The Deputy Collector held that, as the validity of the will was a very contentious matter, it might be left for settlement in another court and without taking evidence dismissed the claim of the father and added the widow as legal representative of the deceased. The question is whether this was a compliance with Order 22 Rule 5 which says:
5.Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant such question shall be determined by the Court.
6. For the respondent much reliance is placed on an order of the District Collector passed under Section 3(5), Madras Estates Land Act subsequent to the institution of the suit recognising the widow as land-holder in succession to the deceased plaintiff. This order is referred to by the Deputy Collector but the latter makes it quite clear that he does not rely on it as the basis of his own order.
7. Respondent's Vakil contends that it should have been treated by the Deputy Collector as conclusive of the point for determination under Order 22 B.K 5 and that, even if not, a reference to it is sufficient compliance with the provisions of the Rule. I do not think either contention is sound. The Collector's order (subject to determination by a Civil Court, is conclusive as to who is entitled to take subsequent proceedings under the Act, and probably also, in a case of succession like the present one, as to proceedings instituted between the death of the last holder and the passing of the order. But we are concerned here simply with the question of who is entitled to continue proceedings which were legally instituted by the last male holder--in other words who should represent his estate for the purpose of the suit. This person will not necessarily be the same person as is entitled to succeed to his rights as land-holder after his death. As laid down by Seshagiri Aiyar, J. in Sundaram Aiyar v. Kulathu Aiyar I.L.R. (1915) M. 1018 : 29 M.L.J. 505 : 31 I.C. 81.a person can sue to recover rent which has accrued due to him as a land-holder, although his estate as such may have terminated. The right to recover arrears of rent is a part of the estate of the deceased (in the personal sense not in the sense of the definition in Section 3 of the Madras Estates Land Act) and is devisable by will such a devise could not possibly be defeated by an order of the Collector deciding who should succeed to the position of land-holder after his death.
8. The Collector's order is therefore not only not conclusive on the point, but has no bearing on it and cannot be the basis of an order of the court under Order 22 Rule 5 or obviate the necessity for an enquiry thereunder.
9. The words of the Rule are imperative ' shall be determined ' and I think this presupposes an enquiry in which any claimant shall be entitled to adduce evidence to support his claim. No such enquiry has been held here. I am fully alive to the practical objections to compelling a court to conduct a long and complicated enquiry as a preliminary to a suit which may be of little value and importance, and which will not preclude further litigation on the very same question. But that is the law, and it must be followed.
10. I would therefore set aside the order of the Deputy Collector and direct him to enquire and determine who is entitled to be brought on record as legal representative of the deceased plaintiff. Costs to be provided for in the final decree.
11. We have first to deal with the preliminary objection taken by the respondent's vakil that, as the order sought to be revised is that of a Revenue Court no revision lies to the High Court and that if any revision lies at all, it is to the Board of Revenue or to the District Collector under Section 205 of the Estates Land Act.
12. It may be conceded that Section 115 Civil Procedure Code does not of its own force apply to the proceedings of a Revenue Court. The Civil Procedure Code is applicable only to courts of civil jurisdiction see the preamble to the Code--and Section 3 which enumerates the courts which are subordinate to the High Court and over which the High Court is empowerd by Section 115 to exercise revisional jurisdiction does not refer to Revenue Courts. Nevertheless1 Section 192 of the Estates Land Act has made Section 115 applicable to proceedings in Revenue Courts, That section says 'subject to the other provisions of this Act and subject to the following modifications and additions the provisions of the Code of Civil Procedure shall apply to all suits, appeals and other proceedings under this Act so far as they are not inconsistent therewith.' Section 622 of the old code corresponding to Section 115 of the New Code is not one of the excepted sections mentioned in the latter part of Section 192. Section 115, Civil Procedure Code, would therefore seem to apply to proceedings in a Revenue Court under the Estates Land Act.
13. It is however argued for the 1st respondent that Section 205 of that Act properly applies and, as that section specifically provides for the revision of orders like the present one, the jurisdiction of the High Court under Section 115 C.P.C. should be held to be excluded as being in consistent with it, or at any rate in the exercise of our discretion under that section, we should refuse to interfere. In considering this argument we have first to decide whether Section 205 can be applied at all. That section speaks of 'any proceeding before a Revenue Official from whose decision no appeal lies. The question whether Section 205 applies to orders in a rent suit depends upon the meaning we attach to the word 'proceeding' in it. To avoid the serious anamoly of a conflict of decision in the same matter that may otherwise result from the Revenue authorities revising orders passed in rent suits in which the appeal lies from the final decree to the Civil Courts, I think we may well hold that the word 'proceeding' refers to the whole proceeding and not to a part of it or in other words in a rent suit to the whole suit itself and not to any interlocutory orders in it. If this is correct, as an appeal lies from the Revenue Officer's decision in the suit, Section 209 will not apply to proceedings in rent suits and Section 115 C.P.C. stands unaffected.
14. It is argued that this is giving too restricted a meaning to the term 'proceeding' and that we should hold that it is not less extensive in scope than the word 'case' in Section 115 C.P.C. The two words are not analogous and are used in different connections, but even if we assume that whit took place before the Deputy Collector in the present case can be treated as ' a proceeding' by itself, the result so far as the applicability of Section 115 C, P, C. is concerned seems to be the same. It will only make Section 205 also applicable, and we have then a case of concurrent jurisdiction both in the High Court under Section 115 C.P.C. and in the Revenue authorities under Section 205 of the Madras Estates Land Act. There is nothing in Section 205 which expressly excludes the applicability of Section 115 and, as the latter section is expressly made applicable to the Revenue courts by Section 192 we cannot treat it as impliedly abrogated by Section 205 when there is nothing strictly inconsistent between, the two sections.
15. The text question is whether in the view that the Revenue authorities have co-ordinate jurisdiction with the High Court in the matter we should not in the exercise of our discretion leave it to them to revise the order in question, I do not think so. To avoid the anamoly pointed out above it is certainly more convenient and proper that this Court should exercise its jurisdiction in the matter. If a party has already elected his remedy by applying to the Re-venue authorities under Section 205 it may be a question whether * interference under Section 115 G. P. G. should not be refused but such a difficulty does not arise here.
16. The first respondent's Vakil relied on the rulings in C.R.P. No. 945 of 1946, unreported, and in Ram Dayal v. Ramadin I.L.R. (1890) A. 198 in support of his argument, In the former case which is a ruling of a single Judge of this Court the learned Judge says ' the learned Vakil for the petitioner has not been able to point to any section under which he can ask the High Court to revise the proceedings of a Revenue Court,' His attention was not drawn to Section 192 of the Estates Land Act and his ruling therefore loses its authority.
17. The case in Ram Dayal v. Ramadin I.L.R. (1890) A. 198. arose under the North West Provinces Rent Act l2 of 1881, which though similar in some aspects to the Act in this Presidency differs materially on the very point we have to consider here. The ruling was given in a rent case from which there was no appeal to the Civil Courts under Section 189 of Act 12 of 1881 the amount claimed being less than Rs. 100. Furthermore that Act has expressly excepted cases in which appeals lie to the Civil Courts from the decisions of the Revenue Officers under Section 189 from the scope of Section 189 which gives the revisional power to the Board. The ruling therefore cannot be treated as in point here.
18. I therefore agree with my learned brother that the preliminary objection fails. The next point is whether on the merits this is a fit case for our interference in revision. On that point also I agree with my learned brother because, when the Deputy Collector refused to consider the petitioner's claim based on his alleged will and referred to a suit to establish its validity, he acted with material irregulartiy in the exercise of his jurisdiction. The order said to have been passed by the Collector in favour of the 1st respondent under Section 3 Clause 5 of the Estates Land. Act, declaring her to be the land-holder in succession to the deceased plaintiff on which much reliance was placed the respondent before us was not relied on by the Deputy Collector as the basis of his order. That order itself is not before us and we can therefore hardly decide the exact effect of it regarding the arrears of rent sued for in this rent suit 702 of 1917. Prima facie the proper legal representative of the deceased plaintiff in the suit is the man to whom the ownership of the rent has passed on plantiff's death, and the petitioner alleges that he is that person who has become the owner under the will. It may be that if the right to continue the suit in the Revenue Court has passed to the respondent under the order of the Collector under Section 3 Clause 5, she will be the proper legal representative irrespective of the question of the ownership of the amount sued for; just as the holder of a succession certificate for a particular debt will be in a suit for that debt, The rights of the beneficial owner will not be defeated as he could sue the person added as the legal representative, and recover from him. The legal representative, as defined in the Code, Section 2 Clause 11 means a person who, in law represents the estate of the deceased person; so he need not necessarily be the beneficial owner of that estate. But even if that be so the order of the Collector not being before us, it is not possible to say whether it refers to the arrears of rent sued for and confers on the respondent the exclusive right to continue the suit or not. Unless the declaration by the Collector is given retrospective effect, it can scarcely affect the arrears of rent which had already accrued and had been sued for; and there is no reason to suppose that such effect should be given to it. If the Collector's order is to take effect only from its date, petitioner will be the land holder qua the rent sued for, under Section 3 Clause 5, if the claim to collect it under the will is established. See Sundaram Aiyar v. Kulathu Aiyar (1915) 31. I.O. 81. In that case it was held that a person to whom arrears of rent were due was a land-holder though his estate had terminated. If he is such a land-holder, petitioner will be the proper person to continue the suit under the Estates Land Act in the Revenue Court. I therefore agree that the order of the Collector under Section 3 Clause 5 is not shown to affect the question who the proper legal representative of the deceased plaintiff is and for the purpose of deciding it, it seems necessary that the genuineness and the validity of the petitioner's will should be enquired into. I therefore agree in the order propesed by my learned brother.