1. This second appeal raises an interesting question as to the scope of Order XXII, Rule 9, C. P. Code. The legal representatives of the plaintiff are the appellants. The suit was for a declaration of the plaintiff's title to the suit properties and for recovery of possession thereof from the respondent. The properties admittedly belonged originally to one Ramakrishna Aiyar, who died in, April 1903, leaving his son Ramachandran and widow Ramammal. Ramachandran died in October 1903, and his mother, as his heir, succeeded to the suit properties. Ramammal instituted O.S. No. 440 of 1952 on the file of the Court of the District Munsif, Tirupattur, against the respondent for a declaration of her title to the suit properties, and for recovery of possession thereof. She claimed that the respondent was her lessee and was denying her title by setting up adverse possession. While this suit was pending, she surrendered the suit properties to the plaintiff in the present suit on 6th September 1954. O.S. No. 440 of 1952, for some reason, was not pursued by the present plaintiff with the result it was dismissed on 6th September 1955, for non-prosecution. The suit out of which this second appeal arises was instituted on 5th February, 1955. This suit proceeded on the basis that the respondent was a lessee and the plaintiff as a surrender was entitled to evict him. The trial Court took the view, the lower appellate Court agreeing with it, that the suit was barred under Order XXI. Rule 9, C. P. Code and dismissed it. On the other issues, both the Courts below found that the surrender was true, that the plaintiff had title to the suit properties and that the defendant was a tenant liable to be otherwise evicted. The only question in this second appeal is, therefore, whether the view of the Courts below as to the scope of; the said rule is correct.
2. Sub-rule (1) of Rule 3 of Order XXII of the C. P. Code provides for the procedure in case of death of one of several plaintiffs or of sole plaintiff. Sub-rule (2) of the same rule indicates the effect of failure to take steps under the first sub-rule. If on the death of a plaintiff the cause survives and the legal representatives are not brought on record by an application made within the prescribed period of limitation, the suit shall abate. In such a case, Rule 9(l) raises a bar to a fresh suit on the same cause of action. Sub-rule (2) of this rule provides for setting aside the abatement by an application, on sufficient cause being shown for not taking steps within the period of limitation. The Courts below thought that a surrender by a limited owner like Ramammal amounted to a civil death and to such a case Rule 3 of Order XXII will be attracted. Apparently their view was that death within the meaning of that rule would include a civil death, so to speak. In my opinion, this view of the rule is not warranted. No one will suggest that a widow who surrenders her limited estate under the Hindu law suffers thereby a physical death. But, as under her personal law, surrender has the effect of accelerating succession, and succession can open only on the death of the limited over, the fiction has been introduced by Courts that by surrender succession is accelerated as if she suffered a death. In other words, it is an assumed death, an abstraction or fiction of the law. That is what the Supreme Court pointed out in Natvarlal v. Dadubhai, : 1SCR339 . It was there observed :
'Nobody says that the surrendering widow actually dies. It is a fiction of law pure and simple.........'
It was also mentioned by the Supreme Court that the law of surrender by a Hindu widow, as it stands at present, is for the most part, judge-made law, though it may not be quite correct to say that there is absolutely no textual authority upon which the doctrine could be founded, at least, impliedly.
3. There is no indication in Order XXII, Rule 3 of the C. P. Code that it includes or comprehends such a fictional death. This rule has application not only to Hindus but to all communities, whatever their personal law may be. There is nothing like a surrender of a limited estate by a widow and a civil death suffered thereby under the Muhammadan law or the principles of law applicable to Christians The rule only speaks of death, and it appears to me, death in a physical sense, not. as an abstraction or in a fictional sense. In the case of a surrender by a Hindu widow, there is nothing more than a self-effacement leaving a widow physically alive, so that it would be quite inappropriate to say that she died actually by a surrender. The language in Sub-rule (1) of Rule 3, to my mind, can only apply to physical death of a plaintiff. Article 176 of the Limitation Act prescribes limitation for an application to have the legal representatives of 'a deceased plaintiff' made a party. The period of 90 days which is the limitation provided for, commences from the date of the death of the deceased plaintiff. Article 177 prescribes the same period of limitation for an application to bring the legal representatives of a deceased defendant. These two articles, in my opinion, unmistakably refer to physical death. Also I think the surrendered from a limited owner like a Hindu widow can hardly be described as her legal representative. He takes the property, not as the heir of the widow, but as the heir of the last male owner. Article 141 of the Limitation Act provides limitation for a suit by a Hindu or a Muhammadan entitled to possession of immoveable property on the death of a Hindu or Muhammadan female. The period of limitation provided in that case commences when the female dies. Here also, death, as it seems to me, should be understood in a physical sense. When Sub-rule (2) of Rule 3 of Order XXII of the C. P. Code refers to the limitation prescribed under the Limitation Act, it stands to reason that 'death' in the rule has the same meaning as in Arts. 176 and 177 as well as 141 of the Limitation Act.
4. Reliance has been placed, on behalf of the respondent in : 1SCR339 for a contention that when a widow surrenders, she more or less suffers a real death. It is difficult to imagine a more hopeless argument. As a matter of fact the Supreme Court has, in more than one place, made it clear that surrender by a Hindu widow amounts nothing more than a self-effacement and in that sense, a fictional death.
5. It follows therefore that the Courts below were wrong in holding that the suit was barred under Order XXII, Rule 9 of the C. P. Code. The second appeal is allowed. The judgments and decrees of both the Courts below are set aside. The suit will stand decreed with costs, of the appellants throughout. Leave granted.