1. This is a suit by the widow (the mother of the last male owner) for a declaration that an adoption by her son's widow is invalid. The plaintiff died before the suit came on for hearing in the court of first instance. Reversioners of the last male owner were made parties as the legal representatives of the deceased plaintiff. The only question argued on the hearing of the appeal was__Can they continue the suit? The courts below were of opinion that they could. We are unable to take this view.
2. The first question for consideration is does the deceased plaintiff's right to sue survive (Order XXII Rule 3)? If it does not, no question as to who are the legal representatives of the deceased plaintiff arises.
3. It appears to be well settled that a suit by a reversioner who sues on his own behalf to set aside an alienation by a widow abates on the death of plaintiff and that the right to sue does not survive to the next reversioners (see Sakyahani high Rao Baheb v. Bhavani Bozi Sacheb I.L.R. (1904) M. 588, Chinnct Veerayya v. Laleshnti Narasamma I.L.R. (1912) M.L.J. 375. In Muthusawmy Mudaliar v. Masilamani I.L.R. (1909) M. 342, where the suit was held not to abate the plaintiff sued on behalf of all the reversioners as well as on his owvi behalf. The Lower Courts were of opinion in view of the decision in Chiruvolu Ponnamma v. Chiruvolu Perraju I.L.R. (1905) M. 390 that for the purposes of the question before us a distinction should be drawn between a suit for a declaration to set aside an alienation and a suit for a declaration to set aside an adoption. What was actually held by the Full Bench in Chiruvolu Ponnamma v. Chiruvolu Perraju I.L.R. (1905) M. 390, was that in a suit to set aside an adoption as distinguished from the suit to set aside an alienation the presumptive reversioner ought on principle to be held to represent the remote reversioner if the matter is decided after a fair trial. The respondent relied on observations of the court in Chiruvolu Ponnamma v.Chiruvolu Perraju I.L.R. (1905) M. 390', that there was only one cause of action to be sued on. This observation was made with reference to suits to set aside alienations. Notwithstanding this in Chinna Veerayya v. Lakshmi Narasamma I.L.R. (1912) M.L.J. 375, the learned judges held as we think rightly that in a suit by reversioner on his own behalf to set aside an alienation the right to sue does not survive. All that was decided in Chiruvolu Ponnamma v. Chiruvolu Perraju I.L.R. (1905) M. 390 was that if there had been a fair trial an adjudication in a suit made by a reversioner to set aside an adoption is binding on the other reversioners. This is not inconsistent with the rights of the reversioners being independent rights. Their rights remain subject to the rule of law laid down in Chiruvolu Ponnamma v. Chiruvolu Perraju I.L.R. (1905) M. 390. It is not a question whether there is a cause of action in the reversioners other than the deceased plaintiff but whether the plaintiff's right to sue survives. In Premmoyi Chowdrani v. Preonath Dhurs I.L.R. (1896) C. 636, it was held that the right to sue survives. There the claim was to recover possession of property. The Calcutta case may perhaps be distinguished on this ground. If it cannot, it apparently cannot be reconciled with the Madras decisions to which we have referred.
4. For the purposes of this question it seems to us that no distinction should be drawn between suits to set aside an adoption and suits to set aside an alienation and we are of opinion the plaintiffs' rights to sue did not survive.
5. It seems desirable to deal with the further question. Assuming that the cause of action survives are the parties who have been added as plaintiffs--the reversioners of the last male owner--the legal representatives of the deceased plaintiff? In the strict sense of the words, of course they are not. The meaning of the words however has been extended by judicial decisions and in the Code of 1908 a definition of the words was for the first time introduced apparently with the object of embodying the effect of the judicial decisions. The definition is contained in section (2) ii and is as follows:-' Legal representative ' means a person who in law represents the estate of a deceased person and includes any 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 suing or sued.'
6. Can the words 'deceased person' in the present-case be construed as meaning not the deceased plaintiff but the last male owner? We think the deceased person is the late plaintiff and although in a sense the deceased represented the reversioners it cannot be said that the reversioners of the last male owner in law represent the estate of the deceased plaintiff. Then assuming that the deceased plaintiff is suing in a representative character can it be said that the parties added as plaintiffs are the persons on whom the estate devolves on the death of the deceased plaintiff t Here 'estate' apparently means the estate of the last male owner. We think ' devolves' means 'has devolved' and not would in the course of time devolve in accordance with the time of succession on the parties who have been added as plaintiff, if they were alive.
7. In the present case the estate will not devolve on the parties who have been added as plaintiff till after the death of the son's widow.
8. In Rikhai Rai v. Sheo Pijan Singh I.L.R. (1910) A. 15 which was relied on by the respondents the suit was for possession and the estate devolved on the death of the original plaintiff on the reversioners who were added as parties.
9. We must set aside the decrees of the Courts below and dismiss the suit with costs throughout.