S. Ramachandra Iyer, C.J.
(1) This appeal is filed under Cl. 15 of the Letters Patent against the judgment of Veeraswami J. It arises out of a suit for declaration of title to and recovery of possession of the suit properties by one Raghupati Iyer, whose legal representatives are respondents to this appeal. The properties originally belonged to one Ramakrishna Iyer, who died in April 1903, leaving behind him his widow Ramammal and a son. The son survived his father only for about 6 months and on his death, his mother became entitled to the properties as his heir. While she was in possession thereof, Ramammal granted a lease of the suit properties to the appellant who later denied her title to them. She instituted O. S. 440 of 1952 on the file of the District Munsif Court, Tirupatur for their recovery of possession. During the pendency of the suit, she effected a surrender of her estate by means of a registered document on 6-9-1954 in favour of Raghupati Iyer. It is not disputed that the surrender was complete and was made to the nearest reversioner who would then be entitled to succeed to the estate of Ramakrishna Iyer.
(2) Raghupati Iyer who could have come on record and continued the suit instituted by the widow against the appellant, namely O. S. 440 of 1952 did not do so. the suit was, therefore, dismissed for non-prosecution on 6-5-1955. Even some months earlier on 5-2-1955, he had filed a suit out of which the appeal arises for the reliefs mentioned already. The trial court, as well as the appellate court, took the view that although the plaintiff obtained a valid title to the properties by means of a surrender from Ramammal, the suit was barred by the provisions of O. XXII rule 9(1) C. P. C. in as much the previous suit had been dismissed for non-production. On second appeal to this court, Veeraswami J. did not accept that view as correct. The learned Judge held that the provisions of O. XXII rule 3 will apply only to a case of natural death of the plaintiff and not to a case of surrender which at best could amount only to civil death, that is, death by reason of affection created by law. Consequently it was held that the provisions of sub-rule 1 of rule 9 of O. XXII C. P. C. would not be attracted. this conclusion has been challenged before us on behalf of the appellant against whom the learned Judge has passed a decree for possession.
(3) Mr. S. V. Rammer Iyengar who appeared on behalf of the tenant submitted that there could in law be no difference between a case of natural death of the plaintiff and one where under the law she is deemed civilly to be dead and that therefore O. XXII Rule 3 and 9 must apply with equal force to them. The first part of the argument, broadly put as it is, really amounts to this: namely, a legal fiction will have within the ambit of its operation the same effect as the real state of things. That can admit of no doubt. Again it is well settled that so far as the reversioner's title is concerned, there is no difference between a case where he obtains the property on the death of the widow of the last male holder and one where he does so son a surrender by her. In either case he succeeds to the last male-holder as the widow's estate had terminated. the nature of a Hindu reversioner's interest under the ordinary Hindu law and acceleration of the same by the effacement of the widow have been discussed by the Supreme Court in Natvarlal Punjabhai v. Dadubhai Manubhai, : 1SCR339 . Mukherjea J. discussing the true theory behind a surrender observed:
'In the Hindu law, on the other hand, the widow, so long as she is alive, full represents her husband's estate, though her powers of alienation are curtailed and the property after her death goes not to her but to her husband's heirs. The presumptive reversioner has got no interest in the property during the lifetime of the widow. He has a mere chance of succession which may not materialise at all. He can succeed to the property at any particular time only if the widow dies at that very moment. the whole doctrine of surrender is based upon this analogy or legal fiction of the widow's death. The widow's estate is an interposed limitation or obstruction which prevents or impedes the course of succession in favour of the heirs of her husband. It is open to the widow by a voluntary act of her own to remove this obstruction and efface herself from the husband's estate altogether. If she does that the consequence is the same as if she died a natural death and the next heirs of her husband then living step in at once under the ordinary rule of inheritance.'
But what we have to consider in the present case is not whether the legal consequences brought about by the civil death of widow will be the same as these consequent on her material death, but whether the provisions of O. XXII rule 9 C. P. C. will apply to the case of a reversioner succeeding. Veeraswami J. has observed that O. XXII rule 5 will apply only to cases of succession brought about by the natural death of the plaintiff. We agree. But the further view of the learned Judge that because title secured by a surrender is the result of merely a civil death the provisions of that rule will not apply is apt to mislead. In our opinion, no distinction can be rested between a case of the operation of a legal fiction as to death of a party and the real death of the party in the matter of interpretation of the provisions of O. XXII C. P. C. the true position is that Rule 3 of that order con not apply to the case of devolution of property on the death of a person holding a Hindu Woman's estate therein, whether such death is the natural death or a civil death. If rule 3 cannot apply, Rule 9(1) cannot operate, if there be default in taking steps to continue the suit. It is clear from the very terms of O. XXII rule 3 C. P. C. that the right to sue must survive to the legal representatives for the deceased before the former can be brought on record. In the case of a reversioner succeeding after a widow, the case is not one where he succeeds as the heir of the widow; he becomes entitled to the property of the last male-holder in his own right as the heir of such owner and not as the legal representative of the widow, the interim owner.
A Hindu widow does completely represent her husband's estate as long as the property remains in her hands. But that is different from saying that she is a full owner. Any judgment obtained against her or any compromise entered into by her will be binding on the reversioner so long as those proceedings are proved to be conducted bona fide. In other words so long as she acts bona fide, she can completely represent the estate of her husband. Therefore, when she brings a suit for recovery of possession of the properties belonging to her husband's estate, she can be said to act in a representative capacity with respect to the estate. In a widow's suit with respect to her husband's estate, though she sues as a owner, she can also be deemed to have instituted it as a representative of the estate. If she were to die pending the suit, the reversioner who succeeds to the property, can certainly step in and prosecute the suit as a person entitled to the estate which was till then represented by the widow. In such a case, the appropriate rule will be O. XXII Rule 10 and not Rule 3. In cases falling under rule 10, it will be optional for the party seeking to continue the suit to come on record and prosecute it; it will also be a mater of discretion for the court to permit him to come on record or not. Failure to come on record in the case of devolution of interest as contemplated by Rule 10 cannot, therefore, attract the provisions of Rule 9 for more reasons than one, namely (1) the person who obtains the interest on the devolution taking place is not a legal representative of the deceased and (2) he has no absolute right to come on record and prosecute the suit.
(4) Rule 9(1) states 'Where as suit abates or is dismissed under this order (O. XXII) no fresh suit shall be brought on the same cause of action'.
(5) The terms of the rule furnish another reason why it should not be applied to the case of a reversioner's succession. What the rule prohibits is the institution of a suit on the same cause of action. In the case of a reversioner succeeding to the estate of the last make-holder, his cause of action arises only after succession opens in his favour. Article 141 of the Indian Limitation Act of 1908 recognises the Principe that he would have the right to recover possession of the property within 12 years after the death of the widow. Even in a case where a person acquires title by adverse possession as against the widow, it has been held that what he obtained would be only the widow's interesting the property and it would be competent for the reversioner who succeeds on her death to recover possession of the property within a period of 12 years referred to above. Again in the present case, the cause of action on the basis of which Ramammal brought the suit was a denial on the part of the appellant of her title to the property. that can hardly amount to the same thing as the denial of the reversioner's right to recover the property when succession falls. therefore, the cause of action for the widow's suit, against the appellant was entirely different from the reversioner's suit to recover possession of the property after the surrender had been effected in his favour. Rule 9 prohibits a fresh suit on the same cause of action which had either abated or had been dismissed on account of the death of Ramammal, the cause of action for Raghupati Iyer's suit being different from hers, his suit cannot be held to be barred. We are, therefore, of the opinion, that the provisions of O. XXII rule 9(1) C. P. C. will not apply to the present case. the appeal fails and is dismissed with costs.
(6) Appeal dismissed.