Bijayesh Mukherji, J.
1. The only point which I have been called upon to decide, in this rule under Article 227 of the Constitution, at the instance of the landlord in proceedings for eviction of thika tenants, is: in the lis initiated by Naravan Prosad Ruia as karta of the joint Mitakshara family, consisting of himself and his three minor sons: (1) Mahendra Kumar Ruia, (2) Su-rendra Kumar Ruia, and (3) Mahesh Ku-mar Ruia, just as the cause-title of the application under Section 5 of the Calcutta Thika Tenancy Act, 2 of 1949, is, Surendra Kumar Ruia having died on February 2, 1965, during the carriage of the lis, and his mother, the only heir, having not been substituted in her place to this day, does the lis as a whole abate?
2. The Thika Controller solves the problem by expunging the name of the deceased: vide his order No. 34 dated October 8, 1966. The appellate Judge takes a different view on this 'knotty point', as he puts it, governs himself by the Full Bench decision of the Kerala High Court in Venkiteswara Pai Ram Pai v. Luis. : AIR1964Ker125 (FB), and finds that the lis for eviction is not maintainable In absence of the heir of the deceased Surendra Kumar Ruia. Hence this rule.
3. Mr. Apurbadhan Mukherji, appearing in support of the rule, contends that the lis by the karta is too good, death of this member or that of the undivided family being of no consequence, because the karta still remains the karta. Had the old Hindu Law remained static, such contention would have had perhaps no answer. But it has not remained so. On the contrary, a serious inroad has been made into the preserve of the old Hindu Law by the Hindu Succession Act, 30 of 1956, which Mr. Padmabindu Chatterjee, appearing for the opposite party, rightly refers me to. What calls attention is the proviso to Section 6 of the Hindu Succession Act, read with Explanation I thereto. Translated to the facts here, these provisions work out as under :
Surendra Kumar Ruia, a Hindu Mitakshara coparcener, dies, leaving behind him surviving his mother, a female relative specified in Class I of the Schedule to the Act, and, therefore his heir too in Class I. More, the interest of such a one, Surendra Kumar Ruia, a Hindu Mitakshara Coparcener, shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death.
4. Such then is the effect, by the con-joint operation of the proviso and Explanation I to Section 6. What is seen, therefore, is a notional partition, coupled with devolution of such notionally partitioned property upon Surendra Kumar Ruia's mother. What remains then of Narayan Prasad Ruia as the karta? A karta a joint family property is quite an understandable concept. But a karta for a divided property, of property partitioned, notionally though, appears to be incomprehensible. So, the old karta theory cannot help matters forward for the petitioner before me, and Narayan Prasad Ruia as karta cannot represent his deceased son's mother and necessarily his wife upon whom devolves the share of the property after partition. The very nexus of the joint-family property is gone. A conclusion as this is to be regretted, but cannot perhaps be helped.
5. The Full Bench decision of the Kerala High Court, the learned Appellate Judge governs himself by, and Mr. Padmabindu Chatterjee refers me to, lays down the law as such too. In a suit for specific performance of a contract for sale of land belonging to a Hindu joint family against the karta and two members thereof, one member dies, during the carriage of the suit and after the Hindu Succession Act, leaving behind him surviving his widow, two daughters and two sons, who are not impleaded, and deliberately too, inside of the prescribed time, on the ground that the karta defendant alone is competent to represent the entire joint family in the suit, just what Mr. Mukherji contends before me. Madhavan Nair, J., speaking for the Full Bench, sees no merit in such an approach, the share in the coparcenary property being deemed to have been partitioned out immediately before such a one's death and to have devolved on his heirs: the widow, the daughters and the sons, and concludes:
'That share, being no more part of the coparcenary property, is not within the competence of the first defendant as the karta of the joint family to represent in the suit.'
I adopt this, if I may, with respect. And this appears to be the complete answer to Mr. Mukherji's contention.
6. Mr. Chatterjee also refers me to Satrughan Isser v. Sabujpari : 1SCR7 , which points out the fundamental changes made in the concept of a coparcenary by the Hindu Women's Rights to Property Act, 18 of 1937, as amended in 1938, and Nanigopal Mukherji v. Panchanan Mukherji, (1954) 59 Cal WN 304, where it is held that the Court's power to grant exemption under Order 22, Rule 4, Sub-rule (4), of the Civil Procedure Code, as amended by our Court, can be exercised only before the suit has abated. These decisions do not reach the case in hand. And I leave them at that.
7. In the result, the rule fails and dostand discharged, but without costs.