1. In my judgment this appeal succeeds. The plaintiff brought his suit asking for relief in the alternative: first of all, for declaration of title and possession of 200 bighas of land in Mauza Jaba in the Asansol District and alternatively, for judgment for Rs. 7,400 or, in default compensation. His case was that Rani. Shyama Sundari Debi had given him a lease for 999 years of this property in Mauza Jaba and had received from him selami of Rs. 6,000 and nazar of Rs. 1,000 on or about 29th July 1920, that he was resisted by certain persons, defendants 2 and 3 in the suit, and had not obtained possession of the land demised and that he was entitled to a decree either for possession or else for recovery from the lady or her estate the sum of Rs. 7,400 which he had paid on that account. The suit itself was brought on 12th July 1922 and the lessor, Rani Shyama Sundari Debi, died on 18th February 1927 pending the suit. Now, the heir of the lady's stridhan and also the person who was the reversioner after the lady's Hindu widows' estate to her husband was defendant 2, Raja Promotha Nath Malia, he being the son of her husband's brother and when the lady died it was, of course, quite proper that her heir should represent her estate. On 19th July 1927 however the plaintiff made an application to the Court saying that the present appellant Babu Kanai Lal Misra
has been possessing the Rani's moveable properties. Hence, for the purpose of meeting all sorts of objections, it is necessary to include the said Kanai Lal Babu also in the category of the defendants
and upon that an order was made on 19th July 1927:
Plaintiff applies for substituting Kanai Lal of the address and particulars as mentioned in the petition in place of the deceased defendant 1. Be it so and the petition be treated as part of the plaint.
2. Upon that I desire to say that it seems to me that this is a signal example of a very bad practice in the lower Court. If it is desirable that some person who is not an heir ex concessis of a deceased defendant should be substituted in his stead, it seems to me to be very necessary not merely that the name of the person should be substituted or added in the cause title but that the plaint should also be properly amended making the allegations according to which the plaintiff claims to treat the added defendant as in some way responsible for the debt of the deceased defendant; and this method of treating the petition as part of the plaint is particularly objectionable because a petition is generally drawn very differently from a proper plaint. In the present case, this petition discloses no cause of action against the person proposed to be added except that it says that he
has been possessing her moveable properties, Hence, for the purpose of meeting all sorts of objections, it is necessary to include the said Kanai Lal Babu also in the category of the defendants.
3. Now, in that unfortunate state of things, the appellant filed a written statement. He stated that the plaintiff had no cause of action against him and that he was not concerned with the present suit. He further stated that:
the late Rani made a gift of some of her moveable stridhan properties to this defendant; but, for that reason, this defendant cannot by any means be liable for the money mentioned by the plaintiff.
4. The issues in the suit were settled long before. No issue was framed at the hearing with reference to this appellant and no reference to the appellant appears to have been made in the judgment until at the very end where the learned Judge says this:
The decree money will be realized from the assets of the deceased defendant 1 Shyama Sundari in the hands of her representatives defendants 1ka to 1 gha,
thereby holding on some facts or other which do not appear to have been considered that for the purposes of the suit to establish a debt due by the deceased defendant this appellant is a legal representative. Of course, if he is a legal representative he would be liable only to the extent of the assets in his hands. In this case, the appellant has been held liable with certain other people. On what ground he has been added I do not know. Even if he is a legal representative at all, he can only be so added because he has intermeddled with the estate of Shyama Sundari which she left at her death. No facts whatever are to be discovered from the judgment in support of any such case: there is neither pleading, issue or evidence nor discussion of the matter. Now, before us it has been pointed out that the plaintiff put in evidence two deeds of gift executed by Rani Shyama Sundari Debi in favour of the appellant: one on 16th January 1919 and the other on 28th April 1920. These are deeds of gift relating to immovable properties. They are, I imagine, no evidence at all that the lady did not also make a gift of moveables. In addition to them certain documents were put in evidence which merely show, if they are evidence at all against the appellant, that he at various times claimed that by a deed of agreement, according to one document registered on 20th July 1922, he became entitled to certain moveables that at that time belonged to the Rani. The lady did not die till 18th February 1927. That, in no way, assists the plaintiff. The position is, as far as I can see, that, even assuming that it was competent to a person who sought to establish a debt due from the estate of the lady to raise in the same suit the question as to whether or not a stranger in addition to her heirs had interfered with her estate after her death, there is no evidence to show that this appellant had at any time interfered with anything that at the date of her death was part of her estate. In my judgment the decree, in so far as it is passed against the present appellant, is entirely without foundation and must be reversed. The appellant must get the costs of this appeal and of the suit.
5. I agree.