1. Pralhad Mea executed a mortgage in favour of Mahadeb Shah on 24th March 1923. The due date of payment was 24th March 1925. Mahadeb died leaving a widow. In the year 1927 Mahadeb'a widow brought a suit upon the mortgage against Pralhad. While the suit was pending the plaintiff who is a creditor of Mahadeb brought a suit against Mahadeb's widow for the realisation of a sum. due to him and attached the mortgagee's interest before judgment. On 8th September 1927, Mahadeb's widow died; her legal representatives were not substituted in her suit. On 27th March 1928, the plaintiff in his suit against Mahadeb's widow obtained a decree against the heirs of Mahadeb and on 26th April 1936, in execution of that decree purchased their interest in the mortgage. The plaintiff now brings a fresh suit upon the mortgage. Defendants 1 to 3 are the heirs of the mortgagor Pralhad and the pro forma defendants 4 and 5 are the reversionary heirs of Mahadeb. Defendants 1 to 3 resisted the suit on various grounds. The trial Court dismissed the suit. On appeal this decision has been reversed and the suit has been decreed. The defendants appeal.
2. The only ground now urged on their behalf is that the plaintiff cannot maintain this suit inasmuch as his predecessors-in-interest who are the heirs of the mortgagee were barred from instituting any suit on the mortgage by reason of the provisions of O.22, Rule 9, Civil P.C. This ground was in essence taken in the Courts below though in a some what different form. The contention on behalf of the appellants may be summarised thus: When Mahadeb's widow died pending the mortgage suit the reversioners should have been substituted as her legal representatives. As this was not done within the time stipulated by law the suit abated under Order 22, Rule 3 (2). They could not institute any fresh suit on the same cause of action as Order 22, Rule 9 expressly forbade the institution of such a suit. The plaintiff's purchase took place after the legal representatives had lost their right of suit upon the mortgage. He purchased the mortgagee's interest subject to this disability. He could not therefore maintain this suit upon the mortgage.
3. On behalf of the plaintiff-respondent, the argument is this: Order 22, Rule 9 has no application in this case. The suit was by a widow and when she died the reversioners to the estate of her husband were not her legal representatives. They had a right of suit on the mortgage which was not derived through her and was quite independent of her right. Such right could not be affected by the abatement of her suit. Order 22, Rule 9 prohibited a legal representative of the deceased plaintiff from bringing another suit on the same cause of action. The reversioners were not the legal representatives of Mahadeb's widow, and their cause of action was different from that of the widow. Order 22, Rule 9 therefore could not affect their right of suit and there was nothing to prevent the plaintiffs who derived title from them from suing upon the mortgage. In my opinion, the view urged on behalf of the appellants should prevail. When a plaintiff dies the suit abates for one of two reasons, viz., either because the right to sue does not survive or if the right survives because the plaintiff's legal representatives have not been substituted within the time allowed by law. The abatement for the first reason is under the general law and the abatement for the second reason is under the special provisions of O.22, Civil P. C, which says that the suit will abate if substitution is not made within time. Now where a suit abates because the right to sue does not survive, Order 22, Rule 9 does not apply. That rule runs thus:
When a suit abates or is dismissed under this order no fresh suit shall be brought on the same cause of action.
4. If therefore it can be said that the right to sue on the mortgage did not survive then there would be some substance in the respondent's argument. It is quite clear however that the right to sue in this case did survive. The suit was on a mortgage executed in favour of the widow's husband. Her cause of action was not based on any personal injury to her nor was she suing for the establishment of any right which was personal to her. In such cases the right to sue would not survive. Here the right to sue was first in the husband and on his death it was in his legal representative. The widow's right of suit depended not on any personal right which she possessed independently of her husband but on the fact that she represented her husband's estate. When she died the right of suit to enforce the mortgage certainly did not die with her; the suit could be continued by those persons who represented the estate of her husband. This is the view held by this Court as long ago as 1896 in Prammoyi Chaudhurani v. Preonath Dhur('96) 23 Cal 636. That was a suit by a widow for the recovery of property belonging to her deceased husband. She died pending suit and the reversioners sought to be substituted in her place. The defendants objected on the ground that the right to sue did not survive and that the reversioners were not the legal representatives of the plaintiff. This Court held against the defendants on both the grounds. It held that the right to sue not being a right personal to the widow it survived and that the reversionary heirs of her husband were the legal representatives within the meaning of Section 365, Civil P. C, as it then was inasmuch as the widow was suing as a representative of her husband's estate. There can be no doubt therefore that this suit has abated not because the right to sue did not survive. It has abated under Order 22, Civil P.C., because the legal representatives of the plaintiff have not been substituted in her place. This leads us to the question as to who are her legal representatives.
5. The argument on behalf of the plaintiff -respondent is that the reversionary heirs of Mahadeb are not the legal representatives of Mahadeb's widow as they derive their title to the property not as her heirs but as the heirs of her husband. It is true that the reversioners are not the heirs of Mahadeb's widow but' this does not prevent them from being her legal representatives. The term legal representatives has a wider meaning than the term heir. Section 2 (11), Civil P.C., says:
Legal representative means a person who in law represents the estate of a deceased person . . . and when a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.
6. Now, in this case, the widow when she sued on the mortgage was suing as a person representing her husband's estate, on her death the estate devolved on her husband's reversionary heirs, they are therefore the legal representatives of the widow within the meaning of Section 2 (11) and Order 22, Rule 9, Civil P.C. That a widow suing to recover her husband's property is suing in a representative character and that the reversioners are her legal representatives was the view taken in Prammoyi Chaudhurani v. Preonath Dhur('96) 23 Cal 636 to which I have already refer-red. It is true, that when this case was decided the term 'legal representative' was not denned in the then Civil Procedure Code. I am also not unmindful of the fact that there has been a conflict of judicial decisions as to the meaning of the term. That conflict was sought to be set at rest by providing a definition of the term in Section 2(11) of the Code of 1908; although the definition is not perhaps as clear as it might have been it does in my opinion embody an acceptance of the view expressed in the abovementioned case as to the meaning of the term legal representative.
7. On behalf of the respondent, my attention was drawn to the case in Lachman v. Banai Lal ('31) 18 AIR 1931 Lah 79 decided by the High Court of Lahore where it was held that the abatement of a suit brought by a reversioner to set aside an alienation by a widow does not bar a fresh suit for the same relief by another reversioner as the provisions of Order 22, Rule 9, Civil P. C, would not apply to a case of this description. Bhide J. expressed the view that when the reversioner died his right to sue did not devolve on the next reversioner and that the next reversioner had an independent right of suit. He then goes on to say:
Order 22 is confined to the question of the continuance of the suit by virtue of the devolution of the deceased's 'right to sue' on other persons pending the suit. But there may be cases in which the suit can be continued by other persons who had an independent right to sue on the same cause of action.
8. He then notices the decision of the Judicial Committee of the Privy Council in Venkat Narayana Pillai v. Subbammal ('15) 2 AIR 1915 PC 124 where the Judicial Committee allowed a reversioner to be substituted as appellant in the place of another reversioner who had brought the appeal and had died pending the appeal and distinguishes it. He held the view that the Judicial Committee had allowed this substitution not under Order 22 but on the ground that the reversioner seeking to be substituted could have been joined as a co-plaintiff in the suit under Order 1, Rule 1. He says that the decision of the Privy Council 'implies that the provisions of O.22 as to abatement do not hold good in such a case.'
9. I must respectfully dissent from the view expressed by the High Court of Lahore both as regards their interpretation of Order 22 and also as regards their interpretation of the decision of the Judicial Committee in Venkat Narayana Pillai v. Subbammal ('15) 2 AIR 1915 PC 124. Bhide J. interpreting Order 22 says that it is confined to cases when the deceased's right to sue survives. He seems to make distinction between a case where a deceased's right to sue survives and a case where the right to sue survives. With very great respect I must say that such a distinction does not seem to me to be strictly logical. When a plaintiff dies and the right to sue survives, the right is no longer the plaintiff's right. The plaintiff having died he cannot possess any right; the surviving right is not therefore the deceased's right to sue; what survives is the right of suit and it attaches to the person who under the law would be entitled to enforce the claim upon which the suit was based. If the deceased plaintiff was suing in a representative character the right of suit would devolve on the person upon whom the estate represented by the plaintiff in the suit would devolve on the death of the plaintiff. If the deceased plaintiff was not suing in a representative capacity and the right of suit survived it would devolve upon the person who in law would represent the plaintiff's estate. This seems quite clear from the definition of 'legal representative' in Section 2(11), Civil P.C., read with the provisions of Order 22. In this connexion it is useful to notice the words of Order 22, Rule 1, which are as follows : 'The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.'
10. The words are 'the right to sue' not the 'deceased's right to sue.' 'Wherever the right to sue survives Order 22 will apply. I next turn to the interpretation put upon the Judicial Committee's decision in Venkat Narayana Pillai v. Subbammal ('15) 2 AIR 1915 PC 124. It is true that in this case the Judicial Committee substituted the reversioner in the place of the deceased reversioner on the broader ground that he could have been joined as a party in the suit under Order 1, Rule 1, Civil P. C, but I would indicate with great respect that it is wrong to say that the decision of the Judicial Committee 'implies that the provisions of Order 22 as to abatement' did not apply to the case under consideration. Their Lordships after quoting the words of Order 22, Rules 1 and 3 go on to refer to the definition of legal representative in Section 2(11) and say:
Sub-section 11 was embodied in Act 5 of 1908 with the object of putting in statutory language the result of the decisions of the Indian tribunals on the meaning of the words 'legal representative' but it is not clearly worded and has already been the subject of criticism by at least one of the High Courts in India. The phraseology of Sub-section 11 in their Lordships' opinion is fairly open to the contention that the suit was brought by the deceased plaintiff as representing, in his reversionary right, the estate of the last male owner, and that on his death such right devolved on the petitioner. They think, however, that his right to be substituted in place of the deceased appellant rests on a broader ground.
11. Their Lordships go on to say that contingent reversioners may under Order 1, Rule 1 be joined as plaintiffs in a suit brought by the presumptive reversioner. They add:
If the contingent reversioners may be joined as plaintiffs in the presumptive reversioners' action, it follows that on his death the next presumable reversioner is entitled to continue the suit begun by him. Their Lordships are of opinion that in this case the right to sue survives, and that the petitioner is clearly entitled to the order asked for.
12. In my opinion there can be no scope for the contention that the Lordships were saying that Order 22 did not apply. The order made by the Lordships was clearly under Order 22. The application was for substitution under that Order and the prayer for substitution was granted. The ground for granting the prayer was that the right to sue survived. The presumable reversioner was allowed to continue the appeal, not to bring a fresh appeal or suit. Further their Lordships expressed the view that although the drafting of Section 2, Sub-section 11 was not satisfactory it was reasonable to hold that the presumable reversioner in such a case was the legal representative of the deceased presumptive reversioner. For the reasons given above, I must respectfully dissent from the view taken by the High Court of Lahore. .
13. The decision of the Privy Council in Venkat Narayana Pillai v. Subbammal ('15) 2 AIR 1915 PC 124 indicates that in a case like the present one the reversionary heirs would be the legal representatives of the deceased's widow in respect of the suit instituted by her on the mortgage. In Gandiramaswami v. Pedarnunayya ('16). 3 AIR 1916 Mad 611 which was a decision under the present Code of Civil Procedure, it was held that where a daughter instituted a suit to recover her father's property as his heir and died pending the suit the reversionary heirs of the father were entitled to be substituted in her place to continue the suit on the ground that they were her legal representatives within the meaning of Section 2, Sub-section ll. In Jadubansi Kuer v. Mahpal Singh ('16) 3 AIR 1916 All 34 in similar circumstances the reversioners were substituted on the ground that the daughter who was the original plaintiff represented the estate of her father and the reversioners were her legal representatives under Section 2, Sub-section 11. The decision was based on the dicta of their Lordships referred to by me in the case, in Venkat Narayana Pillai v. Subbammal ('15) 2 AIR 1915 PC 124. In this connexion I would also refer to the Full Bench decision of this Court in Amar Chandra v, Shebak Chand ('07) 34 cal 642. This case was decided before the present Code was enacted. In the old Code the expression legal representative was not defined but the interpretation of the words by Mitra J. at p. 652 is instructive. He says:
The expression 'legal representative' as used in the Code of Civil Procedure is not confined to the heir, executor, or administrator of a deceased person. It has been held to include a person who, though not as heir, executor, administrator, holds an estate in other capacity, such as a son adopted by a widow in relation to the widow or a reversioner taking an estate after the death of a widow & c.
14. This view has been embodied in the present Code in S.2 Sub-section (11). The position in this case therefore is this: Mahadeb's widow sued as a representative of her husband's estate, On her death the right to sue survived. The legal representative of Mahadeb's widow were the pro forma defendants and S. The estate of Mahadeb vested in them. They did not apply to be substituted in time and the suit abated under Order 22, Rule 3 (2). Under Order 22, Rule 9, the legal representatives are debarred from instituting a fresh suit on the mortgage. The plaintiff who is a purchaser of their interest is under the same disability. This suit must therefore fail. I accordingly dismiss the suit and allow the appeal. The defendants will get their costs throughout.