ELLAPPAN Vs. T R SITARAMIAH

JUDGEMENT

(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, Mukherjea J. discussing the true theory behind a surrender observed: