KANAILAL MITRA Vs. PANNASASHI MITRA

JUDGEMENT

(1.) One Gagan Chandra Mitra, a lunatic, instituted a suit on 5-10-1945 against his wife Pannasashi Mitra for a declaration of his title to the properties described in the plaint, for confirmation of possession and also for a permanent injunction restraining his wife from selling the properties. The plaintiff's case was that though the properties had been purchased in the name of his wife they really belonged to him and were purchased with his own money and that his wife was really his benamidar. In the plaint the plaintiff also alleged that though the defendant was his lawfully married wife she became unchaste and permanently left the plaintiff's protection in the year 1942. The defendant in her written statement denied the material allegations in the plaint and alleged that she had left her husband's protection on account of ill-treatment and cruelty. On 28-6-1951, the plaintiff died and on 27-7-1951 the petitioner before us named Kanailal Mitra applied for getting himself substituted in the place of the deceased plaintiff on the allegation that he being the plaintiff's sole surviving brother was his only heir and that the defendant Pannasashi being unchaste was excluded from inheritance. This application was opposed by the widow Pannasashi on the ground that under the Hindu Women's Right to Property Act, namely, Act 18 of 1937 as amended by Act 11 of 1938, unchastity is not a ground of exclusion from inheritance and therefore she was a preferential heir. The objection of the widow has been upheld by the learned Subordinate Judge by his order dated 13-3-1954 and the application filed by the petitioner Kanailal Mitra has been rejected and as a result of the rejection of the petitioner's application the learned Subordinate Judge has come to the conclusion that the interest of the plaintiff has merged in the interest of the defendant with the result that the suit has abated automatically. Against this order of 13-3-1954, Kanailal Mitra, the applicant for substitution, has obtained the present Rule.

(2.) Mr. Ghose, appearing for the opposite party, has raised a preliminary objection to the maintainability of the application for revision on the ground that the order against which the petitioner has obtained this Rule is appealable and therefore no revision lies. For this proposition, he has relied upon a decision of a single Judge, of the Allahabad High Court in the case of -- "Brif Jivanlal v. Shiam Lal'. In that case it was held that in determining whether an order of abatement is open to appeal a distinction should be drawn between those cases of abatement where it is due to the failure of the heirs being brought on the record within the period allowed by law or due to the Court deciding that a particular applicant is not the legal representative and those cases where the abatement is due to the Court deciding that the right to sue does not survive and it was further held that in the latter class of cases there is a decree which conclusively determines the rights of the parties with a right of appeal. In the case before us, however, the learned Subordinate Judge has in the first place rejected the petitioner's application for substitution and as a result thereof he has come to this conclusion: "The application failing the suit abates automatically. I order accordingly". The order before us is a combination of an order under Order 22, Rule 5 and Order 22, Rule 3 of the Code of Civil Procedure. The order of abatement passed by the learned Subordinate Judge is dependent upon his decision that the petitioner is not entitled to be substituted as the legal representative of the deceased plaintiff. In our opinion, the order of the learned Subordinate Judge, in so far as it decided the question of the right of the petitioner to get himself substituted in the place of the deceased plaintiff, is an order under Order 22, Rule 5 and the petitioner has no right of appeal against that order and as such the application for revision under Section 115, Civil P. C., is maintainable. The preliminary point urged by Mr. Chose therefore is overruled.

(3.) Before proceeding to dispose of the Rule on the merits, we must observe that the learned Subordinate Judge has not taken any evidence on the question whether Pannasashi, the widow of the plaintiff, was in fact unchaste nor has he recorded any finding on that point. He has proceeded on the footing that assuming Pannasashi was unchaste she was still entitled to inherit under the Hindu Women's Right to Property Act and for this proposition he has relied upon the decision of Chunder J. in the case of -- 'Surja Kumar v. Manmatha Nath'. The question of law decided by the learned Subordinate Judge arises for consideration only upon a finding of fact to the effect that Pannashashi was in fact unchaste. As a result of the omission of the learned Subordinate Judge to come to a finding on this question of fact, we cannot decide this question finally in this Rule and, we must have to send the case back to him if we disagree with the proposition of law decided by him. This is extremely unsatisfactory and we desire to point out that if a decision on a question of law depends upon a question of fact, the question of fact must be decided first in order to avoid the necessity of an order of remand.