NARAYAN PRASAD RUIA Vs. MUTUNI KOHAIN

JUDGEMENT

(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. 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.