GHULAM RASHID Vs. MUHAMMAD ABDUL RAB

JUDGEMENT

(1.) This is a first appeal from a decree of the Additional Civil Judge of Ballia. It raises a point of some little interest. The facts are comparatively simple. The plaintiff, Sheikh Ghulam Rashid, is the son of one Abdul Waheed who died on 15th March 1921 possessed of quite a substantial estate. Abdul Waheed left him surviving the plaintiff and four daughters. We are not concerned with the daughters in this suit, as they are not parties to it. At the date of his father's death, Sheikh Ghulam Rashid was a little boy of about six and ultimately he attained his majority on 2 January, 1933. Abdul Waheed, the plaintiff's father, had three brothers including one, I think he was the eldest brother, called Sheikh Abdul Ahad, who was defendant 1 to the suit and remained in that capacity until he died. Sheikh Abdul Ahad was actually the senior uncle of the plaintiff and it is common ground that he took possession, on the plaintiff's behalf, of the property comprising Abdul Waheed's estate, or at any rate of that part of it which represented the plaintiff's share. That is pleaded in para. 2 of the plaint in this language: After the death of the plaintiff's father, defendant 1, as own uncle (father's brother) and guardian of the plaintiff entered into possession of all the properties mentioned at the foot of the plaint. Since then He has bean in possession thereof and has been managing the same.

(2.) That went on until the plaintiff attained his majority on 2 January, 1933 and, indeed, beyond that, until, I think, about the mon December, 1934, when steps were taken to substitute the plaintiff's own name as the owner of the properties. That was the position in November 1935, when this suit was started by the plaintiff against his uncle, Sheikh Abdul Ahad. It will, perhaps, be convenient to explain at this point that the other four defendants, who were original defendants and still are defendants to the suit, are four persons who, the plaintiff alleged, had been employed during his minority by Sheikh Abdul Ahad to collect the rents and profits of the properties. Prom para. 5 of the plaint, it appears that they were added in that other mysterious capacity which is known as that of a pro forma defendant. On 1 August 1936 Sheikh Abdul Ahad died and at some date, which is not given, his two daughters and two of his nephews were substituted as defendants in his place. It is that circumstance, which has given rise to the question which is now in debate before me. Presumably that substitution was made under Order 22, Rule 4 of Schedule l, Civil P.C. The persons substituted were, of course, added as legal representatives of Abdul Ahad, deceased. I cannot help feeling that the question which has now arisen should have been canvassed at that stage of the proceedings, rather than later, because, unless the cause of action survived the death of Sheikh Abdul Ahad it seems difficult to justify the substitution, even as legal representatives.

(3.) To complete the history of the matter, the suit came on for hearing in due course before the Additional Civil Judge of Ballia. It was then that the point was taken for the first time that the suit was demurrable as against those defendants who had been substituted for Sheikh Abdul Ahad, deceased, upon the ground that no cause of action had survived as against them. Thereupon,. the learned Judge framed an additional issue, issue 11, in these words : "Is the suit for accounts maintainable against the heirs of the deceased?" This, in a very short judgment, he answered by finding first that the plaint had never since the beginning disclosed any cause of action against those four defendants who were described as pro forma defendants, and secondly - and this was the only matter really raised by the issue-that no cause of action survived the death of Sheikh Abdul Ahad, deceased, against the defendants who had been substituted after his death for him as defendants as his legal representatives. And, accordingly, the learned Judge dismissed the suit. The question is whether, on the death of Sheikh Abdul Ahad, the plaintiff's right to sue survived. Order 22, Rule 1 of Schedule 1, Civil P.C., is in these words: "The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives."