ARUNACHELLAM PILLAY Vs. VELLAYA PILLAY

JUDGEMENT

(1.) This is a suit by a widow (the mother of the last male-owner) for a declaration that an adoption by her son s widow is invalid. The plaintiff died before the suit came on for hearing in the Court of first instance. The reversioners of the last male-holder were made parties as the legal representatives of the deceased plaintiff. 1 he only question argued on the hearing of the appeal was, can they continue the suit? The Court below was of opinion that they could. We are unable to take this view.

(2.) The first question for consideration is does the deceased plaintiff s right to sue survive? (Order XXII, Rule 3). If it does not, no question as to who are the, legal representatives of the deceased plaintiff arises.

(3.) It appears to be well settled that a suit by a reversioner, who sues on his own behalf to set aside an alienatian by a widow abates on the death of the plaintiff and that the right to sue does not survive to the next reversioners. See Sakyahani Ingle Rao Sahib v. Bhavani Bozi Sahib 27 M. 588; Kommeni Chinnaveeraya v. Lakshmi Narasamma 22 M.L.J. 375 : 11 M.L.T. 184 : (1912) 1 M.W.N. 442 : 15 Ind. Cas. 313 In Muthasami Mudaliar v. Masilamani 33 M. 342 : 5 Ind. Cas. 42 : M.L.J. 17 : 20 M.L.J 49 where the suit was held not to abate the plaintiff sued on behalf of all the reversioners as well as on his own behalf. The lower Courts were of opinion, in view of the decision in Chiruvolu Punnomma v. Chiruvolu Perrazu 29 M. 390 1 M.L.T. 183,16 M.L.J. 307 that for the purposes of the question before us, a distinction should be drawn between a suit for a declaration to set aside an aliention and a suit for a declaration to set aside an adoption What was actually held by the Full Bench in Chiruvolu Punnamma v. Chiruvolu Perrazu 29 M. 390, 1 M.L.T. 183,16 M.L.J. 307 was that, in a suit to set aside an adoption, as distinguished from a suit to set aside an alienation, the presumptive reversioner ought, on principle, to be held to represent the remote reversioner, if the matter is decided after a fair trial. The respondent relied on an observation of the Court in Chiruvolu Punnamma v. Chiruvolu Perrazu 29 M. 390 1 M.L.T. 183 : M.L.J. 307 that there was only one cause of action to be sued on. This observation was made with reference to suits to set aside alienations. Notwithstanding this, in Chinnaveeraya v. Lakshmi Narasimrnah 22 M.L.J. 375 : 11 M.L.T. 184 : (1912) 1 M.W.N. 442 : 15 Ind. Cas. 313 the learned Judges held, as we think rightly, that in such a suit by a reversioner on his own behalf to set aside alienation, the right to sue does not survive. All that was decided in Chiruvolu Punnamma v. Chiruvolu Perrazu 29 M. 390 : M.L.T. 183,16 M.L.J. 307 was that, if there had been a fair trial, an adjudication in a suit by a reversioner to set aside an adoption is binding on the other reversioners. This is not inconsistent with the rights of the reversioners being independent rights. The rights remain subject to the rule of law laid down in Chiruvolu Punnamma v. Chiruvolu Perraza 29 M. 390 : M.L.T. 183,16 M.L.J. 307 It is not a question whether there is a cause of action in the reversioners other than the deceased plaintiff, but whether the plaintiff s right to sue survives. In Prem-moyi Chaudhrani v. Preonath 23 C. 636 it was held that the right do sue survives. There, the claim was to recover possession of property. The Calcutta case may, perhaps, be distinguished on this ground. If it cannot, it apparently cannot he reconciled with the Madras decisions to which we have referred.