ISHWARLAL LAXMICHAND PATEL Vs. KUBER MOHAN LAWAR

JUDGEMENT

(1.) The suit out of which this appeal arises was filed by the plaintiff for an injunction; against the defendants to secure certain easement rights and various other amenities for his house, The suit was dismissed with costs and the plaintiff appealed to the District Court. The appeal was admitted and notice was duly served on the respondents. The appellant died on October 2, 1940, and the respondents appeared through a pleader on October 9, 1940. Thereafter, within the period of limitation allowed by law, the son of the deceased appellant made an application to be brought on the record as his legal representative. His application was granted and his name was placed on the record as the legal representative of the deceased appellant. On the date of the hearing, which came off about ten months later, it was contended for the respondents that the widow of the deceased appellant was also one of his heirs under the Hindu Women's Rights to Property Act, XVIII of 1937, and that, as she was not brought on record as his legal representative, the appeal had abated. The lower appellate Court upheld this contention with scme hesitation and held that the appeal had abated. Two days thereafter it passed a separate order dismissing the appeal with costs. It may be mentioned here that thereafter the widow has died and the son, who has appealed to this Court, is the only surviving heir.

(2.) Under the provisions of Rules 3 and 11 of Order XXII of the Civil Procedure Code, where a sole plaintiff or appellant dies, the Court shall, on an application, cause the legal representatives of the deceased to be brought on record and the suit or appeal shall proceed; if within the time prescribed by law no application is made, the suit or appeal shall abate. The application contemplated by this rule must be made within ninety days of the death as provided in Art. 176 of the first schedule to the Indian Limitation Act, 1908, and admittedly the appellant did make an application within ninety days of his father's death. The parties are Hindus governed by the Mitakshara law and presumably the widow of the deceased appellant was also one of his legal representatives under the Hindu Women's Rights to Property Act, XVIII of 1937. It would Rave been proper if both the son and. the widow had made an application that they should be brought on record as the legal representatives. The question now to be decided is whether the appeal abated, as the son alone made the application and was brought on record by an order of the lower appellate Court.

(3.) In Bhikaji Ramchandra V/s. Purshotam (1885) I.L.R. 10 Bom. 220 the appellant who died during the pendency of the appeal had left three adult sons and one minor son. None of them made an application to be brought on record within time, and several months later the minor son made an application that he should be brought on record, and it was held that as the application made by the minor was within the time limited by law, the appeal did not abate. Sargent C.J. observed (p. 223) :- It is true that the complete legal representation as a fact is vested in him and his two brothers, but Section 366 [corresponding to Order XXII, Rule 3, Sub-rule (2)] only requires an application to be made by a person claiming to be the legal representative, to prevent the order of abatement being made. This decision is still good law. It is true that there are some old Allahabad cases in which a different view was taken. The learned Assistant Judge has rightly remarked that the Bombay High Court has taken a more liberal view than several of the other High Courts. But it is not clear why he says that he has scme doubt as to what the Bombay High Court would decide in this case and why he does not think that any of the Bombay cases are binding on him. There are several rulings of this High Court where Order XXII, Rule 4, which is similarly worded, was interpreted in the same way as Rule 3 (or Section 366) was interpreted in the case of Bhikaji Ramchandra V/s. Purshotam (see Naranlal Jethalal V/s. Shivprasad Achratlal (1939) 42 Bom. L.R. 491