GOBARDHAN MUKHARJI Vs. SALIGRAM MARWARI

JUDGEMENT

(1.) This appeal and the revision application are directed against an order of the Subordinate Judge of Manbhum refusing to substitute the name of the appellant in place of a deceased sole plaintiff of a suit named Matangini, who had instituted the suit for certain property against the present respondents, She died during the pendency of the suit. The date of her death is stated to be 15 November 1933. On 2 December, 1933, the present appellant Gobardhan Mukherjee filed an application to the effect that he had acquired a 99 years lease of the disputed property from the deceased plaintiff and wanted that he should be substituted in her place. On 8 January 1934 the learned Subordinate Judge passed an order which, in my opinion, was an order rejecting the application. The order ran thus: Now Matangini has died and an application has been made for substitution by Gobardhan Mukerjee as being ijaradar of Matangini. Matangini had limited interest according to the plaint. Therefore the ijaradar cannot be substituted in her place after her death.

(2.) By a second petition filed on that date (8 January 1934), Gobardhan Mukherjee made a fresh prayer for substitution of his name on the basis of a document which he claimed to have obtained from one Priyasakhi said to be the daughter of the deceased Matangini. He also asked that Priyasakhi should be made a pro forma defendant. By his order, dated 14 February 1934, the learned Subordinate Judge rejected this application and Gobardhan Mukherjee has come up in appeal. Being doubtful about his right to appeal, he has also filed a revision application. The learned advocate for the appellant has contended that his client was entitled to have his name brought on the record as plaintiff either under Order 22, Rule 3, read with Section 146, Civil P.C. or under Order 22, Rule 10, either as representative of the original plaintiff now dead or as representative of her daughter Priyasakhi. I shall deal with the two applications of the appellant before the lower Court separately. The first application of the appellant was for substitution of his name as an assignee from the original plaintiff and not as her legal representative within the meaning of the Code. Order 22, Rule 3 deals with substitution after the death of a party. This rule, in my opinion, does not apply to a man who does not come in as a legal representative of a deceased party, but as an assignee from him. It is accidental in this particular case that the first application of the appellant was filed after the death of the original plaintiff. But the right which the appellant claimed did not accrue to him on the death of the plaintiff but on a transfer made to him by her in her lifetime. Therefore it is obvious that he cannot come in as a man entitled to have his name substituted in consequence of the death of the original plaintiff. The term "legal representative" in defined in Section 2(11), Civil P.C. thus: Legal representative means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.

(3.) It cannot for a moment be argued that the appellant having obtained lease from Matangini has become her legal representative. He does not even represent the whole of the disputed property, much less he represents the estate of Matangini. The alleged 99 years lease relied upon by the appellant reserves an annual rent of Rs. 189, and therefore assuming this lease to be a genuine transaction, interest in the disputed property to that extent was left in Matangini.