(SHRIMANT KUAR) LAXMANRAO BHONSLEY Vs. NARAIN

JUDGEMENT

(1.) I think that in view of the death of Krishna Rao, who was a co-appellant and co-plaintiff with Janki Bai, this case must go back for an investigation of the question of the surviving plaintiff Mt. Janki Bai's right to sue or continue the suit in her sole name. That question was not material so long as Krishna Rao was a co-plaintiff with her as he alone even could have maintained the suit. His death having taken place during the pendency of this appeal the question of Janki Bai's right has become material. No doubt the appellant has substituted one Narain a minor in place of Krishna Rao. But as a legal representative must continue the litigation on the cause of action sued upon and he cannot set up or agitate a new right of suit or his own individual right the decree may be necessarily enure for the benefit of Narain or support his individual right, although if the former suit was a representative suit he may on the analogy of the rule enunciated by their Lordships of the Privy Council in Mata Prasad v. Nageshar Sahai get the benefit of the former decision on the abstract right of his family to officiate as kamadar of the appellant which may devolve on him as a member of that family under the terms of the sanad.

(2.) THEN again Narain being a minor he would prima facie be considered disqualified like females for holding the office of a kamadar, which is necessarily a position of confidence and respectability, and ordinarily, none but an adult male could be considered fit to hold it. But it is just possible and there is room for assuming that the female heir or a minor heir may by virtue of a special custom or reservation of a right under the terms of the sanad be entitled to hold the office and nominate his deputy or substitute. It is therefore neat and proper that Mt. Janki Bai and the minor Narain should have an opportunity to prove that the office has rightly devolved on them or any of them and that the decree must therefore enure for their benefit also. In this view of the case, I do not see any necessity to consider the correctness or otherwise of the findings 'arrived at as regards the merits of the claim. The case is therefore remanded to the lower Court for enquiry and fresh decision with advertence to the above remarks and in accordance with law. The costs hitherto incurred including the costs of this appeal will abide the event.