BELA SINGH Vs. MTATTARI

JUDGEMENT

(1.) One Sidhu had two sons Sundar and Thakur Singh. The suit property belonged to Thakur Singh who died leaving surviving him a widow, Mt. Ralli, and a daughter, Mt. Rao. Mt. Ralli gifted the suit land to it. Rao. Sundar brought the usual suit for a declaration that the property being ancestral qua him and Mt. Ralli's power to alienate it being restricted under the custom by which the parties were governed, the gift would not affect his reversionary interests. The suit was resisted inter alia on the plea that the gift amounted to acceleration of succession. Sundar died in the course of the suit. It is admitted that he left a widow but she took no interest in the suit. One Bishan Das, who claimed to be Sundar's adopted son, and Bela Singh and Surjan Singh, who alleged that they were Sundar's collaterals, applied to be brought on record as his legal representatives. Bishan Das later on dropped out and withdrew his application. His counsel made a statement that if he considered it necessary, he would bring a separate suit for establishment of his rights. On this his application was dismissed. As regards Bela Singh and Surjan Singh, the defendants at first denied that they had any right to be impleaded as plaintiffs in the place of Sundar. Later on, however, they admitted that they were Sundar's legal representatives but denied that they could continue the action. The Courts below have come to the conclusion that since the property was not proved to be ancestral qua Bela Singh and Surjan Singh, they had no right to challenge the gift in Mt. Rao's favour, and further holding that Mt. Rao was the next heir to the suit land have dismissed the suit. Bela Singh alone has preferred this second appeal.

(2.) I am of the opinion that the appeal must fail on the short ground that neither Bela Singh nor Surjan Singh was the legal representative of Sundar qua the suit land and they had no right to take the place as plaintiffs in the suit. Rule 3, Sub- rule (1) of Order 22, Civil P.C., lays down that when a sole plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. This means that when a person applies to be brought on record as a plaintiff in place of a deceased plaintiff, he has to satisfy the Court on two points: (1) that he is the legal representative of the deceased and (2) that the right to sue survives. The term "legal representative" has been denfied in Sub- Section (11) of Section 2, Civil P.C., as meaning 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. The appellant's counsel contended that though Sunder has left behind a widow, the appellant and the other collateral of Sundar represented his estate in law, for the reason that the widow's rights were limited and she only had the life estate. In my opinion, there is no force in the contention whatsoever. It is correct that a widow governed by Customary Law succeeds only to a life estate. It is also correct that there are certain restrictions placed upon her rights of alienation, but none the less she is the heir of her deceased husband and so long as she is alive, she alone represents his estate. As has been observed in a large number of decided cases, unless there is a special Custom to the contrary, the presumption is that a widow succeeding to her hushand under custom has the same sort of estate as a Hindu widow and as regards the nature of widow's estate under Hindu law Section 176 of Mulla a Hindu Law sums up the whole position in these words: A widow or other limited heir is not a tenant-for-life but is owner of the property inherited by her, subject to certain restrictions on alienation, and subject to its devolving upon the next heir of the last full owner upon her death. The whole estate is for the time vested in her and she represents it completely. As stated in a Privy Council case in Janaki Ammal V/s. Narayanasami 3 A.I.R. 1916 P.C. 117 her right is of the nature of a right of property; her position is that of owner; her, powers in that character are, however, limited; but....so long as she is alive no one has any vested interest in the succession . The appellant's counsel further argued that since Sundar's suit was brought in a reresentative capacity and had he obtained any decree, that would have enured for the benefit of all the collaterals, every collateral should in law be regarded as his legal representative. I do not find any substance in this contention either, because according to the concluding words of Sub-section (11) of Section 2 quoted above when a party sues in a representative character, the person on whom the estate devolves on the death of the party so suing is his legal representative. In this case, it is not denied that according to custom the widow represents her husband in collateral succession and as long as she is alive, none of her husband's collaterals can have any concern with the share to which her husband would have been entitled. Accordingly Sundar's widow alone was his legal representative.

(3.) The result, in my opinion, is that the appeal must fail and is dismissed with costs. Khhosla, J. I agree.