John Wallis, J. -
(1.) THIS is an appeal from the judgment of the High Court at Allahabad in exercise of its powers of revision under Section 115 of the Code of Civil Procedure, and raises questions as to the High Court's interpretation of the section, and as to the claim of a next reversioner to carry on at his own expense a suit which had been filed by the Collector under the local Court of Wards Act as representing two widows for possession of the suit properties which were alleged to form part of the estate of their deceased husband, in consequence of the Collector having applied to withdraw the suit. The suit had been instituted by the Collector of Saharanpur under Section 55 of the United Provinces Court of Wards Act on behalf of Jaimala Kuer and Chando Kuer, who were the surviving widows of Janeshwar Das and are hereinafter referred to as the widows, to recover certain properties in possession of three of the defendants which were alleged to be part of the estate of their deceased husband.
(2.) THE case made in the plaint was that the plaint properties had belonged to Dip Chand who died in 1907 and that on the death of his widow, Dhanni Kuer, who died on January 20, 1920, Janeshwar, the husband of the widows, and his brother Badri Das, who were Dip Chand's nearest reversioners, became entitled to succeed to the suit properties. Dip Chand had been adopted into their family, and it was alleged that his natural father Mukand Lal, who was his guardian had taken advantage of his minority and the minority of his widow, to put his other sons Atma Ram and Abhai Nardan, defendants Nos. 1 and 2, in possession of the suit properties. THE suit was brought on behalf of the widows of Janeshwar one of the reversioners, safeguarding the rights; of Phalwanti Kuer, the widow of Badri Das, the other reversioner, who was impleaded as defendant. No.3.
The plaint was filed by the Collector on January 20, 1932, and on April 19 he applied that the case should be struck off as the Board of Revenue, which was the Court of Wards, had sanctioned the withdrawal of the suit. On the same day the widows put in an application to be substituted as plaintiffs. On May 9, in compliance with the Court's order, the Collector filed through the Government Pleader his objection to the widows' application on the ground that that were debarred from suing under Section 55 of the U. P. Court of Wards Act, that the Collector as plaintiff had an absolute power to withdrawal under Order XXIII, Rule 1, and that the widows were not proper or necessary parties under Order I, Rule 10 On the same day the widows joined with Beni Prasad, who claimed to be the nearest reversioner of their husband Janeshwar and his brother Badri, and entitled to succeed to their estates on the death of their widows, in filing a fresh application that they might be joined as plaintiffs and the conduct of the suit given to any one of them. This application was supported by a lengthy affidavit to which their Lordships do not propose to refer,, seeing that the Collector was not served with a copy and had no opportunity of answering it, as the Subordinate Judge at once proceeded to hear arguments on all these applications and reserved judgment which he delivered: two days later.
The Subordinate Judge held that the Collector under Order XXIII, Rule 1, was entitled to withdraw the suit, and as Section 55 of the U. P. Court of Wards Act prevented the widows, who were Wards of the Court, suing in their own names, they could not be substituted as plaintiffs. He also rejected the application of Beni Prasad, the next reversioner, as he was not a party to the suit, and it was not shown that there had been any arrangement creating a devolution of interest in his favour during the pending of the suit under Order XXII, Rule 10. He accordingly rejected the application of the widows and of Beni Prasad, and passed a decree dismissing the suit which, if allowed to stand, might, under the Code, have finally barred the widows' claim without any adjudication on the merits, as no leave to file a fresh suit was applied for or given.
(3.) THE widows then applied to the High Court to revise the judgment of the Subordinate Judge under Section 115 of the Code of Civil Procedure. Beni Prasad, whom they impleaded as respondent No.6, was afterwards transposed as an applicant for revision along with the widows. It was alleged in the application that in refusing to make the applicants parties to the suit and to substitute them as plaintiffs, the Subordinate Judge had failed to exercise a jurisdiction vested in him by law (cl. (b)), and had acted illegally or with material irregularity in the exercise of his jurisdiction (cl. (c) ).
For the reasons stated in their judgment the High Court dismissed the application of the widows. The widows have not appealed against this decision and their Lordships are accordingly not called upon to review it nor do they express any opinion as to the soundness of the grounds upon which it proceeded. As regards Beni Prasad's application the High Court held that it had not received a proper hearing or consideration in the Court below, and that the Subordinate Judge had totally misapprehended the nature of his application and dealt with it summarily. They accordingly held that they had jurisdiction to entertain his application. Their Lordships are of opinion that the High Court rightly so held inasmuch as the Subordinate Judge in disposing as he did of Beni Prasad's application acted with material irregularity.;