MOHAMMAD Vs. KUNHI KUTTI ALI

JUDGEMENT

(1.) There are two competing applications by persons to be declared legal representatives of the deceased respondent 1 in A.S. No. 128 of 1925 on the file of this Court, who was the plaintiff in the Court below. This man filed his suit as senior anandravan of a marumakkathayam tarwad for a declaration that a pattadharam, or lease for a term of years, executed by the karnavan, of some tarwad property in favour of two other members of the tarwad, was not binding on the tarwad, and for the recovery of the property. The Sub-Judge of South Katiara decreed the suit, and the appeal has been filed by the two alienees, defendants 2 and 3, the karnavan, who was defendant 1 having been impleaded as respondent 2. Of the two applications now before me the first to be filed is by another of the anandravans, and the second by the karnavan himself.

(2.) Under Rule 3(1), Order 22, Civil P.C., where a sole plaintiff dies and the right to sue survives, the Court shall cause the legal representatives of the deceased plaintiff to be made a party; and who is a legal representative is explained in Section 2 (11) of the Code. He is the person who in law represents the estate of the deceased person or, in the case of a representative suit, the person on whom the estate devolves. Now the junior member of a tarwad has no separate estate in the family property. He has no more than a right jointly to share in the enjoyment of it, which in practice takes the shape of a right to maintenance. When he dies this right dies with him. There is thus no question of the devolution of any estate, and for that reason neither the karnavan nor any anandravan can be substituted as legal representative under these provisions of. Civil Procedure Code.

(3.) That, however, does not necessarily dispose of these applications. It has been urged that the suit is in substance a representative one. Proof indeed that the plaintiff received the Court's permission, under Order 1, Rule 8, Civil P.C. to bring it as a representative of the tarwad has not been rigidly given. There is an application (I. A. No. 356 of 1922) for such permission, upon which the Subordinate Judge passed an order: The notice will be published in the newspapers mentioned in three successive issues thereof, and since Rule 8, as I understand it, means that, if the Court orders publication, it grants permission subject to any objections received, it may be reasonable to infer from the record here available that permission was granted. At the time of hearing the arguments I was disposed to think that an express order granting permission was necessary. But I have since discovered a case Dhunput Singh V/s. Paresh Nath Singh [1894] 21 Cal. 180 in which it was held that, where an objection that no permission was granted was taken on appeal, the Court may infer such permission from the proceedings of the Court. Paras. 11-a and 14 of the plaint recite that the plaintiff claims possession on behalf of the tarwad, and that since the tarwad consists of numerous members, the plaintiff sues on its behalf with the leave of the Court. I cannot discover any objection in the written statements to the plaintiff's competence, so to sue, except an allegation that he is not the senior anandravan, which was not made the subject of an issue and appears to have been untrue. The Court must have dealt with the suit as a representative suit because in its decree it directs the defendants to deliver possession to the plaintiff on behalf of the tarwad. I think therefore that the Court, the plaintiff and the defendants equally believed the suit to be representative in character, and to have been brought with the permission required by Order 1, Rule 8. If I am wrong in drawing this inference, and in myself treating it as a representative suit upon these grounds it still remains true that any anandravau is entitled, as part of his personal law, to challenge by suit on behalf of his tarwad an alienation made by his karnavan; and although such judgment as he may obtain or have to submit to may not be binding upon members of the family not made parties or operate as res judicata against them, it-is difficult to see how such suit is not in substance of a representative character.