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Judgment
William Ayling, J.—This is an application to revise an order of the Special Deputy -. Collector, Madura District, in the matter of bringing on
record the legal repre-sentatives of the deceased plaintiff in certain suits, u/s 77 of the"" Madras Estates Land Act pending in his Court.
The preliminary objection is taken that this Court has no power of interference in revision in such cases. Reliance is placed on Section 205 of the
Madras Estates Land Act. In my opinion this section relates, not to '' incidental orders in suits, the final decree in which is appealable, but to such
proceedings as are specified in part B of the Schedule to the Act, as those in which no appeal lies (Nos. 12--20), It is not, and cannot be, intended
to affect the revisional powers of this Court, in suits which are made appealable to the District Court and this Court under Part A of the Schedule.
Section 115, Civil Procedure Code, is one of the sections made applicable to suits under the Madras Estates Land Act by Section 192 of the
latter. No appeal lies against the Deputy Collector''s order sought to be revised: and if, as is urged on plaintiff''s behalf, the Deputy Collector has
failed to '' exercise a jurisdiction vested in him by law, this would seem to be a fit case for interference in revision.
Reference was made to a recent unreported decision of Mr. Justice Seshagiri Aiyar (Civil Revision Petition No. 945 of 191,5). I have
considered this but in the view I take of Section 205,I regret to find myself unable to follow it.
It has, therefore, to be determined whether the Deputy Collector has declined to exercise the jurisdiction vested in him by law. The dispute lay
between the widow of the deceased plaintiff on the one hand claiming as his natural heir and his father and brothers claiming under Wills, the
validity of which was challenged by the widow. The claim of the brothers was dropped as the Will they set up did not cover the present matter, so
that only that of the father remains. The Deputy Collector held that, as the validity of the Will was a very contentious matter, it might be left for
settlement in another Court and without taking evidence dismissed the claim of the father and added the widow as legal representative of the
deceased. The question is, whether this was a compliance with Order XXII, Rule 5, which says:
Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such
question shall be determined by the Court.
For respondent much reliance is placed on an order of the District Collector passed u/s 3 (5), Madras Estates Land Act, subsequent to the
institution of the suit recognising the widow as landholder in succession to the deceased plaintiff. This order is referred to by the Deputy Collector,
but the latter makes it quite dear that he does not rely on it as the basis of his own order.
Respondent''s Vakil contends that it should have been treated by the Deputy Collector as conclusive of the point for determination under Order
XXII, Rule 5, and that even if not, a reference to it is sufficient compliance with the provisions of the rule. I do not think either contention is sound.
The Collector''s order (subject to determination by a Civil Court.) is conclusive as to who is entitled to take subsequent proceedings under the Act,
and probably also, in a case of succession like. the present one, as to proceedings instituted between the death of the last holder and the passing of
the order. But we are concerned here simply with the question of who is entitled to continue proceedings which were legally instituted by the last
holder--in other words, who should represent his estate for the purpose of the suit. This person will not necessarily be the same person as is
entitled to succeed to his rights as. landholder after his death. As laid down by Seshagiri Aiyar, J., in Sundaram Iyer v. Kulathu Aiyer (1890)
A.W.N. 59 : 6 Ind. Dec. 875, a person can sue to recover rent which has accrued due to him as a land-holder, although his estate as such may
have terminated. The right to recover arrears of rent is a part of the estate of the deceased (in the personal sense not in the sense of the definition in
Section 3 of the Madras Estates Land Act) and is devisable by Will; such a devise could not possibly be defeated by an order of the Collector
deciding who should succeed to the position of land-holder after his death.
The Collector''s order is, therefore, not only not Conclusive on the point, but has no bearing on it and cannot be the basis of an order of the
Court under Order XXII, Rule 5, or obviate the necessity for an enquiry thereunder.
The words of the rule are imperative, ""shall be determined"", and I think this presupposes an enquiry in which any claimant shall be entitled to
adduce evidence to support his claim. No such enquiry has been held here. I am fully alive to the practical objections to compelling a Court to
conduct a long and complicated enquiry as a preliminary to a suit which may be of little value and importance, and which will not preclude further
litigation on the very same question. But that is the law, and it must be followed.
I would, therefore, set aside the order of the Deputy Collector and direct him to enquire and determine who is entitled to be brought on record
as legal representative of the deceased plaintiff. Costs to be provided for in the final decree.
Krishnan, J.
We have first to deal with the preliminary objection taken by the respondent''s Vakil that as the order sought to be revised is that of a Revenue
Court no revision lies to the High Court and that if any revision lies at all, it is to the Board of Revenue or to the District Collector u/s 205 of the
Estates Land Act.
It may be conceded that Section 115, Civil Procedure Code, does not of its own force apply to the proceedings of a Revenue Court. The
CPC is applicable only to Courts of civil jurisdiction--see the preamble to the Code--and Section 3, which enumerates the Courts which are
subordinate to the High Court and over which the High Court is empowered by Section 115 to exercise revisional jurisdiction, does not refer to
Revenue Courts. Nevertheless Section 192 of the Estates Land Act has made Section 115 applicable to proceedings in Revenue Courts. That
section says: ""Subject to the other provisions of this Act and subject to the following modifications and additions, the provisions of the CPC shall
apply to all suits, appeals and other proceedings under this Act so far as they are not inconsistent therewith."" Section 622 of the Old Code,
corresponding to section. 115 of the new Code, is not one of the excepted sections mentioned in the latter part of Section 192. Section 115, Civil
Procedure Code, would, therefore, seem t6 apply to proceedings in a Revenue Court under the Estates Land Act.
It is, however, argued for the 1st respondent '' that Section 205 of that Act properly applies and, as that section specifically provides for the
revision of orders like the present one, the jurisdiction of the High Court u/s 115, Civil Procedure Code, should be held to be excluded as being
inconsistent with it, or at any rate in the exercise of our discretion under that section, we should refuse to interfere. In considering this argument we
have first to decide whether Section 205 can be applied at all. That section speaks of ""any proceeding before a Revenue Official from whose
decision no appeal lies."" The question whether Section 205 applies to orders in a rent suit depends upon the meaning we attach to the word
proceeding"" in it. To avoid the serious anomaly of a conflict of decision in the same master that may otherwise result from the Revenue Authorities
revising orders passed in rent suits in which the appeal lies from the final decree to the Civil Courts, I think we may well hold that the word
proceeding"" refers to the whole proceeding and not to a part of it, or, in other words,, in a rent suit, to the whole suit itself and not to any
interlocutory orders in it. If this is correct, as an appeal lies from the Revenue Officer''s decision in the suit, Section 205 will not apply to
proceedings in rent. suits and Section 115, Civil Procedure Code, stands unaffected.
It is argued that this is - giving- too restricted a meaning to the term ""proceeding"" and that we should hold that it is is net less extensive in scope
than the word ''case'' in Section 115, Civil Procedure Code. The ""two words are not analogous and are used in different connections, but even if
we assume that what took place before the Deputy Collector in the present case can be treated as ""a proceeding"" by itself, the result, so far as the
applicability of Section 115, Civil Procedure Code, is concerned, seems to be the same. It will only make Section 205 also applicable, and we
have then a case of concurrent jurisdiction both in the High Court u/s 115, Civil Procedure Code, and-in the Revenue Authorities u/s 205 of the
Madras Estates Land Act. There is nothing in Section 205 which expressly excludes the applicability of Section 115 and, as the latter section is
expressly made applicable to the Revenue Courts by Section 192, we cannot treat it as impliedly abrogated by Section 205 when there is nothing
strictly inconsistent between the two sections.
The next question is whether, in the view that the Revenue Authorities have coordinate jurisdiction with the High Court in the matter, we should
not, in the exercise of our discretion, leave it to them to revise the order in question. I do not think so. To avoid the'' anomaly pointed out above, it
is certainly more convenient, and proper that this Court should exercise its- jurisdiction in the matter. If a party has already elected his remedy by
applying to the Revenue Authorities u/s 205, it may be a question whether interference u/s 115, Civil Procedure Code, should not be refused bat
such a difficulty does not arise here.
The first respondent''s Vakil relied on the rulings in Civil Revision Petition No. 945 of 1916 unreported and in Ram Dayal v. Ramadhin (1890)
A.W.N. 59 : 6 Ind. Dec. 875 in support of his argument. In the former case which is a ruling of a single Judge of this Court, the learned Judge
says, ''''the learned Vakil for the petitioner has not been able to point to any section under which he can ask the High Court to revise the
proceedings of a Revenue Court."" His attention was not drawn to Section 192 of the Estates Land Act and his ruling, therefore, loses its authority.
The case in Ram Dayal v. Ramadhin 6 Ind. Dec. 875 arose under the North Western Provinces Rent Act, XII of 1881, which though similar in
some aspects to the Act in this Presidency differs materially on the very point we have to consider here. The ruling was given in a recent case from''
which there was no appeal to the Civil Courts u/s 189 of Act XII of 1881, the amount claimed being less than Rs. 100. Farther-more, that Act has
expressly excepted cases in which appeals lie to the Civil Courts from the decisions of the Revenue Officers u/s 189 from the scope of Section
189 which gives the revisional power to the Board. The ruling, therefore, cannot be treated as in point here.
I, therefore, agree with my learned brother that the preliminary objection fails. The next point is whether on the merits this is a fit case for our
interference in revision. On that point also I agree with my learned brother because, when the Deputy Collector refused to consider the petitioner''s
claim based on his alleged Will and referred him to a suit to establish its validity, he acted with material irregularity in the exercise of his jurisdiction.
The order said to have been passed by the Collector in favour of the 1st respondent u/s 3, Clause 5 of the Estates Land Act, declaring her to be
the landholder in succession to the deceased plaintiff, on which much reliance was placed by the 1st respondent before us, was not relied on by the
Deputy Collector as the basis of his order. That order itself is not before us and we can, therefore, hardly decide the exact effect of it regarding the
arrears of rent sued for in this Bent Suit No. 702 of 1917. Prima facie the proper legal representative of the deceased plaintiff in the suit is the man
to whom the ownership of the rent has passed on plaintiff''s death, and the petitioner alleges that he is that person who has become the owner
under the Will. It may be that, if the right to continue the suit in the Revenue Court has passed to the respondent under the order of the Collector
u/s 3, Clause 5, she will be the proper legal representative irrespective of the question of the ownership of the amount sued for; just as the holder
of a succession certificate for a particular debt will be in a suit for that debt. The rights of the beneficial owner will not be defeated as he could sue
the person added as the legal representative, and recover from him. The legal representative, as defined in the Code, section, 2, Clause 11, means
a person who in law represents the estate of a deceased person ; so he need not necessarily be the beneficial owner of that estate. But even if that
be so, the order of the Collector not being before us, it is not possible to say whether it refers to the arrears of rent sued for and confers on the
respondent the exclusive right to continue the suit or not. Unless the declaration by the Collector is given retrospective effect, it can scarcely affect
the arrears of rent which had already accrued and had been sued for; and there- is no reason to suppose that such effect should be given to it. If
the Collector''s order is to take effect only from its date, petitioner will be the landholder qua the rent sued for, u/s 3, Clause 5, if his claim to
collect it under the Will is established. See Sundaram Iyer v. Kulathu Aiyer 31 Ind. Cas. 81 : 29 M.L.J. 505 . In that case it was held that a person
to whom arrears of rent were due was a landholder though his estate had terminated. If he is such a landholder, petitioner will be the proper person
to continue the suit under the Estates Land Act in the Revenue Court. I, therefore, agree that the order of the Collector, u/s 3, Clause 5, is not
shown to affect the question who the proper legal representative of the deceased plaintiff is and for the purpose of deciding it, it seems necessary
that the'' genuineness and the validity of the petitioner''s Will should be enquired into. I, therefore, agree in the order proposed by my learned
brother.