T.R. Sitharamiah and Others vs Elappan

Veeraswami, J.—This second appeal raises an interesting question as to the scope of Order XXII, Rule 9 of the Code of Civil Procedure.

The legal representatives of the Plaintiff are the Appellants. The suit was for a declaration of the Plaintiff''s title to the suit properties and for

recovery of possession thereof from the Respondent. The properties admittedly belonged originally to one Ramakrishna Ayyar, who died in April

1903, leaving his son Ramachandran and widow Ramammal Ramachandran died in October 1903, and his mother, as his heir, succeeded to the

suit properties. Ramammal instituted Original Suit No. 440 of 1952, on the file of the Court of the District Munsif of Tirupattur against the

Respondent for a declaration of her title to the suit properties and for recovery of possession thereof. She claimed that the Respondent was her

lessee and was denying her title by setting up adverse possession. While this suit was pending, she surrendered the suit properties to the Plaintiff in

the present suit on September 6, 1954. Original Suit No. 440 of 1952, for some reason, was not pursued by the present Plaintiff with the result it

was dismissed on September 6, 1954, for non-prosecution. The suit out of which this second appeal arises was instituted on February 5, 1955.

This suit proceeded on the basis that the Respondent was a lessee and the Plaintiff as a surrendered was entitled to evict him. The trial Court took

the view, the lower appellate Court agreeing with it, that the suit was barred under Order XXII, Rule 9 of the CPC and dismissed it. On the other

issues, both the Courts below found that the surrender was true, that the Plaintiff had title to the suit properties and that the Defendant was a tenant

liable to be otherwise evicted. This only question in this second appeal is, therefore, whether the view of the Courts below as to the scope of the

said rule is correct.

Sub-rule 1 of Rule 3 of Order XXII of the CPC provides for the procedure in case of death of one of several Plaintiffs fit of sole Plaintiff. Sub-

rule 2 of the same rule indicates the effect of failure to take steps under the first sub-rule. If on the death of a Plaintiff the cause survives and the

legal representatives are not brought on record by an application made within the prescribed period of limitation, the suit shall abate. In such a

case, Rule 9(1) raises a bar to a fresh suit on the same cause of action. Sub-rule 2 of tins rule provides for setting aside the abatement by an

application, on sufficient cause being shown for not taking steps within the period of limitation. The Courts below thought that a surrender by a

limited owner like Ramammal amounted to a civil death and to such a case Rule 3 of Order XXII will be attracted. Apparently their view was that

death within the meaning of that rule would include a civil death, so to speak. In my opinion, this view of the rule is not warranted. No one will

suggest that a widow who surrenders her limited estate under the Hindu Law suffers thereby a physical death. But, as under her personal law,

surrender has the effect of accelerating succession, and succession can open only on the death of the limited owner, the fiction has been introduced

by Courts that by surrender succession is accelerated as if she suffered a death. In other words, it is an assumed death, an abstraction or fiction of

the law. That is what the Supreme Court point out in Natvarlal Punjabhai and Another Vs. Dadubhai Manubhai and Others, . It was thus

observed:

Nobody says that the surrendering widow actually dies. It is a fiction of law pure and simple....

It was also mentioned by the Supreme Court that the law of surrender by a Hindu widow, as it stands at present, is for the most part, judge-

made law, though it may not be quite, correct to say that there is absolutely no textual authority upon which the doctrine could be founded, at least,

impliedly.

There is no indication in Order XXII, Rule 3 of the CPC that it includes or comprehends such a fictional death. This rule has application not only

to Hindus but to all communities, whatever their personal law may be. There is nothing like a surrender of a limited estate by a widow and a civil

death suffered thereby under the Muhammadan Law or the principles of law applicable to Christians. The rule only speaks of death and, it appears

to me death in a physical sense, not as an abstraction or in a fictional sense. In the case of a surrender by a Hindu widow, there is nothing more

than a self-effacement leaving a widow physically alive, so that it would be quite inappropriate to say that she died actually by surrender. The

language in Sub-rule 1 of Rule 3, to my mind can only apply to physical death of Plaintiff. Article 176 of the Limitation Act prescribes limitation for

an application to have the legal representatives of a deceased Plaintiff made a party. The period of ninety days, which is the limitation provided for,

commences from the date of the death of the deceased Plaintiff. Article 177 prescribes the same period of limitation for an application to bring the

legal representatives of a deceased Defendant. These two articles, in my opinion, unmistakably refer to physical death. Also I think the surrenderee

from a limited owner like a Hindu widow can hardly be described as her legal representative. He takes the property, not as the heir of the widow,

but as the heir of the last male owner. Article 141 of the Limitation Act provides limitation for a suit by a Hindu or a Muhammadan entitled to

possession of immovable property on the death of a Hindu or Muhammadan female. The period of limitation in that case commences when the

female dies. Here also, death, as it seems to me, should be understood in a physical sense. When Sub-rule 2 of Rule 3 of Order XXII of the CPC

refers to the limitation prescribed under the Limitation Act, it stands to reason that death in the rule has the same meaning as in articles 376 and

177 as well as 141 of the Limitation Act.

Reliance has been placed, on behalf of the Natvarlal Punjabhai and Another Vs. Dadubhai Manubhai and Others, for a contention that when a

widow surrenders, she is more or less suffers a real death. It is difficult to imagine a more hopeless argument. As a matter of fact the Supreme

Court has, in more than one place, made it clear that surrender by a Hindu widow amounts nothing more than a self-effacement and in that sense a

fictional death.

It follows, therefore, that the Courts below were wrong in holding that the suit was barred under Order XXII, rule 9 of the Code of Civil

Procedure. The second appeal is allowed. The judgments and decrees of both the Courts below are set aside. The suit will stand decreed with

costs of the Appellants throughout. Leave granted.