Gulzari Lal And Others () v. Shrimati Sarju Bai And Another (S).

Malik, C.J:— This is an appeal under section 10 of the Letters Patent against an order passed by a learned single Judge of this Court on the 18th December, 1947.

One Lala Chander Sen deposited a box containing jewellery in the Allahabad Bank Limited, Hathras Branch, in the joint names of himself and his wife, Mst. Sarju Bai. Sarju Bai held a suit (No. 54 of 1942) for a declaration that the ornaments belonged to her and were her stridhan property and that Chander Senhadno right or interest in them. Chander Sen contested the suit on the ground that a large part of the jewellery contained in the box belonged to his first wife and that there were some ornaments which belonged to him and the plaintiff's claim that all the ornaments belonged to her was false. The suit was, however, decreed by the lower court and Chander Sen hied an appeal in this Court (First Appeal No. 217 of 1944). During the pendency of the appeal Chander Sen died on the 15th May, 1947. An application was thereupon filed by three persons, Gulzari Lal, Moti Lal and Om Prakash, who were related to Chander Sen as father, brother and nephew respectively, that their names be brought on the record as “heirs and legal representatives” of Lala Chander Sen deceased. This application was filed under Order XXII, rule 3 of the Code of Civil Procedure. The application was opposed by Mst. Sarju Bai on the ground that she being the widow of Chander Sen she was, his heir and in her life-time his father, brother or nephew had no interest in the estate. This objection found favour with the learned single Judge who dismissed the application for substitution of names with the result that the appeal has abated. It is against this order that this Letters-Patent appeal has been filed.

A preliminary objection is taken on behalf of the respondents that the order under appeal is not appealable, but we see no force in the objection. Under section 10 of the Letters Patent an appeal can be filed against a judgment of a learned single Judge. The question for decision therefore is whether this is a judgment within the meaning of the Letters Patent. Learned counsel for the respondents has cited before us in support of his objection a Division Bench ruling of this Court, Beni Madho Rao v. Shi Ram Chandraji Maharaj where it was held that no appeal could be filed against an order by which it was decided as to which of the two sets of claimants were the legal representatives of the deceased. There can be no doubt where a number of persons come forward to claim that they, as the legal representatives of the deceased, have the right to continue an appeal as appellants or as respondents, any order of substitution made by the Court does not finally determine the rights of the various claimants inter se. All that the Court is interested in, is to see that a person, who claims to have an interest in the property and prima facie appears to have such interest, is before the court to represent the estate. The other claimants, if they have any superior right to the estate, can always file a separate suit for the determination of their rights and the order passed for the substitution of names has never been held to bar the decision of such a suit.

The case before us, however, is different. Chander Sen had filed the appeal and the appeal had failed. No suit can now be filed by the reversioners for determination of the question whether the property in suit was the stridhan property of Mst. Sarju Bai or was a part of the estate of the deceased, Chander Sen. The decree passed in suit No. 54 of 1942 would bar such a suit if the appeal is held to have abated. If, on the other hand, Chander Sen had died before the determination of the question there can be no doubt that the reversioners could have claimed a declaration as to the nature of the property, that is, whether it is stridhan property or a part of the husband's estate. It is true that under Order XXII, rule 3, it is only a legal representative whose name can be brought on the record on the death of the plaintiff or the appellant and the legal representative has been defined in section 2, sub-section (11) as a person who in law represents the estate of a deceased person and to include a person who intermeddles with the estate of the deceased. It is difficult to call the appellants intermeddlers except to the extent that they claim that they are the reversioners of Chander Sen. In a case of this kind it would be better if the legislature provided for the appointment of an administrator ad litem who could represent the estate when there was a conflict between the interest of a limited owner holding the estate for her lifetime and the interest of the ultimate owners of the property after her death. We are, however, of the opinion that in the absence of any such provision the words ‘legal representative’ must be interpreted in the wide sense to include a person whose rights would be affected or might be affected if he survived the widow unless he was allowed to continue the appeal. We have already said that if Chander Sen had not filed a suit, the present appellants as the nearest reversioners would have had a right to file a suit. It appears, to us to be anomalous that though the present appellants had the right to file a suit if Chander Sen had not filed the suit, they should have no right to continue the appeal, Chander Sen having died and be having instituted the suit. We are, therefore, of opinion that the order passed by the learned single Judge was not correct and the appellants should have been allowed to have been impleaded in place or Chander Sen and should have been allowed to continue the appeal.

Though, as we have already said, in a case where the determination of the question as to who has the right to be brought on the record on the death of a deceased appellant or a respondent may not amount to a judgment in some cases, in those cases where the decision of that question determines the appeal itself, to our minds the order should be considered to be a judgment and therefore appealable under section 10 of the Letters Patent. We have already pointed out that the result of the Older passed by the learned single Judge is that the appeal would be deemed to have abated and the decree passed in suit No. 54 of 1942 would become final and the reversioners rights would be gone for ever.

We, therefore, set aside the order of the learned single Judge, dated the 18th December, 1947, and direct that, the names of Lala Chander Sen may be removed and the names of the appellants may be brought on the record and they may be premitted to continue the appeal.

Appeal allowed.