M.P Varma, J.:— This appeal has been referred to a Division Bench by Hon'ble Mr. Justice S. Ali Ahmad, who is now a member of the present Division Bench hearing the appeal. The plaintiffs have filed this Second Appeal against the judgments of the courts below.
2. On perusal of the original order, dated 31-1-1969 passed by the Munsif, it appears that the same was passed on a petition framed and preferred under O. 22, R. 9(2) of the Civil P.C (hereinafter referred to as ‘the Code’) for setting aside the abatement of the main suit. The said suit was for a declaration of title and recovery of possession of some land on the ground that the plaintiffs were dispossessed by the defendants and that the defendants were all members of one joint Hindu family.
3. The trial court took a view that the plaintiffs have failed to establish sufficient cause and has also held that in view of the plaintiffs' case the suit had abated as a whole and not only against the deceased defendants. An appeal in the court below was preferred as against the order, dated 31-1-1969 and also against the decree dated 19-2-1969, which followed as a consequence to the dismissal of the suit ordered by the original court while disposing of the petition for setting aside the abatement. In effect, therefore, the appeal before the court below was a composite one, i.e both against the order refusing to set aside the abatement as also dismissal of the suit.
4. The question which arises for our consideration is whether a second appeal could be preferred against the appellate order, which was passed in an appeal against the trial court's order refusing to set aside the abatement. Undoubtedly such an appeal could be preferred under O. 43, R. 1 clause (k) of the Code. The matter is very elementary and it needs hardly to be reiterated that no second appeal lies from an order as provided in S. 104(2) of the Code, which says that “no appeal shall lie from any order passed in an appeal under this section.”
The dismissal of a petition under O. 22, Rule 9(2) of the Code, which enables a plaintiff to apply to the court to set aside the abatement or dismissal of suit under O. 22 of the Code, is appealable as an appeal from an order under O. 43 of the Code and the order of the first court clearly specifies that “the petition dated 2-8-68 for setting aside the abatement of the suit be dismissed.” In no circumstance, therefore, the appeal before the court below can be treated as against dismissal of the suit itself. It seems that after the order, dated 31-1-1969, passed by the first court, a formal consequential decree was prepared by the said court on 19-2-1969 which was also made a subject of attack in the appeal before the appellate court below and I feel that under that misconception, the appeal which should have been described and filed as a Miscellaneous appeal was preferred as a Title appeal. I further find that even the lower appellate court's order concludes by saying that “it further follows that the learned Munsif was justified in holding that the suit abated as a whole and rightly refused to set aside the abatement thereof.” Such a finding clearly establishes that the appeal was being heard against the dismissal of the petition for setting aside abatement and definitely not against the dismissal of the suit itself. In my opinion, if the plaintiffs had any grievance against the dismissal of the suit followed by a decree, it was open for the plaintiffs to prefer an independent appeal against the said decree, if the same was permissible in law. But that having been not done, the appeal before the court below cannot but be treated as an appeal under Order 43, Rule 1(k) of the Code. In that view, the present Second Appeal becomes incompetent as barred by Section 104(2) of the Code. The first appeal filed in the court below must be held to have been preferred under Order 43, Rule 1(k) of the Code which is directly covered by Section 104(1)(i) of the Code.
5. However, if the appeal before the court below is treated as a composite appeal, as contended at the Bar by Mr. Jogendra Mishra, Counsel for the appellants, being both against dismissal of the plaintiff's petition dated 2-8-1968 for setting aside the abatement as also against the formal consequential decree, dated, 19-2-1969 prepared on the basis of the dismissal of the suit itself, making the second appeal maintainable, the question that arises for consideration is whether the court below has committed such an error of law as to warrant any interference by this Court.
6. The only question of law canvassed before us is that on the admitted position the deceased minor was a member of the joint Hindu family, of which his father was the Karta. It has been contended by Sri Mishra that this position should be taken to mean that the father of the deceased was the legal representative within the meaning of Section 2(11) of the Code, since the father in the eye of law represents the estate of the deceased person as intermeddling with the deceased's estate. It has also been contended that the said Karta father is already on record and the suit cannot abate at all.
7. I may say that the law regarding survivership has undergone a drastic change by proviso to Section 6 of the Hindu Succession Act, 1956, which provides that in the case of the death of a member of Mitakshara coparcener, his interest in the coparcenery property shall devolve by succession and not by survivorship if he has left behind him surviving a female relative specified in class I of the schodule of the Hindu Sucession Act, 1956. Admittedly, mother is class I heir as a female relative of the deceased and therefore, on the death of the minor, his interest in the joint family property devolved upon his mother, who had admittedly survived on the death of the minor. The coparcenary to the extent of the deceased minor ceased to exist immediately on his death and the father, who was the karta of the joint family could no longer be considered to be an intermeddler of the estate of the deceased, which had devolved upon his mother. In this view of the matter, the contention that father of the deceased minor is the legal representative fails. Such a position was permissible before the passing of the Hindu Succession Act, 1956, when the law of survivorship did hold the field in the matter of devolution of the interest of deceased coparcener.
8. I am, therfore, constrained to hold that the father of the deceased minor could not represent the estate of the deceased and therefore, it cannot be held that he is a legal representative of the deceased minor as contemplated by law.
9. To conclude, I say that the two courts below have given their concurrent findings on both the questions, namely, want of sufficient cause and the abatement of the suit as a whole by reference to evidence adduced by the parties and there is no infirmity of any sort in the findings on the said two questions.
10. In the result, on the grounds set forth above, the appeal must fail. It is accordingly dismissed but without costs.
S. Ali Ahmad, J.:— I agree with my learned brother that the appeal should be dismissed. I, however, propose to give some reasons of my own in support of the above conclusion.
11-12. As has been noticed by my learned brother the suit was filed for declaration of title and recovery of possession. Defendant No. 6 was a minor. His father was defendant No. 3. All the defendants constituted a joint Hindu family of which the defendant No. 1 was the Karta. On the findings defendant No. 6 died on 14-4-1968 an application was filed on behalf of the plaintiffs on 15-6-1968 saying that defendant No. 6 was dead and that his father was already on the record as defendant No. 3. It was said, in the circumstance, that it was not necessary to substitute the heirs of the deceased-defendant. Thereafter on 15-6-1968 an application was filed on behalf of the defendants that defendant No. 6 left behind his mother as his sole heir and that the suit abated as against deceased defendant No. 6. Thereafter it transpired that an application was filed for substituting the mother of the deceased defendant No. 6. The trial court on the facts came to the conclusion that the plaintiffs were aware of the death of the deceased defendant and as such there was no justification for not filing the substitution petition within time. It, therefore, dismissed the petition under Order 22, Rules 4 and 9 of the C.P.C It also held that as a result of abatement of the suit as against the heirs of the deceased-defendant the whole suit had abated. An appeal, therefore, was preferred to the District Judge. The lower appellate court affirmed the decree passed by the trial court. Thereafter this second appeal has been filed.
13. Mr. Mishra learned counsel appearing in support of the appellants raised an interesting point. His argument was that under Order 22. Rule 4 of the C.P.C what is required is to substitute the legal representative of the deceased-defendant. According to Mr. Mishra the legal representative does not mean only heirs but also one who intermeddles with the property of the deceased-defendant. Learned counsel in that context invited our attention to Section 2(11) of the C.P.C where the expression ‘legal representative’ has been defined. No doubt a person who intermeddles with the estate of deceased is included in the definition of legal representative, according to Section 2(11) of the C.P.C However, according to the learned counsel since the father as defendant No. 3 and the Karta as defendant No. 1 was already on the record, no substitution was necessary, because the two aforesaid persons must be held to be intermiddlers in respect of the estate of deceased. The question, therefore, that requires consideration is what is meant by the word ‘intermeddlers’. According to Random House Dictionary of the English Language intermeddler means one who interferes or intermeddles. According to the same dictionary ‘meddle’ means to interfere officially and unwantedly. The Karta of a family is an agent. He, therefore per se cannot be said to be an intermeddler with the estate of deceased. It was not said in either of the two courts below that the defendant No. 3 father or defendant No. 1 the Karta was intermeddling with the estate of deceased. It was really the ingenuity of Mr. Mishra which prompted this argument in this Court. Had in fact the defendant No. 1 or defendant No. 3 was intermeddling with the estate of deceased then obviously no application would have been filed in the trial court for substituting the mother in place of the deceased defendant which was filed on the basis of an application filed by the defendant themselves when the suit has become bad for non-substituting the mother. Therefore, I am of the view that although an intermeddler, in law, is a legal representative, but in this case the appellants have failed to prove the same. The result, therefore, is that the suit has rightly been dismissed by the courts below.
14. My learned brother has also held that the appeal in the court below was in substance not an appeal under S. 96 of the C.P.C but was an appeal under Order 43. Rule 1(k) of the C.P.C On that account it has been held by my learned brother that no second appeal lies in this Court. I don't express my opinion on this aspect of the matter.
Appeal dismissed.