Rikhai Rai v. Sheo Pujan Singh

Stanley, C.J and Griffin, J.:— The suit in this case was brought by the plaintiff to recover possession of 60 bighas of sir land, which were leased in perpetuity to the defendants by one Musammat Atrajo Kunwar, the mother of the plaintiff. The plaintiff Musammat Sheo Kunwar died during the pendency of the suit, and thereupon the respondent Sheo Pujan Singh, as the reversionary heir of Baldeo Rai, the last male owner, was placed upon the record in place of Musammat; Sheo Kunwar. A decree in his favour was passed by the court of first instance which was confirmed by the lower appellate court. This second appeal has been preferred, and the main ground of appeal is that the cause of Sheo Kunwar was personal and did not survive to the respondent, the reversionary heir. There appears to us to be no force in this contention. Prior to the passing of Act V of 1908 there are several authorities to be found on the point raised. In the case of Katama Natchier v. The Raja of Shivagunga their Lordships of the Privy Council held that upon the death of a Hindu widow the right of action formerly vested in her devolves not upon her heirs but upon the next heirs of her husband.” In the case of Premmoyi Choudhrani v. Preonath Dhur it was held by Macpherson and Hill, JJ., that on the death of a Hindu heiress after the institution of a suit to recover property belonging to her deceased, husband, the reversionary heirs of her husband were her legal representatives within the meaning of section 365 of the Code of Civil Procedure. Again in the case of Tribhuwan Sundar Kuar…(Plaintiff); v. Sri Narain Singh…(Defendant).* it was held by our brothers Banerji and Aikman that a reversioner succeeding to the estate of a deceased person after the death of the widow of that person would be bound by a decree obtained against the widow, provided that there was a fair trial of the suit in which the decree was passed, and that consequently the widow's right to sue survives to and devolves upon the heir of the husband entitled to the estate, and such heir, and not her personal heirs, should be her legal representative for the purposes of section 365 of the Code of Civil Procedure. When we turn to the definition of “legal representative” contained in section 2 of Act V of 1908, the question seems to us to be set at rest. Legal representative, as defined in that section, means “a person who in law represents the estate of the deceased person, and includes any person who intermeddles with the estate of the deceased, and where a person sues or it sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.” It seems to us clear from this definition that the plaintiff as the reversionary heir to the estate of Baldeo Rai was entitled to be placed on the record in the place of Musammat Sheo Kunwar and to prosecute the suit as representing the estate of Baldeo Rai. There is no force therefore in this ground of appeal.

It is contended further that a tenancy subsists between the defendants appellants and Musammat Sheo Kunwar, and that action ought to have been taken under section 202 of Act No. II of 1901 and not in a Civil Court, There appears to be equally no force in this ground of appeal. The defendant Rikhai Rai in his written statement did not allege that he was a tenant of the plaintiff. He simply stated that he was in possession of the land in question as a tenant and that the plaintiff was the owner and zamindar. We agree in the conclusion arrived at by the lower appellate court as to this. For thee reasons we think the decision of the courts below is correct and dismiss the appeal with costs.

Appeal dismissed.