Padarath Singh v. Raja Ram

Straight, J. and Brodhurst, J., concurring):— The two suits involved in these Second Appeals 51 and 52 of 1881 were instituted on behalf of the minor plaintiff, Raja Ram, by his guardian and mother Akauti Kuar, against Mathura Singh his father, Sheo Saran Singh and Dukhi Singh mortgagees, and Padarath Singh auction purchaser, to recover a half share of certain ancestral properties, which it was alleged had been improperly incumbered by the said Mathura Singh, and subsequently sold in execution of decrees obtained on the mortgages executed by him. The Munsif dismissed the minor plaintiff's claim in both suits, but on appeal the Subordinate Judge, reversed his decision, and decreed the relief prayed.

The auction-purchaser, defendant, now appeals to this Court. It appears that since the appeal was filed the minor Raja Ram has died, and that upon the, application of the appellant Akauti Kuar, hitherto his guardian for the suit, has been substituted as his legal representative.

When the case came on before us for hearing a preliminary objection was taken by Munshi Kashi Prasad, the pleader for the appellant, that any right the minor Raja Ram might have had to maintain the present suit lapsed with his death, that he never acquired any individual separate interest in the joint family property, which would be inherited under the Mitakshara by his mother, and that therefore no cause of action survived his decease. This contention came with strange inconsistency from the appellant, who himself caused Akauti Kuar to be brought upon the record as the heir and legal representative of the deceased minor. I am, however, not prepared to hold that, by so doing, he has estopped himself from denying her status to continue the suit. The substantial point for determination is, whether on the death of the minor Raja Ram any right to sue survived to Akauti Kuar as his heiress? I am clearly of opinion that it did not Raja Ram and his father Mathura remained joint until the death of the former, and there was no partition or division of shares among them; on the contrary they preserved all the characteristics of a joint family. Under the Mitakshara Akauti Kuar would, in the even; of her son having acquired separate estate, have succeeded to it as his heir in preference to his father. But this is beside the question now before us. Raja Ram never had any higher or better interest than that which exists in every member of a joint and undivided Hindu family, and the mere circumstance that he asserted his right to a certain portion of the ancestral estate, and had brought the present suit to set aside an alienation thereof effected by his father, did not create any separate title in him. It appears to me, therefore, that whatever right to sue existed was personal to the minor Raja Ram, that Akauti Kuar is not his heir, and therefore cannot continue the suit, which should be dismissed. The appeal must be accordingly decreed with costs in the two lower Courts. As the appellant chose to bring Akanti Kuar on the record in the character he did, he will pay her coats in this Court.

Appeal allowed.