Judgement

Petition for an order substituting the petitioner for the deceased appellant, and for an order for revivor of the appeal.

The deceased appellant, on August 1, 1907, instituted a suit in the High Court claiming a declaration that the adoption of the second respondent by the first respondent, a Hindu widow, was invalid and did not affect his reversionary interest. The circumstances appear fully from their Lordships judgment.

The first respondent pleaded that she had authority to adopt under her deceased husbands will; the

Law Rep. 42 Ind. App. 125 ( 1914- 1915)

V. Venkatanarayana Pillai V. V. Subbammal 29

appellants case was that a later will had the effect in law of revoking this authority.

The trial judge held that the authority to adopt was not revoked, and dismissed the suit. The High Court in its appellate jurisdiction affirmed this decision and granted leave to appeal to His Majesty in Council. The appeal was entered on November 6, 1913, and on November 19, 1913, the appellant died.

The present petitioner, Kuppusami Pillai, a grandson of the deceased appellant, was his sole heir and representative, and upon his (the appellants) decease became the next presumptive reversioner.

Sir R. Finlay, K.C. and Dube, for the petitioner. If the appeal is not revived and prosecuted the petitioner and all other reversioners will be bound by the decree of the High Court as res judicata against them Chirovolu Punnamma v. Chirovolu Perrazu. (( 1905) L L. R. 29 Madr. 390.). That decision of the Full Bench is right and the later decision in Arunachalam Pillai Minor v. Vellaya Pillai (( 1912) 23 Madr. L. J. 719.) is erroneous.

De Gruyther, K.C.9a,n&Kenworthy Brown, for the respondents. The decision reported 23 Madr. L. J. 719 is right. The earlier case reported I. L. E. 29 Madr. 390 was decided upon its special facts; the learned judges who decided it were parties to the decision in the former case. Upon the death of the appellant the suit and proceedings abated; the decree is not res judicata against the petitioner. In Hindu law a reversioner has only a spes successionis; he claims as direct heir and not as successor to any other reversioner. Under s. 43 of the Specific Belief Act, 1877, the decree is only binding upon the parties and persons claiming through them. [Sect. 42 and illustrations (e) and (/) under that section were also referred to.] Order xxii, r. 1, of the Code of Civil Procedure, 1908, does not apply, as the right of the plaintiff to sue does not survive; the petitioners right is a different right. The petitioner is not the " legal representative " within the meaning of s. 2, sub-s. 11, of the Code so far as relates to the claim in the suit. It is well established that a suit by a reversioner for a declaration that an alienation by a Hindu widow is invalid abates upon the death of the plaintiff and that a decree in a suit of that character is not res judicata against the other reversioners Sakyahani Ingle Rao Sahib v. Bhavani Bozi Sahib (( 1904) I. L. R. 27 Madr. 588. Bhagwanta v. Sukhi (( 1899) I. L. R. 22 Allah. 33.); Govinda Pillai v. Thayammal (( 1904) I. L. R. 28 Madr. 57.) ; China Veerayya v. Lakshminarasamma. (( 1914) I. L. R. 37 Madr. 406.) This view is supported by dicta of the Board Tekait Doorga Persad Singh v. Tekaitri Doorga Konwari (( 1878) L. R. 5 Ind. Ap. 149, at p 163.); Isri Dutt Koer v. Mussamat Hansbutti Koerain. (( 1883) L. R 10 Ind. Ap. 150, at p. 157.) The same principles apply to a reversioners suit to set aside an adoption. The petitioner could not have been joined as a plaintiff Rani Anund Koer v. Court of Wards (( 1881) L. R. 8 Ind. Ap. 14, at p.22.); there was no just cause of action within Order n., r. 3, of the Code of 1908.

Sir R. Finlay, K.C., in reply. The Court has a discretion to allow a reversioner other than the next reversioner to be joined; Order n., r. 3, does not prevent that course. There is a distinc tion between suits to set aside an adoption and suits to declare a widows a