Right of real owner to come on record after the death benamidar.

The point that arises is this revision petition is whether the order of the District Munsif of Tindivanam allowing a petition to implead the first respondent as plaintiff is correct. The facts are these.

The plaintiff in O.S. No. 162 of 1959 on the file of the District Munsif of Tindivanam died and his two widows (Respondents 2 and 3 in this petition) were brought on record. The suit was for recovery of possession of certain properties on the basis of title created by a document of sale in favour of the deceased plaintiff. The first respondent filed a petition under Order 22, rule 3, Civil Procedure Code, seeking to come on record as the legal representative of the deceased plaintiff and to continue the suit. His case was that the property in dispute belongs to him and that the deceased plaintiff was his benamidar, the document of sale having been executed in his favour only to enable the recovery of the property, the first respondent claiming that as he was residing elsewhere, he was not in a position to institute and continue the action. The first respondent also alleged that on finding that the widows, the legal representatives of the deceased plaintiff, were acting adversely to his interest, he found it necessary to come on record by himself and to prosecute the suit.

Though the learned District Munsif rightly held that neither Order 22, rule 3, Civil Procedure Code, nor Order 1, rule 10, Civil Procedure Code, would apply to the facts of the case, yet, under the circumstances, the principles underlying these provisions should be liberally construed. He thought that the apprehensions of the first respondent that the widows of the deceased plaintiff were colluding with the defendant in the suit were not ill-founded and in order to protect the interests of the first respondent, the person claiming to be the real owner of the property, it was not proper to allow the widows to continue to prosecute the suit as plaintiffs. He accordingly directed the first respondent to be brought on record as the second plaintiff and the legal representatives of the deceased plaintiff to be transposed as defendants in the suit.

The defendant in the suit questions the correctness of this order.

There is considerable authority for the position that a benamider can maintain an action in his own name and that so long as the benamidar does not purport to sue in a representative capacity, the real owner cannot come in on his death under Order 22, rule 3. It was so decided in Doraiswami Thevar v. Chidambaram Chettiar1 . Jackson, J., relied upon an earlier decision in Periannan Chettiar v. Rangachi Reddi and Maruthi Pillai2 . This decision proceeded upon the well-recognised principle that a legal representative as defined under section 2 (11) of the Civil Procedure Code will not include the real owner. Whether the real owner can intervene and claim to be brought on record during the lifetime of the benamidar suing as the plaintiff is not the question that arises now. The alleged benamidar is dead and on his death, the law allows only his legal representatives to be brought on record. There is no doubt that the real owner will not be the legal representative within the meaning of section 2 (11) of the Civil Procedure Code.

It is also clear that Order 1, rule 10, which was partly relied upon before the lower Court has no application. None of the conditions contemplated in this rule obtains in this case. Sub-rule (2) of rule 10 enables the Court to direct that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. Even this sub-rule cannot apply. The suit was laid by the deceased plaintiff on the allegation that he had purchased the property on payment of consideration to the first respondent, and had acquired title to the property. The