No appeal against order of dismissal of appeal filed.

This Civil Revision Petition is filed against the order of the District Judge of West Tanjore dismissing the petition of the petitioner herein praying that he may be impleaded as an appellant in A.S. No. 15 of 1947, which arose out of O.S. No. 206 of 1943. The petitioner is the legatee under a will executed by the appellant in A.S. No. 15 of 1947. The appellant in A.S. No. 15 of 1947 had filed a suit, O.S. No. 206 of 1943 on the file of the District Munsif’s Court, Tiruvadi, for dissolution of partnership and for accounts against one Abraham Pillai and eight others. In the said suit the present petitioner’s predecessor-in-interest who was plaintiff claimed that she was a partner in a rice mill along with the first defendant in the suit, and that the partnership was started with the plaintiff and the first defendant as partners, they being entitled each to a moiety of the business, each having contributed a sum of as much as Rs.1,052 and odd. The first defendant paid the plaintiff some sundry amounts, but never divided the profits with the plaintiff in the suit. The business consisted of a rice mill with a Blackston engine of 20 Horse-power and other accessories along with the superstructure and the land on which the superstructure stood. The learned District Munsif of Tiruvadi, who tried the suit dismissed the same with costs holding that the plaintiff was not entitled to any amount or other relief. Against this decision the plaintiff preferred the appeal, A.S. No. 15 of 1947.

When the appeal was pending, the appellant, Thaiappal Anni alias Meenambal Anni, executed a will in favour of the present petitioner, Srinivasa Mudaliar, and died some time later. By the will, the said appellant in A. S. No. 15 of 1947 bequeathed the subject-matter of the appeal to the petitioner. The relevant portions of the will dated the 28th July, 1947, are as follows:

“There were disputes with regard to my share in the rice mill at Ayyanapuram, Tanjore taluk and in respect of the same I filed O.S. No. 206 of 1943, on the file of the District Munsif’s Court, Tiruvadi. It was dismissed and on that I have filed an appeal A.S. No. 15 of 1947 on the file of the District Court, Tanjore, and the same is pending disposal. If per-chance I should die before the said appeal is disposed of, Srinivasa Mudaliar, son of Chokkappa Mudaliar of Neppukoil (my younger brother) shall after my death continue the said appeal as my legal representative, himself realise the monies that may be obtained as a result of success in the said appeal and enjoy the same with all absolute rights. By this will I have given all my rights in the said appeal after my death to the aforesaid Srinivasa Mudaliar. I have consented thus and executed this will out of my free will. This will shall come into force after my death.”

The petitioner herein filed the petition, I.A. No. 363 of 1947, under Order 22, rule 3, Civil Procedure Code, praying to add him as legal representative of the deceased appellant and as second appellant. The counter-petitioner to the said I.A. No. 363 of 1947 opposed the petition on legal grounds and also put the petitioner to strict proof of the will.

The question that arose for decision by the learned District Judge was whether the terms of the will validly entitled the petitioner to be treated for the purpose of the appeal as the legal representative of the deceased appellant. The learned District Judge dismissed the petition for being brought on record as legal representative following the decision in Rajamanickam Chetti v. Abdul Halim Sahib1 and stating that what was assigned to the petitioner by the original appellant was only a mere right to sue and that under section 6(e) of the Transfer of Property Act a mere right to sue cannot be transferred. The learned District Judge also dismissed the main appeal as having abated in consequence of having dismissed the petition of the present petitioner for being brought on record as legal representative of the deceased