Surrender by a limited owner like a Hindu widow does not amount to a civil death and hence, O. XXII, R. 3 of the C.P. Code is not attracted.

JUDGMENT :- This second appeal raises an interesting question as to the scope of O. XXII, R. 9, C.P. Code. The legal representatives of the plaintiff are the appellants. The suit was for a declaration of the plaintiffs title to the suit properties and for recovery of possession thereof from the respondent. The properties admittedly belonged originally to one Ramakrishna Aiyar, who died in April 1903, leaving his son Ramachandran and widow Ramammal. Ramachandran died in October 1903, and his mother, as his heir, succeeded to the suit properties. Ramammal instituted O. S. No. 440 of 1952 on the file of the Court of the District Munsif, Tirupattur, against the respondent for a declaration of her title to the suit properties and for recovery of possession thereof. She claimed that the respondent was her lessee and was denying her title by setting up adverse possession, While this suit was pending, she surrendered the suit properties to the plaintiff in the present suit on 6th September 1954. O. S. No. 440 of 1952, for some reason, was not pursued by the present plaintiff with the result it was dismissed on 6th September 1955, for non-prosecution. The suit out of which this second appeal arises was instituted on 5th February, 1955. This suit proceeded on the basis that the respondent was a lessee and the plaintiff as a surrenderee was entitled to evict him. The trial Court took the view, the lower appellate Court agreeing with it, that the suit was barred under O. XXI, R. 9, C.P. Code and dismissed it. On the other issues, both the Courts below found that the surrender was true, that the plaintiff had title to the suit properties and that the defendant was a tenant liable to be otherwise evicted. The only question in this second appeal is, therefore, whether the view of the Courts below as to the scope of the said rule is correct.

2. Sub-rule (1) of R. 3 of Order XXII of the C. P. Code provides for the procedure in case of death of one of several plaintiffs or of sole plaintiff. Sub-rule (2) of the same rule indicates the effect of failure to take steps under the first sub-rule. If on the death of a plaintiff the cause survives and the legal representatives are not brought on record by an application made within the prescribed period of limitation, the suit shall abate. In such a case, Rule 9(1) raises a bar to a fresh suit on the same cause of action. Sub-rule (2) of this rule provides for setting aside the abatement by an application, on sufficient cause being shown for not taking steps within the period of limitation. The Courts below thought that a surrender by a limited owner like Ramammal amounted to a civil death and to such a case Rule 3 of Order XXII will be attracted. Apparently their view was that death within the meaning of that rule would include a civil death, so to speak. In my opinion, this view of the rule is not warranted. No one will suggest that a widow who surrenders her limited estate under the Hindu law suffers thereby a physical death. But, as under her personal law, surrender has the effect of accelerating succession, and succession can open only on the death of the limited owner, the fiction has been introduced by Courts that by surrender succession is accelerated as if she suffered a death. In other words, it is an assumed death, an abstraction or fiction of the law. That is what the Supreme Court pointed out in Natvarlal v. Dadubhai, 1954 SCJ 34 : (AIR 1954 SC 61). It was there observed :

"Nobody says that the surrendering widow actually dies. It is a fiction of law pure and simple ........."

It was also mentioned by the Supreme Court that the law of surrender by a Hindu widow, as it stands at present, is for the most part, judge-made law, though it may not be quite correct to say that there is absolutely no textual authority upon which the doctrine could be founded, at least, impliedly.

3. There is no indication in Order XXII, Rule 3 of the C. P. Code that it includes or comprehends such a fictiona