The right to sue does not survive the death of a plaintiff if the right to sue is based on a life interest that has lapsed, and the proposed legal representative is not the legal representative of the deceased plaintiff within the meaning of Section 2(11) of the Civil Procedure Code, 1908.

MOHAPATRA, J.

( 1 ) THIS civil revision is against an order of the Subordinate Judge of Berhampur allowing defendant No. 4 to be substituted as the legal representative of the deceased plaintiff in Title Suit No. 29 of 1951 in the Court of the Subordinate judge of Berhampur, The original plaintiff who died on 22-11-1951 was the widow of late Varada Kameshwar Rao Naidu Garu. The first defendant Varada Vizaya rama Rao is the first son of the said Kameswar Rao and the fourth defendant Varada bhavan Narayan Rao is his second son. Defendants 2 and 3 (Varada venkatakameswar Rao and Varada Venkateswar Rao) are the two sons of defendant no. 1, The widow of Kameswar Rao (the plaintiff, Varada Mahalakshmi Amma)brought this suit on 7th May, 1951 on the following allegations :

"the joint family consisting of the father, the two sons (defendants 1 and 4), the two grandsons (defendants 2 and 3) and the widow (the plaintiff) owned extensive properties. Kameswar Rao having felt that he could no longer continue to manage the extensive properties considered that during his life time a partition of the joint family properties was necessary in the best interest of the joint family and eventually, in exercise of his powers as the father-manager of the joint family, effected a partition of the joint family properties in three equal shares in a just and equitable manner after making a small provision for his twelve grand-daughters. The partition-deed was executed on 24-4-1949 and registered on 9th May, 1949. "

Of the said partition-deed, the properties described in Schedule A of the deed were allotted to Kameswar Rao, the properties mentioned in schedules Band C of the said deed were respectively allotted to the first and the fourth defendants. According to the plaintiff the two sons had consented to the said partition even though it was executed by the father alone. On 15th August 1949, Varada Kameswar Rao executed a will whereby he bequeathed all the immovable properties that were allotted to his share in the partition referred to above to his wife, that is, the plaintiff, for life and after her to the first and the fourth defendants absolutely. The first defendant would be entitled to absolute rights in respect of the properties described in Schedule of the Will and the fourth defendant would be entitled to absolute rights in respect of the properties described in Schedule of the Will. By the said Will, Kameswar bequeathed all his movable properties to the plaintiff, that is, the widow, absolutely with a legacy of Rs. 35,000/ -. It is to be mentioned here that the movables are not the subject matter of the present suit. Kameswar died on 26-11-1949 and the Will was shown to the respectable people present on the eleventh day of his death; a copy of the Will was also given to the first defendant Thereafter the Will was presented for registration and was registered after necessary enquiry.

( 2 ) THE plaintiff's further allegation was that after the death of her husband she was entitled to a life interest in respect of the properties bequeathed to her by her husband; the Will having been accepted and given effect to by defendants 1 and 4, they (defendants 1 and 4) had absolutely no interest in the properties bequeathed in her favour which are the subject matter of the present suit during her life time; that she was also in exclusive possession and enjoyment of the suit properties in her own right; but defendant No. 1 was approaching her (the plaintiff) and the 4th defendant several times to get the partition made by the father annulled, but his request to that effect was definitely refused and thereafter defendants 1 to 3 had been attempting to forcibly trespass on the suit properties by means of false propaganda and threats and had been trying to win over the tenants and collect rents from them. The widow-plaintiff therefore brought the present suit praying for the following reliefs:

" (a) declaring that the plaintiff is entitled to the properties de