Validity of a suit filed by a deceased person and the applicability of Order 1, Rule 10 of the Civil Procedure Code.

Niyogi, J—This is an application under Section 115, Civil P.C., to revise an order dated 26-7-1944 passed by the Subordinate Judge, 2nd Class, Pusad, in Civil Suit No. 219-A of 1943. The suit out of which this proceeding arises was filed by Kashinath and Sadashiv, in whose favour the sale deed dated 28-10-1941 had been executed, on the allegation that field S. No. 313 recited in the sale deed was a mistake for s. No. 312. They instituted the suit on 3-12-1943 for rectification of the instrument, after Sadashiv Lohar had died on 30-11-1943. His sons and widow applied for substitution as his legal representatives and the lower Court allowed the substitution by order dated 3-7-1944. On the next day the defendants contended that the suit, which purported to be filed by a dead person, was an absolute nullity and that the order allowing substitution was illegal. They also prayed for the dismissal of the suit as a whole on the ground that the cause of action for the suit was one and indivisible. The lower Court conceded that the substitution could not be made under Order 22, Rule 3, Civil P.C., as the suit so far as Sadashiv was concerned was not properly filed, he was dead on the date the plaint was presented. But it held that his legal representatives were entitled to be brought on the record under Order 1, Rule 10, Civil P.C.

2. The lower Court in taking the view that the suit was governed under Order 1, Rule 10 followed my decision in Karimullah v. Bhanu Pratap Singh, 1938 AIR(Nag) 458 in which I had observed that the applicability of Order 1, Rule 10 does not depend upon ''the wrong person'' being alive or dead and that it only contemplates that a suit should have been filed in the name of wrong person irrespective of whether he is living or a dead person. My attention is invited to Municipal Corporation, Karachi v. Baradio,1916 AIR(Sind) 20 where my view was criticised. I may point out that my observations were made with reference to the particular facts of the case then before me and the observations themselves show that if a suit is filed in the name of a dead person as the sole plaintiff the plaint is void; and it was particularly pointed out that the presentation was improper. The main question for consideration under Order 1, Rule 10 is whether the suit was properly instituted. In other words whether the plaint was properly presented. Now in a suit them may be only one plaintiff or more than one. If the sole plaintiff or all the plaintiffs instituting a suit is or are dead, the plaint is one that is presented by a dead person or persons. The institution of the suit therefore is void and is of no effect. No question of mistake or misdescription of party is involved in such a case so as to attract the application of Order 1, Rule 10.

3. But there are cases in which a suit instituted by the sole plaintiff may so far as the presentation of the plaint is concerned be deemed to be properly instituted notwithstanding that the name of the plaintiff is misdescribed. To take an example, A son of B is a real plaintiff who authorised his pleader to file a suit. By a mistake in the plaint that is presented the plaintiff is described as A son of X. Now this individual A son of X may be a living or a dead person; but if the identity of A son of B is established as the real plaintiff in the case, the description of his name as A son of X would be a case of mistake such as would not invalidate the plaint but would permit of the mistake being corrected under Order 1, Rule 10. Another case of a sole plaintiff is furnished by Karimullah v. Bhanu Pratap Singh, 1938 AIR(Nag) 458. In that case the Surmal estate was under the management of the Court of Wards. Under Section 27, C.P. Court of Wards Act, the Manager of the Court of Wards could only be named as the next friend. The proprietor of the estate had no locus standi except as a ward of the Court. The real plaintiff was the manager and the person who was named as the proprietor of the