NAGPUR HIGH COURT

                                            Shamrao Bhagwantrao

                                                         Vs

                                                     Kashibai

                                       Misc. Civil Case No. 29 of 1952

                               (Hidayatullah and R. Kaushalendra Rao, JJ.)

                                                   12.03.1954

                                                     ORDER

R. Kaushalendra Rao, JJ.

1. This was a suit by Saraswatibai widow of one Parashram to obtain her share in the joint family
property on the strength of the Hindu Women's Rights to Property Act. The suit succeeded and a
'Vyavasthapatra' executed by the husband and the widow among others was held not binding on
Saraswatibai. As a result, a preliminary decree was passed in the trial Court and was confirmed
by us.

2. During the pendency of the application for leave to appeal to the Supreme Court as also the
proceedings for making the decree final, the widow died. Applications were made to bring the
legal representatives of the widow on the record of the suit as well as of the Miscellaneous Civil
Case involving the grant of leave. The legal representatives who claimed to join the suit were
Vasantkumar, an alleged adopted son of Parashram (adopted by Saraswatibai after the death of
her husband), kashibai daughter of Saraswatibai and Parashram, and Indubai step-daughter of
Saraswatibai.
In the suit these were opposed. The learned Judge held that the cause of action did not survive to
them and that the suit had ended as Shamrao the defendant was entitled to the whole property.
Appeals against that order by all the contestants failed before us.

3. In the leave matter, however, by agreement all the three persons were substituted. As a result
of our order in the appeals referred to last by us, the legal representatives have apparently lost all
interest. This was said to us in so many words but the parties did not state this in writing when
invited to do so.

4. The petitioner now says that Kashibai and Vasant Kumar are in possession of some property
and are intermeddlers and must be treated as legal representatives. Unless they give up these
properties and assure the petitioner that they are not intending appealing against our decision in
the appeals arising from the suit, he must go on with this petition for leave. He says that the
decision in the appeal sought to be appealed against would be used against him.
5. That these three persons are intermeddling with the property does not necessarily save the
cause of action. The right under the Act is a special one. The daughters and the so called adopted
son do not derive any right from the widow. That right came to an end with the death of the
widow. As regards the adopted son, his position is unique. Assuming that he is validly adopted, it
is quite plain that he has an independent right to partition. He cannot, however, continue the suit
founded on a right personal to the widow under a special enactment. A cause of action is not
extended by reason of the death of a party. A legal representative fights essentially the same suit
which the original plaintiff began : See - 'Rat Charan v. Biswa Nath1', This suit the adopted son
cannot now continue as the cause of action does not survive to him. He will have to bring his
own suit to establish his right.

6. As regards the property in the hands of the daughter and the adopted son, the petitioner is not
to gain anything by the appeal. He will in any event have to bring another suit. Indeed, there is no
opposite party now and the plaintiff and defendant become one person. Such a suit cannot
continue : See - 'Rustomji v. Purushottamdas2',

        (1) In our opinion, this petition has become infructuous by reason of merger of interest
        and also because the cause of action does not survive to any one but Shamrao the
        petitioner. The judgment of this Court affirmed the decree of the Court below and though
        the claim is above the mark, no substantial point of law, even if one be there, (and we do
        not decide this) survives between the parties as there are no parties. See in this connection
        - 'Subba Rao v. Krishna Prasadam3', - 'Gurudayal v. Sarju4',

7. The petition shall be filed but with liberty to apply if Vasant Kumar, Kashibai and Indubai
make an application for leave to appeal to the Supreme Court. In the circumstances of the case,
parties shall bear their own costs.
Order accordingly.

Cases Referred.

1 AIR 1915 Cal 103
225 Bom 606
3 AIR 1954 Mad 227
4 AIR 1952 Nag 43