C.B. Bhargava, J.
1. This is an appeal from the judgment and decree dated 10th December, 1958, of the District Judge, Kota.
2. Rahim Bux and Mohammed Subhan originally instituted the suit for partition of immovable properties mentioned in Para 4(15, (2) and (3) in the plaint situated in the city of Kota. Mohammed Sobhan's name was subsequently removed from the array of plaintiffs and the suit continued at the instance of Rahim Bux alone. During the pendency of this appeal, Rahimbux died and Mohammed Subhan was substituted as his legal representative vide order of this Court dated 21st January, 1965. Plaintiff's case is that his ancestor Ibrahim had seven sons and the suit properties were acquired by them with their joint earnings. It is alleged that the parties were originally Hindu Rajputs but were subsequently converted to Muslim religion, but a custom still prevails among them that a female does not get any share in the property of the deceased. It is alleged that Yasin one of the sons of Ibrahim died issueless, Gulab Mohammed died issueless and Ilias and Gendaji died without leaving any male issue. Plaintiff, therefore, claimed half share in the entire property. Defendants were alleged to have the remaining half share in the property in the proportion that Shaffiuddin defendant No. 1 and Abdulla defendant No. 2 had 9/40th share each and Chhotia, Azimulla and Allahnoor defendants Nos. 3, 4 and 5 respectively l/60th share each. It was alleged that parties had been in joint possession of the suit property and have been sharing its profits, but for some time the defendants had denied the plaintiff's right in the property and discontinued giving him the share of profits and so the suit is instituted. As stated earlier, the suit was originally instituted against five defendants who are all in the line of Ahmedji one of the sons of Ibrahim. Descendants of Mohammedji. Ilyas, Quadir and Gendaji and some of the descendants of Ahmedji were not impleaded in the suit for the reason that by custom the females were excluded from inheritance. Descendants of Mohammedji, who was described as Gulab Mohamed in the plaint, were not impleaded as party on the ground that he had died Issueless. During the suit, Azimulla defendant No. 4 died and his son Abdul Samad and Mst Bafati, his wife, were brought on record as his legal representatives.
3. Allahanoor defendant admitted the plaintiff's claim but the other defendants contested the suit and they submitted a pedigree table of all the descendants of Ibrahim which the lower court after trial has found to be the correct one. The contesting defendants denied that the plaintiff had any share in the suit property. It was stated that the properties had been acquired after me death of Quasim, that is the grandfather of Rahim Bux and so the plaintiff did not have any share in the proper files. Existence of custom by which females were excluded from inheritance was also denied. It was stated that all the descendants of Mohammedji Ahmedji. Ilyas Quadir and Genda, both male and female, whose names had been shown in the pedigree-table, were necessary parties to the suit. It was also stated that the contesting defendants were in exclusive possession of the suit properties and in regard to property Nos. (1) and (3) of para 4 it was stated that the contesting defendants had become their full owners because of certain transfers made in then favour by the other co-sharers. No case was set up in the written statement that any other descendant of the sons of Ibrahim other than the contesting defendants was in possession of the suit properties.
4. Issues were framed in the case on 9-11-1948 and then the following Issues were framed on 20th July, 1954:
1. Whether the plaintiff has half share in the suit property?
2. What is the property liable to be partitioned?
3. Whether the suit is within limitation?
4. Whether the suit property was acquired by all the sons of Ibrahim and they purchased it by their own earnings?
5. Whether there Ss a custom among the Muslim Luhars of Ajmer Merwara and Rajputana, who became Muslim Luhars converts from Hindu Rajputs and of whom the parties are, that a woman whether she be daughter, widow, sister, mother or any other, does not inherit a man's property and she does not get any share according to Muslim Law (Sharivat)?
6. Whether the present suit suffers from the defect of non-joinder of necessary parties?
7. Whether the defendants' possession over the suit property is adverse?
8. Whether the plaintiff has no right in that suit property, which was acquired after the death of Kasimji?
9. Whether the value of the suit property is about one lac rupees and hence deficient court-fees had been paid on the plaint?
10 Whether the plaintiff is estopped from pleading the custom, mentioned in the plaint?
11. What will be the relief?
5. Both parties led evidence in support of the above issues and the court after holding that it had jurisdiction to hear and determine the suit, came to the finding on the main issue that though it had not been definitely proved as to when the suit property was acquired that Is after the death of Quasimji, the grandfather of Rahimbux or before that, vet the plaintiff had been admitted a co-sharer in the property and could claim share. The lower court did not determine the extent of the plaintiffs share. Issue No, 5 about the exclusion of females from inheritance on account of custom among the Muslim Luhars in Aimer Merwara and Rajputana was decided against the plaintiff. Having come to the finding on issue No. 5 the court held that female descendants of Kadar. Iliyas, Yasin, Mohammed and Gendaji and their sons and grandsons who were alive and who could claim share according to Mohammaden Law in the suit property were all necessary parties to the suit. Issue No. 7 was decided against the defendants and it was held that they had failed to prove their adverse possession against the plaintiff. Issue of limitation was also decided in favour of the plaintiff. On the finding that necessary parties had not been ioined in the suit, it was dismissed but the parties were left to bear their own costs.
6. On 3rd November, 1969, and then again on 4th November, 1969, applications were made on behalf of the appellant to add 33 persons named in the applications as party-defendants and respondents in the appeal. Of these Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 24A, 24B and 29 as correctly described in the application dated 4-11-1969 put in appearance through their counsel and raised no objection to their being impleaded as parties to the case. They also made no request for a fresh trial against them. Later on, persons mentioned at Nos. 17, 20 and 21 submitted their objection to being made parties at this stage as the suit had become barred by time. Then again on behalf of Babu and Kuma mentioned at Nos. 20 and 21 of the application dated 3rd November, 1969, affidavits were filed duly verified before a Magistrate saving that they had not preferred any objection to their being made a party and that they may be allotted their share without remanding the case for a fresh trial, Similarly, an affidavit was filed on behalf of Mst. Subran mentioned at No. 17 of the application. Persons named at Nos. 10, 25. 26, 28, 30, 31, 32 and 33 submitted their objection to being made a party at this stage as the suit had become barred by limitation and also because a fresh trial will have to be made against them. Persons mentioned at Nos. 11 and 27 did not put in appearance.
7. When the appeal came up for hearing learned counsel for the parties agreed that arguments may be heard on issue No. 6, namely, whether the suit suffers from non-joinder of necessary parties. Contention of learned counsel for the appellant in this connection is that it is not the case of either the plaintiff or the contesting defendants in the pleadings that any other descendants of the sons of Ibrahim are in possession of the suit property. It is contended that on the death of a Muslim, the property devolves upon his heirs in definite shares and one of the heirs can Institute a suit for partition claiming his own share from those who are in possession of the property without impleading the other heirs.
8. On the other hand. It is urged on behalf of the respondents that in a suit for partition all the co-sharers are necessary parties and the suit must fail if some co-sharers have not Ioined in spite of the objection in the lower Court.
9. Order 1 Rule 10, C. P. C. makes out a distinction between persons who ought to have been joined as plaintiffs or defendants and those without whose presence the question in the suit cannot be completely decided. In the former case, they are necessary parties to the suit and in the latter, they are only proper parties. Although in a suit for partition under the Mitakshara law, all the persons interested in the property are necessary parties, because in such a case it cannot be predicated what share an individual member has in the undivided coparcenary, but this is not the case under the Mohammedan Law where the heirs are only tenants-in-common and whose shares are definite and specified In law. But in the case of Muslims where an heir claims more than what he is entitled to under the Mohammedan law to the exclusion of the share of other persons who are so entitled under that law, it is necessary that the persons whose exclusion is sought must be joined in that suit because any decision given in their absence would not be binding upon them and would be ineffectual. In the suit as framed, the plaintiff did not claim only that much share to which he would have been entitled under the Mohammedan Law but claimed more than his share on the ground that the female heirs of other sons of Ibrahim were under the custom prevalent amongst the Lohars in Aimer Merwara and Rajputana excluded from inheritance. The determination of the plaintiff's share necessarily involved the decision of this question whether under the alleged custom female heirs got any share in the property of the deceased or not and for the decision of that question, presence of those heirs was necessary.
10A. Faced with this situation, learned counsel for the appellant made an application before this Court confining plaintiff's claim to l/7th share only and abandoned the remaining part of his claim. It is pointed out that the plaintiff would, in any case, be entitled to l/7th share in the suit property because it is alleged to have been acquired with the joint earnings of all the sons of Ibrahim. Notice of this application has been given to the respondents. It is certainly open to the plaintiff to abandon the whole or any part of his claim at any stases of the suit and so as a result of this application. Plaintiff's claim is confined only to l/7th share in the suit property provided he is proved to have that much share in it. The question of joinder of parties shall now therefore be considered in the light of the application by which the plaintiff has abandoned his claim beyond l/7th share.
10. In Moideensa Rowthen v. Md. Kasim Rowthen, AIR 1916 Mad 248 it was held:
'Under Mohammedan Law the estate of a deceased person devolves on his death on his heirs, each of whom becomes entitled to his definite fraction of every part of the estate. Therefore a suit in which one heir claims to receive his share of the property of the deceased from another heir is not a suit for 'partial partition', as understood in Hindu Law. Such a suit is legally maintainable though It ought, as a rule, to take the form of a suit for the administration of the estate of the deceased.'
11. In Mst. Zabaishi Begam v. Naziruddin Khan. AIR 1935 All 110 which was also a case of Muslims, it was held that:--
'When the Interest of the person not made a party to the suit is distinct from the interests of the person who are parties to the suit, there is no justification for not dealing with the matter in controversy so far as the rights and interest of the parties actually before the court are concerned. Hence where a Mohammedan heir who is out of possession against the co-heirs and omits to implead one of the co-heirs, there is no reason why he should not be granted a decree for so much of his share as is in possession of the heirs who are made parties to the suit, as the interest acquired by the heirs of a deceased Mohammedan in his property are always definite, distinct and ascertained, and as such the absence of one of the co-heirs from a suit brought by another co-heir for possession of his share cannot be a ground for dismissing the suit.'
In this case, the learned Judges after pointing out the provisions of Order 1, Rule 9 C. P. C. and of other rules in Order 1 observed that,
'It is manifest from these provisions that the non-joinder of a necessary party cannot by itself be a ground for dismissing the suit and that the Court Is bound to adjudicate on the rights of the parties actually before It.'
Then they further observed that :
'There is however another well recognised rule which, so to say, constitutes an exception to the general rule noted above. That rule is that a Court will refrain from passing a decree which would be Ineffective and infructuous and the reason for this rule is obvious. It would be idle for a Court to pass a decree which would be of no practical utility to the plaintiff and be a waste paper in the sense that the relief that it purports to grant to the plaintiff cannot be vouchsafed to him because of the objection of some person who is not bound by that decree. But this rule has no application to cases in which, notwithstanding the fact that some of the persons interested in the subject matter of the suit are not parties to the suit, the Court is in a position to pass a decree that is capable of execution and cannot be render ed nugatory at the instance of persons not made parties to the suit.
12. In Muhammad Afzal Khan v. Kariman Bibi, (1913) 20 Ind Cas 658 (All) It was held that
'Whether one of the several heirs of a deceased Muhammadan brings a suit to recover her share in the property left by the deceased, the other heirs are not necessary parties to the suit.
13. In Wajihunnissa v. Bankebehari Singh, AIR 1930 Pat 177 (FB) where persons who had not been joined were not in possession, it was held that the suit was not bad for non-joinder of parties and the persons not joined in the suit could certainly assert their rights in a properly constituted suit, and that the partition suit was maintainable.
14. These decisions no doubt support the contention of learned counsel for the appellant. Argument of learned counsel for the respondents is two-fold; (1) that even where the plaintiff claims only that share to which he is entitled under the Mohammedan Law in a suit for partition all the co-sharers whether they are in possession or not are necessary parties, and (2) that the present case is not where the plaintiff or his ancestors got any defined share in inheritance but here the allegation is that the property was acquired by seven brothers jointly and so he being the descendant of one of the sons has got l/7th share. It is argued that there is no proof on the record that the plaintiff has got any share at all in the suit property.
15. For the first argument, reliance is placed on Md. Ahmad v. Ansar Mohommad, AIR 1920 Oudh 173; Noor Mohammad v. Zainul Abdin, AIR 1940 All 399; Fazal Mohammad v. All Mohammad, AIR 1935 Oudh 36; Nathuram v. Abdul Latif, AIR 1935 Cal 478; Munshi Ram v. Abdul Aziz, AIR 1943 Lah 252; Churaman Mahto v. Bhatu Mahto, AIR 1935 Pat 241 and Kanakarathanamma v. Loganatha, AIR 1965 SC 271. These cases are however distinguishable.
16. The head-note in AIR 1920 Oudh 173 (supra) no doubt says that:
'In a suit for partition it is necessary that all interested parties should be joined either as plaintiffs or as defendants.
A suit by one of several heirs of a deceased Mohammaden to recover his share in the estate left by the deceased is practically a suit for partition and all the other heirs of the deceased must be impleaded as parties to the suit. If some of the heirs are not joined, where their joinder becomes impossible, the suit must be dismissed.'
But in this case it would appear that the suit was filed against one heir who was alleged to have -/9/6 annas share in the property the other heir having -/6/6 annas share was not impleaded as a party. The property was still undivided and the court, therefore, held that in such a situation 'the plaintiffs cannot maintain that the defendants are solely in possession of the property to which claim is laid. On the facts as stated, it is clear that no partition by metes and bounds having been made, the legal position is that Anwar Mohammad and his mother are also in joint possession with defendants 1 to 4.' So it is a case where relief was sought against those persons who had only -/9/6 annas share in the undivided property and the claim was not for joint possession but for separate and exclusive possession of certain share in the property. No effective decree for possession could therefore be given in that case in the absence of the other Persons who had share in that property.
17. In AIR 1940 All 399 (supra), the plaintiffs had claimed 721/2 shares on the basis of their title by descent from the common ancestor. The remaining 431/2 shares were claimed under the arrangement by Khair-un-nisa one of the plaintiffs with her husband In respect of dower and in such a way that if she was right, the interests not only of the plaintiffs and the defendants to the suit were to be affected but also of the heirs of the third brother Abdul Rahman who were not and never had been parties to those proceedings. In these circumstances, the learned Judge observed that 'the finding at which the learned Munsiff arrived in respect of 431/2 shares was one arrived at in a suit which, so far as the heirs of Abdul Rahman were concerned, was wholly ex parte.' because they were the people who were interested to resist Mst. Khair-un-nissa's claim and they were never before the court. It would, therefore, appear that it was only in respect of 431/2 shares that it was held that the heirs of Abdul Rahman were necessary parties.
18. In AIR 1935 Oudh 36 (supra) there are general observations that in a suit for partition ft is undisputed that every one of the co-sharers is a necessary party. But there the real question that arose was about the abatement of appeal on the death of some co-sharer respondents. So it was held that It would be impossible to decree the appeal against the other respondents when the decree must hold good against the legal representatives of the deceased respondents. That was a joint and individual decree and so the whole appeal was held to abate.
19. In AIR 1935 Cal 478 (supra) It was found that there were certain lands in the jote which were in the eimali possession of all the co-sharers of the entire jote of. Rs. 75/- and so it was held that all the co-sharers must be impleaded as parties thereto.
20. In AIR 1943 Lah 252 (supra) there are general observations that all co-sharers are necessary parties In a suit for partition, although that was a case where some formal defendants had not been impleaded as parties in the appeal and it was held that failure to include them was not fatal and they could be added even after the period of limitation had expired against them.
21. In AIR 1935 Fat 241 (supra) there are also general observations that in a suit for partition no decree can be passed for partition in the absence of single co-sharer of the village.
22. From these decisions, it would appear that all the co-sharers have been held to be necessary parties either when the plaintiff had claimed more than what he is entitled under the law so as to affect the right of the absente parties or where the absentee parties are in joint possession of the disputed properties along with the parties on the record and no effective decree can be passed in favour of the plaintiff. In AIR 1965 SC 271 (supra) the suit was instituted by one of the heirs under Ss. 10(2) and 12 of the Mysore Hindu Law Women's Rights Act (10 of 1933) for recovery of exclusive possession of the whole property in possession of the beneficiary under the will of the father. Under Act No. 10 of 1933, besides the plaintiff, her brothers were also co-heirs in the property left intestate by their mother. The brothers were not joined in the suit either as plaintiffs or respondents and the suit was in respect of the recovery of the whole property. It was held that the brothers were necessary parties to the suit, and as no application was made for impleading them even up to the stage the case was heard by the Supreme Court, the suit was dismissed for non-joinder of necessary parties. Learned counsel for the respondents placed strong reliance upon this decision and urges that here too It was the case of co-heirs which is not distinguishable from the case of Muslim heirs. But in this case the suit was by one of the co-heirs for the recovery of the whole property and 'it does not appear that the plaintiff wanted relief to the extent of her undivided share at any stase of the case. So in the absence of the brothers, no relief could be given to her in that suit.
23. In the present case, as already stated, the plaintiff has now confined his claim to l/7th share in the suit property which in view of the allegations made in the plaint cannot be said to be more than what he would be entitled to provided it is so proved and in the written statement it has not been said that any one else besides the contesting defendant is in possession of the property.
24. In Deputy Commr. v. Rama Krishna, AIR 1953 SC 521 their Lordships of the Supreme Court observed that the two tests for deciding whether a certain person is a necessary party in a proceeding are (1) that there must be a right to some relief against such party in respect of 'the matter involved in the proceedings in question and (2) it should not be possible to pass an effective decree in the absence of such party. Now applying these two tests to the present proceedings. It would appear that the plaintiff did not admit that besides the contesting defendants any one else had a share in the property or was in possession of it. Further as the contesting defendants are alleged to be In exclusive possession of the property, 'the decree if any passed in favour of the plaintiff with regard to his 1/7th share can be effectively executed against them without affecting the shares of those who have not been made parties. But if the other persons claim any share in the suit property, they can do so by instituting separate suit in respect of their shares. In view of this it cannot be said that the other persons who had not been made parties to the suit and who were said to be the descendants of the sons of Ibrahim are necessary parties because the present suit is now confined to l/7th share in the suit property.
25. I, therefore, hold that in view of the abandonment of the claim by the appellant, the suit does not suffer from non-joinder of the necessary parties; but in order to enable the Court to effectively and completely adjudicate upon the question in controversy, it may be proper that the persons mentioned in the applications dated 3rd and 4th November, 1969 by the appellant be made party respondents in this appeal and on this finding it may be necessary to send the case back to the lower court so that an inquiry about the rights of the plaintiffs be made in their presence. But learned counsel for the respondents urges that it will not be necessary to remand the case for this purpose because on merits the plaintiff has no case as he has not been able to prove that he has any share at all in the suit property and therefore he desires that the appeal may be heard on this point. Put up on 26th November. 1970.
26. Learned counsel for the respondent argued that because Mohammad Subhan's adoption by Rahimbux is not according to law and the will relied upon by him does not pertain to the property in dispute, he has no right to prosecute this appeal and on this ground alone this appeal should be disposed of. In support of his first contention, learned counsel has placed reliance on Section 28 of the Rajasthan Civil Courts Ordinance, 1950 and urges that all questions regarding succession. Inheritance, marriage or caste, or any religious usage or institution amongst Muslims should be determined according to Muhammadan Law which does not recognise adoption in any form. As for the second contention, attention is invited to the will and it is urged that it only relates to the personal and self acquired property of the deceased and not to the property in dispute. On behalf of the appellant it is contended that the question whether Mohammad Subhan is the legal representative of Rahimbux or not cannot be reagitated in this litigation because this Court by its order dated 21st January. 1965 has already decided it. However, learned counsel for the respondents points out that the question of Mohammad Subhan's adoption was not decided in this order and it is also silent on the point whether Mohammad Subhan under the will got any interest in the disputed property or not. What the learned counsel means to point out is this that even though the court decided that Mohammad Subhan is the legal representative of Rahimbux, it is still open to the respondents to urge that he has no interest in the disputed property and that question should now be determined upon a proper interpretation of the will as also on the evidence in regard to the alleged adoption.
It may be noted that on the death of Rahimbux an application was made by Mohammad Subhan on 2nd July. 1962 that Rahim Bux who died on 1st April. 1962 has neither left a widow nor any issue or any near relative who may succeed him except the applicant who is his adopted son according to the custom and in whose favour a will was also executed by the deceased. This application was contested on behalf of the respondents. The adoption as well as the execution of the will by the deceased in favour of the applicant were denied. This Court ordered an enquiry into the matter and the learned District Judge, after taking evidence of the parties gave a finding in favour of the applicant on both the points. He found that there was a custom of adoption and that Mohammad Subhan had been adopted by Rahim Bux as his son. He also found that Rahim Bux bad executed the will in favour of Mohammad Subhan, but because he had been adopted by the deceased, a bequest in his favour was not valid unless other heirs consented to it after the death of the testator. Objections were filed against the finding of the District Judge. The factum and validity of the adoption was challenged and in the application dated 18-9-1964 specific objection was raised that so far as the will is concerned, it does not pertain to the suit property situated at Kota and the will relates to the personal and self acquired property of the deceased which is situated at Bundi. This Court after hearing the objections of the parties thought it unnecessary to give any finding as to the adoption of Mohammad Suban by Rahim Bux, but on examination of the will held that there was no doubt that the deceased wanted to bequeath whatever rights he had in the property held by him to Mohammad Subhan after his own death.
Further objection was raised on behalf of the respondents that even if it be so, Mohammad Subhan would be only entitled to one-third share in the property of Rahim Bux. To this the answer of the Court was that it was not a matter which the Court was concerned at that stage and it was enough to say that Mohammad Subhan had undoubtedly some interest in the estate left by de-Ceased Rahim Bux. It is urged by learned counsel for the respondent that by this order the Court only decided that Mohammad Subhan was the legal representative of Rahim Bux because of the will in his favour and did not mean to say that he had received any interest or right in the disputed property because of the said will. It is true that it has not been very clearly said in this order that by virtue of the will Mohammad Subhan got any interest in the disputed property, but I am unable to accept this argument that while passing this order, the Court was not mindful of the specific objection which had been raised on behalf of the respondents. Whatever the case may be, it is not disputed that even if a person has got a fraction of share in the estate of the deceased, he can be recognised as his legal representative for prosecuting the litigation. It is also well settled that where a question arises as to whether any person is or is not legal representative of a deceased plaintiff or deceased defendant, such question shall be determined by the court. Once that question is decided and a person is substituted as legal representative of the deceased plaintiff or defendant, that order is final so far as that litigation is concerned.
In Balabai v. Ganesh. (1903) ILR 27 Bom 162, where on the death of the plaintiff one Balabai was substituted as his legal representative. Subsequently, however, it was discovered that Balabai was not the nearest heir and legal representative of the deceased. The first appellate court reversed the decree of the lower court simply for this reason and dismissed the suit. On appeal to the High Court the order of the first appellate court was reversed and it was held that the lower appellate court was wrong in going into the question as to Balabai's right to represent Mahadeo and dismissing the suit on the ground that she had no such right. In the course of the judgment it was observed,
'The case would, no doubt, have been different if the suit had originally been instituted by Balabai claiming as heir to Mahadeo or to Moreshvar. For, in those circumstances, Balabai would have based her suit on her right as heir, and would have been bound to establish it. But the suit, as instituted, was not based or dependent on Balabai's heirship, and could not properly be dismissed on her failure to prove her heirship. The question of Balabai's right to represent Mahadeo was. I think, a question which could only affect the decision as to the person who should be admitted on the record for the purposes of prosecuting the suit, and was not pertinent for the purposes of deciding whether Mahadeo's claim should be decreed or rejected.'
The learned Judge further observed,
'No decision is required or can be passed in such a case on the right of heirship; nor can the suit be dismissed on the ground that such right of heirship has not been established against all possible comers. A decision on that point would not be binding if passed in such a case, even between the rival claimants, and all that is needed and all that can be done in the suit is to decide who shall proceed with it, without in any way affecting the ultimate liability or right of the person in favour of whom or against whom the order is passed.'
27. In Jyoti Prasad Singh v. Semuel Henry Seddon. AIR 1940 Pat 516 the elder son was substituted in place of the deceased appellant and it was contended that the royalties for which the suit was brought were under the law not part of the impartible estate but were the personal property of the deceased proprietor and as such devolved after his death on his heirs under the ordinary law of inheritance. This argument was repelled and it was held that when in a suit or an appeal any party raises the question as to who is his legal representative it must be decided by the Court and its decision must be binding on the parties. Order 22, Rule 5 C. P. C. provides for the decision of such question, and the fact that an order passed under that rule is not appealable shows that the decision is of a summary character and for the purpose of the suit or appeal the person who is substituted in place of the deceased party shall be deemed to be his legal representative. In Kadir Muhideen Marakkayar v. Muthu Krishna Ayyar. (1903) ILR 26 Mad 230 it was held,
'that where a person who is not the legal representative is in fact brought on record as such and the court allows the wrong representative to be brought on record and to continue the litigation, the benefit of that litigation may be taken advantage of by the proper legal representative, and that the representatives on record will be accountable to him.'
28. The above observations were quoted with approval in Zamindar of Bhadrachalam v. Venkatadri. AIR 1922 Mad 457 (FB).
29. In Daulat Ram v. Mt. Meero. AIR 1941 Lah 142 it was held that a decision under Rule 5 of Order 22 C. P. C. should be limited to the purpose of carrying of the suit and cannot have the effect of conferring any right of heir-ship or to property. It was also held in this case that the decision under Rule 5 does not operate as res judicata.
30. Similar view was expressed in Kali Pachi v. Ramalekshmi, AIR 1953 Trav Co 158.
31. In Malook Dass v. Sahib Ram, AIR 1964 Punj 532 the suit was for possession by a Mahant. A chela was substituted in his place on his death. The suit was decreed in his favour. The first appellate court reversed the decision on the ground that the Chela was not the legal representative. The High Court reversed the decision of the first appellate court and held that the decision of the trial court cannot be reversed on appeal on the ground that the Chela was not the legal representative.
32. In Sheopujan Singh v. Chandi Singh. AIR, 1951 Pat 283 the Patna High Court also held that where an order under Order 22 Rule 5 is passed, the court has no jurisdiction to cancel the order and re-open the question and hold upon further evidence that somebody else had a better claim to be substituted in place of the deceased.
33. It is also equally well settled that after a legal representative is substituted in place of the deceased, the original parties' rights and disabilities have to be considered and not those of the legal representatives. See Gulli v. Sawan, AIR 1924 Lah 45 and Yeshwantrao v. Bhalchandrarao. AIR 1952 Madh Bha 207.
34. Learned counsel for the respondents for the contrary view places reliance upon Parsotam Rao v. Janki Bai, (1905) ILR 28 All 109, Mt. Dhapu v. Ramautar, AIR 1923 Nag 209 and The Kalyanmal Mills Ltd. v. Volimohammed, AIR 1965 Madh Pra 72. In the first case, a suit for partition of the family property was brought by one Ramchandra. On his death during the suit his widow Jankibai applied to have her name substituted on the record in his place. The defendants opposed the application savins that the family was joint and undivided and that upon the death of Ramchandra, the assets would vest in, the surviving members of the family. The Subordinate Judge, however, decided that Jankibai should be placed on the record as legal representative of her husband. The other subordinate Judge who succeeded him came to the conclusion 'that the order passed by his predecessor substituting Jankibai as the legal representative of her husband was a final order determining the status of the family on the death of Ramchandra and that Ramchandra was separate from other members of the family. He held that it was not open to the successor to question the decision so arrived at by his predecessor and decided that that question was res judicata. When the matter came before the High Court, it held that the appointment of a legal representative is not a determination of any issue which is properly raised in the suit and particularly a vital issue such as the 'one to which they have been referred. It will 'thus appear that the main issue in the suit itself was whether Ramchandra was separate from his brothers who were defendants in the suit or not and, therefore, that question had to be decided on merits and the order regarding substitution of his widow could be regarded as having determined that question also.
35. Similarly, in the Nagpur case. AIR 1923 Nag 209 the legal position of the legal representative who had been substituted was one of the main issues in the suit itself because the Subordinate Judge had asked the legal representative to amend the , plaint and thereupon the question of the legal representative arose and so it was held that the admission of a person as legal representative for purposes of prosecuting the suit does not conclusively establish his right to do so if his legal position is one of the main issues in the suit itself.
36. In the Madhya Pradesh case, AIR 1965 Madh Pra 72 the question was whether Miss Hamida who was in possession of the property of the deceased was the legal representative of Volimohammed or not. The lower court decided that she was. But on a revision application, the High Court held that Miss Hamida though having been brought up by the deceased was in possession of his estate, but that alone does not confer on her a right of suit in respect of the estate of the deceased. That right can only belong to a lawful heir. She was not shown to have been related to Volimohammed in anyway and it appeared that the deceased had left behind his brother also. The court therefore decided that the suit cannot be continued by Miss Hamida who cannot be considered to be a legal representative for purposes of substitution as a plaintiff. Therefore, in this case also it was the order of substitution which was set aside by the High Court in its revisional Jurisdiction.
37. All these three cases are therefore, distinguishable.
38. Learned counsel for the respondents admits that the order of substitution of Mohammad Subhan as legal representative may be all right. It may also be that it is only the right of the deceased which shall be determined in the present litigation. But he says that in a suit for partition like this, complications are bound to arise if a decree is passed in favour of a person who has no interest in the disputed property at all. That may be so if it is found that the person who had been substituted as legal representative had no interest at all in the disputed property. But I do not see how on principle cases of partition can be distinguished from other cases simply on the ground that in such cases the decree passed in favour of the legal representatives against third Parties can be taken advantage of by the legal heirs of the deceased. That being so, I am unable to agree with the learned counsel for the respondent that the question whether Mohammad Subhan under the will has any interest in the disputed property or not can be reopened now, when once he has been substituted as the legal representative of the deceased. So far as the question of Mohammad Subhan's adoption is concerned, learned counsel for the appellant has contended that adoption is customary in the community of the Parties and is secular in character. It is like appointment of an heir and the rules relating to ceremonies are not applicable. It is also contended that Section 28 of the Rajasthan Civil Courts Ordinance does not exclude consideration of custom even where the parties are Muhammadan. Reliance is placed on Muhammad Ismail Khan v. Sheomukh Rai. (1913) 18 Ind Cas 571 (PC) where the provisions of Section 37 of Act XII of 1887 were similar to the provisions of Section 28 of the Rajasthan Civil Courts Ordinance. It is further contended that the objections which are now being raised on behalf of the respondents regarding the validity of adoption were not raised during the summary enquiry. However, once an order for substitution of Mohammad Subhan as legal representative of the deceased has been made. it is not necessary for this Court to go into this question at his stage. He Is entitled to prosecute the appeal and further Proceedings in this litigation and it is only the right of Rahim Bux which shall be determined in it. Because of the order passed by this Court on 23rd November, 3970, arguments were not addressed by the parties on the merits of the case, that is, regarding the rights of Rahim Bux in the disputed property because that question will now be decided afresh when other persons who have been held to be proper parties to the suit are brought on the record as defendants.
39. The result, therefore is that this appeal is allowed, judgment and decree of the lower court is set aside and the case is sent back to the court of District Judge, Kota for taking further proceedings in the suit after making all the persons named in the application of the appellant dated 3rd November, 1969 and 4th November 1969 as defendants to the suit. All the relevant issues in the suit shall now be determined in their presence. After the addition of new defendants and as a consequence of their reply, the court may also frame additional issues if it considers it necessary. The costs of this appeal shall abide the result of the suit.