1. We think the Subordinate Judge was quite wrong it dismissing this suit for the reasons given by him. He dismissed the suit for two reasons, viz., first, because the second defendant Ramabai was not made a party to the suit until more than sixty days after the death of her husband. Sitaram, as required by Article 171 B of Schedule II of Act XV of 1877; and, secondly, because the sixth defendant Balkrishna, who is a brother of the plaintiff, possesses property which is liable to partition, and which is not included in the plaint.
2. Now, as to the first of these reasons, we think the limitation law has no bearing on the case. Article 171B applies to applications made under Section 368 of the Code of Civil Procedure,–that is, after a suit has been instituted. A suit is instituted by presenting a plaint (Section 48). An application to sue in forma pauperis is deemed the plaint in the suit after the Court has granted the application under Section 410. What happened is this case was this. On the 13th February, 1880, plaintiff applied for leave to sue in forma pauperis. On the 28th February, 1880, the Court, ordered notice to issue to the defendants of the application. In March, 1880, the second defendant Sitaram died. Neither Article 171B of the Limitation Act, nor any other provision of law, applying to an enquiry into a claim to sue in forma pauperis, plaintiff was not bound to apply within any particular time for the substitution of the name of Sitaram’s heir in place of Sitaram. As a matter of fact, plaintiff applied on the 3rd July, 1880, to have the name of Ramabai substituted for that of her deceased husband Sitaram as his heir, and the Court made an order accordingly the same day. The application to sue in forma pauperis was not disposed of till 20th November, 1880. On that day it was granted, and the application became the plaint in the suit,–Ramabai being at that time a defendant on the record.
3. It might be sufficient to say this much as a reason for reversing the subordinate Court’s order dismissing this suit. But it seems, from the frame of the suit, that it really was not necessary to make any application for the substitution of Ramabai’s name for that of her husband Sitaram; and, therefore, even if Sitaram had died after the institution of the suit, it would not have been necessary for the plaintiff to make any application under Section 368 of the Code of Civil Procedure This is a partition suit in which plaintiff claims his share of the undivided property of his family from seven defendants, of whom the original defendants 1 to 5 were own brothers, defendant No. 6 is plaintiff’s own brother, and defendant No. 7 is a cousin of the others. In an undivided Hindu family a man’s brother would be his heir (if he left no son), and not his widow. Therefore, when defendant No. 2 Sitaram died, defendants 1, 3, 4 and 5 became his heirs, and it was a mistake to call his widow Ramabai his heir, and to apply to have her made a defendant in the case, as such.
4. As to the sixth defendant having property liable to division, but not included in that mentioned in the plaint, this fact (if fact it be) affords no ground for dismissing the plaintiff’s suit as the sixth defendant is a party to the suit, the Court in disposing of the case will be competent to make any order in respect of property in his possession that appear right.
5. We must reverse the order of the subordinate Court, and remand the case for trial on trial on merits. Costs to follow the final result.