JUDGMENT
Banerji and Aikman, JJ.
1. This appeal is similar to First Appeal No. 101 of 1894, which we have decided to-day. It has arisen out of a suit brought by Sikandar Begam, the assignee of Sughra Begam, plaintiff in the suit in First Appeal No. 101. By an instrument dated the 17th of June 1893, Sughra Begam assigned to Sikandar Begam one-half of the amount of her dower, and also a half share of the property which she claimed to have inherited from her deceased husband Mumtaz Husain Khan. Sikandar Begam by virtue of her assignment claimed Rs. 4,000 on account of Sughra Begam’s dower, and an eighth share of the estate said to have been left by Mumtaz Husain Khan. Ahmad-ud-din, the appellant here, denied that Sughra Begam was married to Mumtaz Husain Khan; he raised other objections to the claim, which have been repeated in this appeal. As for the objection that Sughra Begam was not the wife of Mumtaz Husain Khan, we hold, for reasons given in our judgment in First Appeal No. 101 of 1894, that it must fail. In our opinion it has been established that Sughra Begam was married to Mumtaz Husain Khan and that the amount alleged, namely, Rs. 60,000 and twenty-five gold mohurs, was the amount of her stimulated dower.
2. Mr. Muhammad Ishaq, who has argued this case very ably, contended that there was a misjoinder of defendants and of causes of action, and that the plaint was defective by reason of such misjoinder. This contention was founded on the fact that a portion of the claim was directed against the defendants Nos. 2, 3 and 4, who had no concern with the remainder of the claim, which was advanced against the first defendant alone.
3. We have been relieved of the necessity of determining this question, by reason of the learned Counsel for the respondent applying to us to allow his client to withdraw her claim against defendants Nos. 2, 3 and 4, with liberty to bring a fresh suit for the portion of the claim so withdrawn. We have granted him permission to withdraw the claim as against those defendants, and we make an order under Section 373[1] of the Code of Civil Procedure permitting the plaintiff to withdraw the claim against the defendants Nos. 2, 3 and 4, with liberty to bring a fresh suit in respect of the portion of the claim so withdrawn, on condition that the plaintiff pay to the said defendants their costs in the Court below, proportionate to the value of the claim directed against them.
4. The next contention of Mr. Muhammad Ishaq raises a question of some difficulty. He argues that the suit offends against the provisions of Rule b of Section 44 of the Code of Civil Procedure, inasmuch as the dower of Sughra Begam was claimed as due to her in her personal capacity and the remainder of the property in suit was claimed by virtue of her right as heir to Mumtaz Husain. In support of this contention he has referred to Ashabai v. Haji Tyeb Haji Rahimtulla I.L.R. 6 Bom. 390. That case is undoubtedly in favour of his contention, but with due deference to the learned Judge who decided that case, we are unable to adopt the same view of Rule b that he did. That rule forbids the joinder of claims by or against an executor, administrator or heir, as such, with claims by or against him personally unless the personal claims have reference to the estate in respect of which he sues or is sued as executor, administrator or heir. As we understand the rules it prohibits the joinder of a claim by or against a person in his representative capacity with a claim which is advanced by or against him in his personal capacity. This is evident from the concluding words of the rule, which permit the joinder of such claims as a person “is entitled to or liable for jointly with a deceased person whom he represents.” The words italicized clearly indicate that the intention of the Legislature in enacting Rule b was to draw a distinction between the personal capacity of a plaintiff or defendant and his capacity as representing the estate of some deceased person. Rule b of Section 44 reproduces the provisions of Rule 5 of Order XVII framed under the English Judicature Act with the addition of the word “heir.” It was necessary to add that word in the Indian Act because in this country it is not an executor or administrator alone who represents the estate of a deceased person. An heir who has obtained a certificate under Act No. XXVII of 1860, to collect the debts due to a deceased person or a succession certificate under Act No. VII of 1889, is as much a representative of a deceased person for the purpose of collecting debts due to him as an executor or an administrator. It seems to us that it is in this sense that the word “heir” is used in Rule b of Section 44, and that it is the object of the rule to forbid, save under certain conditions mentioned in the rule, the joinder of claims brought by or against persons who occupy two different capacities. Beading Rule b as a whole, and having regard to the reason for the rule, it is, in our opinion, impossible to hold that it precludes a person from joining a claim for property acquired by himself, with a claim for property inherited by him from another, when he does not represent persons other than himself. Both of such claims are advanced by him in his personal capacity. It is true that in the latter case he claims as an heir, but he claims it in his own right, and not on behalf of anyone else. In our judgment the “heir” referred to in Section 44, Rule b is an heir suing or being sued in his representative capacity, who, like an executor or administrator, represents the estate of a deceased person. In this view the joinder of the claim for the dower due to Sughra Begam with the claim for the inheritance is not obnoxious to the prohibition of the rule contained in Section 44, Rule b.
5. The next objection raised by Mr. Muhammad Ishaq was that Section 135 of Act No. IV of 1882 applied to this case. He contended that there was no consideration for the assignment to Sikandar Begam, and yet he argued that Sikaudar Begam was only entitled under Section 135 to the amount of consideration actually paid by her. If there was no consideration for the transfer to Sikandar Begam it was not a sale, and consequently Section 135 would not apply. Even if there was no consideration, it was clearly an assignment of a portion of her rights by Sughra Begam to Sikandar Begam. The assignment is admitted by Sughra Begam, and it does not lie in the appellant’s mouth to dispute its validity on the ground of absence of consideration. No other plea has been pressed before us. In our judgment this appeal fails. We dismiss it with costs.
[1]Sections 373: If, at any time after the institution of the suit, the Court is satisfied on
the application of the plaintiff (a) that the suit must fail by
Power to allow plaintiff reason of some formal defeot, or (b) that there are suffloient
to withdraw with liberty grounds for permitting him to withdraw from the suit or to
to bring fresh suit. abandon part of his claim with liberty to bring a fresh suit
for the subject-matter of the suit or in respect of the part
so abandoned, the Court may grant such permission on such terms as to costs or otherwise as it
thinks fit.
If the plaintiff withdraw from the suit, or-abandon part of his olaim, without suob permission, he shall be liable for such costs as the Court may award, and shall be preoluded from bringing a fresh suit for the same matter or in respect of the same part.
Nothing in this section shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others.
