JUDGMENT 1. The Plaintiff in the suit out of which this Appeal arises is the Maharaja of Darbhanga. The facts, which are not disputed, are that the grandfather of the Plaintiff granted certain properties, mentioned in the schedule, to his youngest son, Nitreshwar Singh, in accordance with a family custom by which portions of the estate, which is impartible, are given to junior members of the family for maintenance, subject to the condition that the grantees should regularly pay the Government revenue and cesses due from these portions of the estate, to the Raj treasury. These grants are well known as babuana grants. Nitreshwar Singh died leaving two sons, Ekradeswar who is the second Defendant and Janeswar, whose widow is the first Defendant. These two sons succeeded jointly to the babuana property but subsequently separated, each taking half of the property. 2. Ekradeswar and Janeswar having made default in payment of revenue and cesses, a suit was instituted in 1898 by the then Maharaja, the elder brother of the Plaintiff, to recover the arrears due, which were for a period of nearly three years. 3. The Plaintiff succeeded to the Raj during the pendency of that suit and in April 1899 a compromise was effected between him and the two brothers. By the compromise the shares of the two brothers in the babuana property were defined and declared to be equal, and a separate account of their liabilities was opened, but it was also agreed that if in future either of the two brothers made default the Raj would be entitled, though not bound, to make the co-sharer of the defaulter a co-Defendant in any suit which it might be necessary to bring subject to this condition that in execution of the decree obtained in such suit the Raj would be entitled to put up for sale in the first instance only the share of the defaulter, but that if the proceeds of the sale of that share were insufficient to satisfy the decree, the share of the co-sharer might be brought to sale for the balance. 4. Subsequently in 1905 the Plaintiff brought a suit against Janeswar to recover Rs. 18,738-15.6 on account of arrears of revenue and cesses due for Janeswar's moiety share. 5. In accordance with the terms of the compromise entered into in 1899, Ekradeswar was also made a Defendant in that suit. 4. Subsequently in 1905 the Plaintiff brought a suit against Janeswar to recover Rs. 18,738-15.6 on account of arrears of revenue and cesses due for Janeswar's moiety share. 5. In accordance with the terms of the compromise entered into in 1899, Ekradeswar was also made a Defendant in that suit. During the pendency of that suit Janeswar died and a dispute arose between Ekradeswar and the widow of Janeswar as to the title to succession to the estate of Janeswar. The dispute culminated in a suit brought by Ekradeswar against the widow for possession of the estate. Ekradeswar succeeded in the first Court, but on appeal to this Court it was held that the widow was the successor and legal representative of the deceased and the suit was dismissed. An appeal is now pending before the Privy Council. 6. The suit instituted by the Plaintiff in 1905 against Janeswar had meanwhile proceeded, Ekradeswar having been substituted in place of the deceased Janeswar. Finally the principal claim was admitted by Ekradeswar though the interest claimed was disputed. On the 27th July 1906 the Court decreed the full amount claimed. 7. The substitution of Ekradeswar in place of the deceased Janeswar had not been effected without protest from the widow. The Plaintiff reported the death of Janeswar and applied for the substitution of Ekradeswar on the 21st May and the order for substitution was made the same day. On the 19th June the widow applied to the Court to be substituted in place of Janeswar. On the 25th June the application was heard and as no objection was offered by Plaintiff's pleader an order was made substituting the widow for Janeswar, though there was no order cancelling the previous order for substitution. 8. On the 20th July two petitions were put in by the Plaintiff's pleader, one on his own behalf and one on behalf of the Plaintiff. 8. On the 20th July two petitions were put in by the Plaintiff's pleader, one on his own behalf and one on behalf of the Plaintiff. The first, after referring to the application to substitute Ekradeswar for Janeswar and the order passed thereon, stated that when the petition of the widow to be substituted had been presented the Court had enquired from him if he had any objection to her being made a party and he had in exercise of his own discretion stated that he had no objection to her being made a party and the case being proceeded with in presence of both patties, but he never meant to admit that she was the legal representative of Janeswar or should be recorded as such. 9. The other petition was to the same effect though it contains an allegation which is absent from the pleader's petition, viz, that when the Court enquired from the pleader if he had any objection to the widow being made a party, he said he had not, if she wished to be added, though he submitted that Ekradeswar was the legal representative of deceased. The petition went on to say that Ekradeswar alone ought to be a party as representative of the deceased and that the widow had no right to be substituted for Janeswar or even to be added as a party to the suit, and there was a prayer that the order adding her as a party should be revoked and the case tried in the presence of Ekradeswar alone. On both these petitions the widow's pleader noted his objection. 10. I may pause here for a moment to remark that these petitions do not bear the stamp of bond fides. On both these petitions the widow's pleader noted his objection. 10. I may pause here for a moment to remark that these petitions do not bear the stamp of bond fides. The petition of the widow asking to be substituted was ordered to be heard on the date fixed for hearing the suit--it was put up on that date--the Court asked the pleader if he had any objection to offer: the pleader according to his own petition understood the enquiry of the Court to be whether he objected to her being added as a party and he said he had not according to the petition filed by him on behalf of the Raj, he urged also that Ekradeswar was the legal representative, yet in spite of his submission the Court did not merely add her as a party, but made an order for substitution in her favour and recorded that the Plaintiff's pleader had no objection to this course. It is difficult to imagine that the Court, understanding as it did that the widow's application was one for substitution, should in the face of the pleader's argument that Ekradeswar was the legal representative, have recorded that the pleader did not object to an order for substitution, if the pleader was merely not opposing her being added as a party. 11. When the petition of the Plaintiff was put up for hearing the widow's pleader opposed it. However, as is evident from the order of the 20th July, it was stated on behalf of the Plaintiff that he did not want a decree against her, and the result was that the Subordinate Judge struck her off the record, considering it inadvisable that she should remain on it against the wishes of the Plaintiff, and remarking that she would not be bound by any decree that might be passed and her interests would not suffer. Finally, as already remarked, the suit was decreed with this significant passage in the ordering portion of the judgment--the decree, I may remark, has not been exhibited in the case, but presumably is in accordance with the judgment--"this order will not enable the Plaintiff to make any portion of the estate of Janeswar in the hands of any person, other than the Defendant, liable for the decree." 12. When the widow was successful in the suit "brought against her by Ekradeswar the Plaintiff who had supported Ekradeswar in that suit was in this difficulty that he could not under the terms of the compromise proceed against Ekradeswar's share in the maintenance tenure, until Janeswar's share had been sold, and he could not proceed against Janeswar's share which was not in the hands of the widow on the decree against Ekradeswar. 13. The result was the present suit, in which the Plaintiff asks (1) for a declaration that Janeswar made default to the extent of Rs. 18,738-15-9, (2) that the Court should hold that the widow being in possession of the estate under the High Court decree is liable to pay the arrears covered by the decree in the suit of 1905, (3) a decree for the amount with interest from the date of the previous decree, (4) for a declaration that the arrears are a charge on Janeswar's share of the maintenance tenure. There are also the usual prayers for costs and other reliefs. 14. It is alleged in the plaint that on Janeswar's death Ekradeswar attempted to get possession of the estate and succeeded to a great extent, and that some time afterwards the widow succeeded in getting possession. The allegation that Ekradeswar succeeded in getting possession to a great extent is traversed in the written statement of the widow and the only evidence that there is on this point in the very short examination of the three witnesses who were called in the case is in her favour. 15. It is also alleged in the plaint that the reason why the widow was not brought on the record as representative of Janeswar in the suit of 1905 was misconception on the part of the Plaintiff's agent. This misconception, it is argued, was a reasonable one in view of an alleged family custom that maintenance tenures never devolved on females, a custom which the Plaintiff tried to support in Ekradeswar's suit against the widow. This misconception, it is argued, was a reasonable one in view of an alleged family custom that maintenance tenures never devolved on females, a custom which the Plaintiff tried to support in Ekradeswar's suit against the widow. Now whatever may be the truth as to the existence of the alleged family custom, it is quite clear that the Plaintiff was put on notice of the widow's claim by her petition of the 16th June 1906, a petition in which it was definitely asserted that Ekradeswar had made an attempt in the Court of the District Judge to get possession of the estate and had failed. 16. The learned Subordinate Judge dismissed the suit on two grounds (1) that in the previous suit the Plaintiff was satisfied with a decree against the assets in the hands of Ekradeswar and deliberately refrained from seeking a decree against the assets in the hands of the widow, and consequently the suit was barred by the provisions of sec. 43, C. C. P., (2) that the suit was barred by limitation. 17. It is now argued that sec. 43 has no application, for the Plaintiff was not splitting up his claim but that on the contrary he claimed the whole amount due from the estate of Janeswar. I am of opinion that this contention is sound and that sec. 43 has no application to the circumstances of the case. 18. It is next argued that the suit is not hatred by limitation, for it is in fact a suit on a judgment, the period of limitation for which is 12 years. To support this contention it is argued that the decree in the previous suit binds the estate, though in fact the wrong person may have been substituted in place of Janeswar in that suit, and reliance is placed on the cases of Ramaswami Chettiar v. Oppilamani Chetti I. L. R. 33 Mad. 6 (1909), Kadir Mohideen Marakkayar v. Muthu Krishna Ayyar I. L. R. 26 Mad. 230 (1902), and Prosunna Chunder Bhattacharjee v. Kristo Chytunno Pal I. L. R. 4 Cal. 342 (1878). 19. I am of opinion that none of these cases support the contention of the Appellant. 6 (1909), Kadir Mohideen Marakkayar v. Muthu Krishna Ayyar I. L. R. 26 Mad. 230 (1902), and Prosunna Chunder Bhattacharjee v. Kristo Chytunno Pal I. L. R. 4 Cal. 342 (1878). 19. I am of opinion that none of these cases support the contention of the Appellant. In the case of Ramaswami Chettiar v. Oppilamani Chetti I. L. R. 33 Mad 6 (1909), the person who was brought in to represent the estate of the deceased was his natural father, who was in fact in possession of the estate and who claimed under a Will which at the time had after contest been held to be genuine, though subsequently the Will was found not to be genuine. In the case of Kadir Mohideen Marakkayyar v. Muthu Krishan Ayyar I. L. R. 26 Mad. 230 (1902), the person who was brought on the record to represent the deceased was one of three sons and three daughters of the deceased. He raised no objection that he was not the sole representative of the deceased, and the other heirs, whose interests were identical with his, did not apply to be brought on the record. The learned Judges remark "it will of course be open to any other person who is or claims to be the legal representative or one of the legal representatives of the deceased to apply to have his name also entered in the record as a legal representative in place of the deceased Defendant. . . . If the true legal representative or all the legal representatives do not intervene, it can be due only to his or their laches." In the case of Prosunna Chunder Bhattacharjee v. Kristo Chytunno Pal I. L. R. 4 Cal. 342 (1878), deceased had been living with one Bibhuti as his wife. After his death, no relatives appeared and she continued to live in deceased's house and was in possession of his property. A creditor of deceased got a decree against Bibhuti as representing him. When he tried to execute it he found Prasanna, a distant relative of deceased, in possession claiming, not as an heir, but under a Will, of which he had obtained probate after the creditor had got his decree. It was found that the creditor had brought his suit in good faith believing Bibhuti to be the representative of the deceased. When he tried to execute it he found Prasanna, a distant relative of deceased, in possession claiming, not as an heir, but under a Will, of which he had obtained probate after the creditor had got his decree. It was found that the creditor had brought his suit in good faith believing Bibhuti to be the representative of the deceased. It was held, though with soma hesitation, that the party who took possession of the estate of the deceased should be treated for some purposes as his representative, and that the judgment obtained against such a representative was not a mere nullity and was sufficient to enable the creditor to sue the executor to have the decree satisfied. 20. The essential features of these cases are wanting in the present case. The interests of Ekradeswar and the widow were not identical, the widow and not Ekradeswar was in possession, the widow appeared and claimed to represent the estate, but not only was she finally not even made a party but was removed from the record on which she had been placed, on the application of the Plaintiff, on the express understanding that she would not be bound by the decree and that her interests would in no way suffer. 21. An attempt has been made to throw the blame for the substitution of Ekradeswar in place of Janeswar on the Court, it being argued that the Court ought to have decided who was the proper person to represent Janeswar, and that the application to substitute Ekradeswar was bond fide. Now, not only have I grave doubts as to the bond fides of the application to substitute Ekradeswar, especially in face of the opposition of the widow, but it is clear that sec. 368 of Act XIV of 1882 does not lay on the Court the duty which the Appellant seeks to impose upon it. On the contrary, it is for the Plaintiff to choose against whom he proposes to proceed and if some one else with an adverse claim to the nominee wishes to be made the representative he should be added as a party. The provisions of sec. 367 apply only in the case of the death of the Plaintiff and have no application to the case of the death of a Defendant. The reason for the different treatment of the two cases is obvious. 22. The provisions of sec. 367 apply only in the case of the death of the Plaintiff and have no application to the case of the death of a Defendant. The reason for the different treatment of the two cases is obvious. 22. Now not only is it clear that in the circumstances the decree cannot be held to bind the widow but it is perfectly clear that if a suit could be brought on the judgment it would be wholly infructuous as against her when that very judgment expressly decided that the decretal amount could be realised by the sale of the estate in the hands of Ekradeswar alone and that no portion of the estate in the hands of any other person was to be made liable. 23. It is next contended that the arrears are a charge upon the estate in whosoever's hands the asssets may happen to be, and as such the period of limitation is 12 years. The widow, it may be here noted, admits that the arrears were in fact due. It is argued that as from the nature of the agreement the maintenance holder is only to take the profits of the estate provided that he pays the Government revenue to the Maharaja, the payment of the Government revenue should be considered a charge upon the estate. To support this proposition reference is made to the case of Durgadut Singh v. Rameshwar Singh 13 C. W. N. 1013 : s. c. I. L. R. 36 Cal. 943 ; L. R. 36 I. A. 176 at p. 183 (1909) in which their Lordships of the Privy council remarked "it never could be permitted that the subject of the grant could be enjoyed and the condition upon which it was made disregarded." But their Lordships were merely dealing with the question whether a maintenance estate was inalienable or not ; and in the very sentence from which the above passage is quoted they remark that the Maharaja may sue for the amount of Government revenue paid by him and recover it by sale of the interest granted for maintenance. No authority has been shown to us to support the view that such a payment creates a charge. To support the opposite view, Respondents pleader relies on the Full Bench decision of Kinu Ram Das v. Mazaffer Hussain Shaha I. L. R. 14 Cal. 809 (1887). No authority has been shown to us to support the view that such a payment creates a charge. To support the opposite view, Respondents pleader relies on the Full Bench decision of Kinu Ram Das v. Mazaffer Hussain Shaha I. L. R. 14 Cal. 809 (1887). That case is distinguished on the ground that it was a suit brought by a co-sharer in a revenue-paying estate, who had paid the whole revenue due to save the estate from sale and that the real remedy of a co-sharer in such a case is by a suit for contribution, a remedy which would not be available in the present case. 24. In that case Wilson, J., pointed out that there was no general rule of equity to the effect that any person having an interest in an estate, who makes a payment to save the estate, obtains a charge on the estate. No doubt the Maharaja has an interest in the maintenance estate in this sense that it is never separated from the zamindari, Gunesh Dutt Singh v. Moheshur Singh 6 M. I. A. 164 at p. 197 (1855), and that on the failure of heirs the estate would revert to the Raj ; but there is this difference between Kinu Ram's case I. L. R. 14 Cal. 809 (1887) and one like the present, that in the former case there is no contract between the parties, whereas in the present there is, and in the former case the charge claimed was based on the theory that the payment saved the estate, whereas in the present case the claim of a charge is not based on the ground that the Maharaja had made a payment to save the estate, for he would have to pay the whole Government revenue due from the Raj in any event, but on the ground that Janeswar failed to carry out his contract to make certain payments to the Raj treasury. I am of opinion that that case has no bearing on the present question. 25. In reply it was attempted by the Appellant's pleader to support the theory of a charge on the analogy of the Bengal Tenancy Act, which provides that rent shall be a first charge on a tenure or holding, though the learned pleader expressly repudiated the applicability of that Act in the present case. 25. In reply it was attempted by the Appellant's pleader to support the theory of a charge on the analogy of the Bengal Tenancy Act, which provides that rent shall be a first charge on a tenure or holding, though the learned pleader expressly repudiated the applicability of that Act in the present case. It is obvious that an analogy cannot be drawn from the provisions of a Statute intended to meat a particular case. 26. A charge can be created only by operation of law or act of parties. In the present case there is no question of the first method. If a charge was created it must have been by the second method. The Subordinate Judge has disposed of the question by saying there is no evidence of a charge. All that we have is what is contained in the plaint, the first 12 paragraphs of which the Defendant admits to be correct. From that all that we know of the terms of the grant is contained in the statements that the grant was one for maintenance and that the grantee was to pay the Government revenue and cesses to the Raj treasury. Such conditions do not in my opinion suffice to create a charge. 27. But it was urged by the learned pleader who replied on behalf of the Appellant,--and I may note that this suggestion was not made by Dr. Rash Behary Ghose in opening the appeal,--that para. 10 of the plaint modified the original contract and created a charge. If that argument be correct then the theory of an original charge cannot be invoked to support the suit. 28. In my opinion the agreement which is recited in para. 10 of the plaint did not create a charge. What appears from the plaint to have happened was this. The grant was to the father of Ekradeswar and Janeswar and on his death the brothers divided the property. The Maharaja would apparently only recognise the partition on conditions one of which was that if the sale-proceeds of the share of one co-sharer was insufficient to satisfy a decree in case of default, the share of the other was to be liable to sale. The provision was really in favour of the brother, as it restricted the liability to sale in the first instance to the share in default. The provision was really in favour of the brother, as it restricted the liability to sale in the first instance to the share in default. If no charge existed before, I do not think this compromise created one; if it created one at all it only created it on the share of one co-sharer, in respect of default by the other co-sharer. I would therefore dismiss the Appeal with costs. Newbould, J. I agree.