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14. Mr Desai puts his case like this: If the right to sue survives, the suit will not abate. If it does abate, and that can only be if the right to sue does not survive, then a fresh suit on the 'same cause of action' would be barred. Taher Fakhruddin's claim is, of necessity, derivative or inherited -- he has no stand-alone claim or right he can assert independent of his late father's claim. This means, as a logical inevitability, that if his father's suit is held to have abated, then no fresh suit by Taher Fakhruddin is possible; Taher Fakhruddin cannot seek that which died with his father; and without seeking that, he cannot maintain his own claim. We thus pass through the filters of O.22 Rules 1, 2 and 9 and arrive at O.22 R.10. This is not a case of assignment of any interest. It is also not, strictly speaking, a case of a 'creation' of an interest. It is a case of devolution of an interest, and that devolution is traced in this suit back to the 52nd Dai. His interest in any estate of the Dawoodi Bohra community was one he held qua the Dai, in that capacity and no other. Khuzemabhai claimed to have succeeded to that interest by virtue of no other 'right' other than that which attached to his appointment or nomination as the successor (53rd) Dai by the 52nd Dai. Again, there was no personal interest involved in the sense of there being an interest that inhered in Khuzemabhai as an individual de hors his appointment as the 53rd Dai. Taher Fakhruddin's claim is drawn from his father's. Syedna Mohammad Burhanuddin's 'interest' qua the undisputed 52nd Dai is the wellspring of all rights, privileges and entitlements. Thus, Taher Fakhruddin's claim is one under a process of devolution (as was his father's), and the suit must 7th March 2017 Dawoodi Bohra Dai Al-Mutlaq Succession Case 1-CHS1290-16.DOC be allowed to continue, in either view of the matter, viz., that the right to sue survived Khuzemabhai within the meaning of O. 22 Rule 1, or on account of devolution under O.22 Rule 10.

Order 22 Rule 10 is not confined to devolution of interest of a party by death; it also applies if the head of the mutt or manager of the temple resigns his office or is removed from office. In such a case the successor to the head of the mutt or to the manager of the temple may be substituted as a party under this rule. The word "interest" which is mentioned in this rule means interest in the property i.e. the subject-matter of the suit and the interest is the interest of the person who was the party to the suit.

9. It was, however, contended on behalf of the respondent that there was no devolution of the interest in the subject-matter of the suit on the death of Som Dass, since there was no certainty as to the person who would be elected as mahant to succeed him. The argument was that it 7th March 2017 Dawoodi Bohra Dai Al-Mutlaq Succession Case 1-CHS1290-16.DOC was uncertain on the death of Som Dass as to who would become the mahant by election, that it was only when a person succeeded to the mahantship on the death of a previous mahant by virtue of law or custom that there would be devolution of interest in the subject-matter of the suit and, therefore, Order 22 Rule 10, would not be attracted. We see no force in this argument. We are of the view that devolution of the interest in the subject-matter of the suit took place when Shiam Dass was elected as mahant of the Dera after the death of Som Dass.

10. Som Dass was sued in his capacity as a person who claimed (though illegally according to the appellant) as mahant of the Dera. Som Dass contended that he was lawfully appointed as mahant of the Dera. He never set up any claim which was adverse to the Dera or its properties. The suit against Som Dass was not in his personal capacity but in his capacity as de facto mahant. In other words, the suit was for possession and management of the Dera and the properties appertaining to it by the appellant purporting to be the de jure mahant against Som Dass as de facto mahant. The fact that it was after Som Dass died that Shiam Dass was elected to be the mahant of the Dera can make no difference when we are dealing with the question whether the interest in the subject-matter of the suit devolved upon him. The subject-matter of the suit was the interest of Som Dass in the Dera and its properties and it devolved upon Shiam Dass by virtue of his election as mahant subsequent to the death of Som Dass. And, as it was in a representative capacity that Som Dass was sued and as it was in the same representative capacity that the appeal was sought to be continued against Shiam Dass, Order 22 Rule 10 will apply. [See Ratnam Pillai v Nataraja Desikar, AIR 1924 Mad 615 (1) : 84 IC 200] In Thirumalai v. Arunachella [AIR 1926 Mad 540 : 92 IC 520] the Court held that a succeeding trustee of a trustee who filed a suit and 7th March 2017 Dawoodi Bohra Dai Al-Mutlaq Succession Case 1-CHS1290-16.DOC thereafter died during its pendency was not a legal representative of the predecessor in office. The Court said that where some of the trustees die or retire during the pendency of a suit and new persons are elected to fill their place, it is a case of devolution of interest during the pendency of a suit and the elected persons can be added as parties under Order 22 Rule 10 notwithstanding that the period of limitation for impleading them had expired.