1. First Appeal No. 145 of 1971 has been filed by defendant No. 3, First Appeal No. 9 of 1972 has been filed by defendant No. 1 (c) and her natural son defendant No. 5 and First Appeal No. 15 of 1972 has been filed by defendants Nos. 1 (a), 2 and 6. The relationship of the parties is to be found from the genealogy given below :--
D. 1 |
(Died during Khalli
the pendency (Died in 1942)
of the suit = Urmila-
__________________________________ (died on 20-4-69)
| | |
Ramanath Radhakrishan Mahalakshmi
Padhi Padhi D. 1 (c)
D. 2 D. 3 Married to
Nirakar Padhi, a man of a substantial property, left behind two sons --Yudhisthir (original defendant No. 1) and Srinibas. Yudhisthir died during the pendency of the suit leaving behind two sons and a daughter being Ramanath (defendant No. 2), Radhakrishna (defendant No. 31 and Mahalakshmi (defendant No. 1 (c)). Ramanath's wife Kanchan is defendant No. 6. Mahalakshmi is married to Jagannath and their son Kishore Pandhi is defendant No. 5. Srinibas died leaving behind Khalli who met with a premature death in 1942 leaving behind a young widow Urmila. Urmila filed the suit on 25-1-1969 impleading defendants 1 to 3 and asked for the following reliefs :--
(i) Confirmation of partition of Schedule-A properties as evidenced by the deed of partition dated 22-6-1968 (Ext. 1) between defendant No. 1 and herself;
(ii) Alternatively, for partition of Schedule-A properties into two halves and for allotment of one lot maintaining the division in the deed of partition as far as practicable;
(iii) Decree for permanent injunction against defendants 1 to 3 from interfering with her possession in respect of the B Schedule property which had been allotted to her at the partition under Ext. 1; and
(iv) Directing defendants 1 to 3 to deliver 15 cart-loads of paddy or its price towards mesne profits of B schedule property.
She averred in the plaint that her husband died in joint status with defendant No. 1 in the year 1942 and she continued to jointly enjoy the properties with defendants 1 to 3 till the partition. She further alleged that after partition she was in exclusive possession of her share.
She had executed a deed of settlement in favour of her sister (defendant No. 4) on 31-10-1968 vide Ext. 3. One day prior to the institution of the suit, i. e. on 24-1-1969, she had executed a Will (Ext. 4) in favour of Bhajakrishna Panda son of her brother, in respect of her remaining assets. Yet, in paragraph-1 of the plaint, she categorically pleaded: -
'............The plaintiff as aforesaid isin peaceful possession of the B schedule properties in her own right.........'
and she also asked for confirmation of possession and injunction. In paragraph 4 of the plaint, she specifically pleaded that
'The cause of action for this suit arose on 25-12-1968 when the defendants 1 to 3 showed a careless attitude and blocked the paddy............'
The averment in paragraph 4 clearly meant that notwithstanding the Settlement, Urmila was in khas possession and enjoyment of the property.
Kishore Chandra Padhi claimed to be the adopted son of Khalli and was added as defendant No. 5. When Urmila died, an application was made by Bhajakrishna on the basis of the Will to be added as a legal representative. Ambalika on the basis of the Settlement claimed to be transposed as plaintiff. The learned Subordinate Judge allowed this prayer. The plaint, however, remained in its original form so far as the pleadings are concerned and there was no amendment.
2. Defendant No. 1 died during the pendency of the suit and his daughter Mahalakshmi is substituted along with his two sons Ramanath and Radhakrishna who had already been impleaded as defendants 2 and 3. On the allegation that Ramanath had become insane, his wife Kanchan is permitted to represent his interest. Legal representatives of the defendant No. 1 contended that the family of Srinibas and Yudhisthir continued to be joint till there was a partition on 22-6-1968 and the deed was formally registered on 27-6-1968. Urmila has been assigned six annas interest and the rest ten annas share went to Yudhisthir. Urmila suffered from cancer for some time and ultimately died at Cuttack on the 20th of Apr, 1969 while she was suffering from cancer and was not in a fit state of mind or body and had no opportunity for obtaining in-dependent advice, defendant No. 4, her sister; along with her husband obtained a deed of settlement from her. Similarly, her brother Dwarikanath took away the remaining property by means of a Will in the name of his son. These documents were not binding against defendant No. 5, the adopted son of Urmila. Defendant No. 6 filed a separate written statement and when defendant No. 2 became insane, the stand taken by defendant No. 6 became also the stand of the second defendant. They contended that Yudhisthir had settled some properties in the name of defendant No. 8. After partition of 1968 while Yudhisthir and his sons were in joint enjoyment of their ten annas share, a fresh partition was made among themselves by way of a family , arrangement. After this arrangement, Yudhisthir settled his share of property in favour of defendant No. 6 on 2-7-69 and thereafter he died. Defendants 2 and 6. therefore, are entitled to two-thirds share out of the ten -annas interest and defendant No. 3 becomes entitled to the remainder out of Yudhisthir's share. They have supported the plea of adoption of defendant No. 5 by Urmila.
The third defendant did not accept the stand of any of the parties and contended that there was no partition in1968 and the further plea of partition of1969 is, therefore, without basis. Defendant No. 2 was on the look out for grabbing a major portion of the property and, therefore, created these documents with the help of husband of defendant No. 3. Bulk of the properties constituted estates and after abolition they have been settled in favour of defendants 1 to 3 in 1954. There had actually been a partition in 1952 and on the basis of that partition, the Settlement subsequent to abolition was made. Since there had been a previous partition, there was' no scope for a fresh partition through court. The claims laid under the Settlement and the Will have also been challenged.
3. The trial court framed as many as 18 issues. It found that the plea of the third defendant that there had been a previous partition in 1952 was not established. There was a partition in 1968 and that has been acted upon. The claim of adoption of the 5th defendant was not accepted. The deed of settlement (Ext 31 and the Will (Ext. 41 were valid. Ac-cordingly, the trial court declared the rights of the plaintiffs over the disputed properties and restrained the defendants from interfering with such possession. The claim for mesne profits was, however, negatived.
4. Three appeals have been preferred against the judgment of the trial court. First Appeal No. 145 of 1971 is by the third defendant. First Appeal No. 9 of 1972 is by the defendant No. 1 (c) and her natural son (defendant No. 5) and First Appeal No. 15 of 1972 has been filed by defendants 1 (a), 2 and 6. All the three appeals have been heard together as common questions of fact and law are involved and this common judgment disposes of all the three appeals.
5. A preliminary question has been raised by the appellants that the suit as it stands is not maintainable and plaintiffs 1 and 2 who have been substituted in place of Urmila after her death during the pendency of the suit cannot proceed on with the suit and they are also not entitled to the reliefs which were claimed by Urmila. They are not members of the family and are strangers. They cannot prosecute the suit as if original plaintiff is not dead. Relying on a number of decisions, it has been held in Mahindra Singh v. Chander Singh, AIR 1957 Pat 79, as follows :--
'The principle is well established that the substituted party can only prosecute the cause of action as originally framed in the suit, and, if it becomes necessary materially to alter the pleadings, it becomes manifest that the original cause of action is being substituted for another cause of action, which could very well form the subject-matter of a separate suit. In such a case, therefore, it is a new suit, which has to be tried. The legal representative of a deceased plaintiff in such a case is confined to the pleadings and case of the plaintiff, whose representative he is, and cannot agitate in that suit his own claims against the other plaintiffs in the case though he may do so in any other proceedings.
The general rule is that all rights of action and all demands whatsoever existing in favour of or against a person at the time of his death survive to and against his representative, but right intimately connected with the individuality of the deceased will not survive.
One aspect of this exception is expressed by the maxim 'actio personalia moritur cum persona', that is, 'a personal right of action dies with the person', as just mentioned. In cases of personal actions, that is, any actions where the relief sought is personal to the deceased, the 'right to sue' will not survive to his representative.
A Division Bench of the Patna High Court, has also held in Dukh Haran Tewary v. Dulhin Bihasa Kuer, AIR 1963 Pat 390, that an order for substitution of the legal representatives of a deceased party does not confer heirship and does not also pervade beyond that litigation.
In Om Prakash v. Union of India, AIR 1978 Punj & Har 272, it has been held that if the relief claimed by the original plaintiff is personal, then the suit may abate and the right stands terminated after death of the original plaintiff. This was a case in which arrears and monetary benefits were claimed and it was held that the right did not survive to the legal representatives.
In Kanwar Singh v. Om Kant AIR 1978 J & K 22, the question of ejectment and recovery of possession was considered and it was held that the ground of ejectment was personal to the landlord and it perished with the death of the landlord.
In Vanamamalai Thevar v. Narayana Pillai, (1968) 2 Mad LJ 622, the plaintiff claimed that the suit properties were settled under a deed on herself and her husband for their lifetime to be enjoyed jointly and she sued the alienee defendants for recovery of possession, impleading in the suit, her son also. The trial court dismissed the suit. An appeal was filed, but the plaintiff died pending the appeal. In the appeal, her son who was the second respondent was transposed as the appellant as the legal representative of the plaintiff. His legitimacy was questioned in the suit, but the issue was left open by all the parties, but no objection was raised to his being impleaded as the legal representative of the deceased plaintiff-appellant. The appellate Court allowed the appeal and granted a decree for possession and directed the ascertainment of mesne profits separately. The alienees appealed against that decision and the Madras High Court held that as the cause ofaction does not survive to the heir of the deceased plaintiff, the relief of possession cannot 'be maintained by the legal representative. The substantial relief claimed in the suit is assertion of the title to possession only, till death With the death it is extinguished and does not survive to her legal representative. The claim for future profits made in the plaint is not on any independent cause of action. Where the action cannot be maintained for possession it could not foe continued as a claim for future mesne profits. The remedy of the legal representative as the remainderman under the deed of settlement is to sue on his title and, as such, he cannot prosecute the suit.
Also in Dareppa v. Mallappa, AIR 1947 Bom 307, it has been held that if a legal representative wants to raise any new point, he must get himself impleaded in his personal capacity, or he must challenge the decree in a separate suit. Reliance has also been placed for this proposition on a Full Bench decision of the Allahabad High Court in Bam Ugrah Ojha v. Ganesh Singh, AIR 1940 All 99, as well as other decisions of the Madras and Lahore High Courts.
6. In the plaint filed by Urmila, it is stated in para-1:
' ..........The plaintiff as aforesaid isin peaceful possession of the 'B' schedule properties in her own right. The plaintiff is thus in possession of a portion of the family properties, and she resides in the Krupasindhupur house and her belongings are there in ,it'
In para-3 she states about the deed of settlement (Ext. 3) in favour of defendant No. 4, now plaintiff No. 2. She does not state in categorical terms that she has delivered possession of that property to Ambalika. In prayer (b) she has asked for permanent injunction restraining defendants 1 to 3 from in any way interfering with the peaceful possession of the 'B' schedule properties by the plaintiff and she has also claimed in prayer (c) for mesne profits from -defendants 1 to 3 which had been unlawfully blocked by those defendants and that the payment should be made to her. Also in prayer (a) there is prayer for allotment of 'B' schedule properties to Urmila. Thus, it would appear that the contention of Urmila in the plaint was that she was in possession of the properties, especially schedule 'B' properties.
and she prayed for injunction against defendants 1 to- 3 for restraining them from, interfering with her possession in respect of the said properties. Ambalika (plaintiff No. 2) is a settlee. If Ambalika now claims possession by virtue of the deed of settlement, then it would be contrary to the claim of Urmila made in the plaint and would go against the interest claimed by Urmila. Plaintiff No. 1 claims on the strength of a Will. Of course, probate of a Win is not necessary in the district to which the properties belong. But for claim of title on the strength of Will, all the requirements or the genuineness of the With are to be gone into. Bat from the nature of the suit set up by Urmila which is being continued by both, the plaintiffs, these questions cannot be gone into. Therefore, title to be set up by both the plaintiffs relates to the deeds, of assign merit and testamentary document in favour of the respective plaintiffs. They have to claim title and either for confirmation of possession or for recovery of possession. This cannot be the prayer of Unmila. The claims of both the plain-tiffs are based on their own individual rights but not as representatives of Urmila to continue the suit for the reliefs claimed in the suit
7. The trial. Court has not at all gone into this question even though issues were framed. This being a vital question, and when the suit is not maintainable at the instance of both the plaintiffs, decision on other points would amount to one without jurisdiction. It is contended: on behalf of the plaintiffs that once they are substituted, they can continue the suit. Our attention was drawn to the relevant orders passed at the time of substitution. It has been clearly stated in the order itself that the substitution was for the procedural purpose only. We have already described above that substitution means that the legal representatives substituted are to prosecute the suit as if the original plaintiff is prosecuting, but once they have to take their stand on the basis of their own title derived by documents, the suit stands on a different footing. The right of partition or the right as prayed for was personal to the original plaintiff, namely, Urmila and the present plaintiffs not being, the natural heirs cannot continue the suit for partition, unless they establish their right by devolutionunder Settlement arid Will. So also the right for confirmation of the partition, of in the alternate for partition in favour of Urmila, was a personal one and in view of the decisions quoted above, the prayer abated after death of Urmila. The original plaintiff claimed possession in herself and this shows that the present plaintiffs are not in possession of the properties. As such, they are not entitled to the prayer for injunction as prayed for by Urmila.
8. In this case, the causes of action of both the plaintiffs who have been transposed and substituted are entirelv different. The transposed plaintiff claims her right under a deed of settlement prior to the institution of the suit. The substituted plaintiff (plaintiff No. 1) claims right under a Will. Both of them cannot file one suit because in that case it will amount to misjoinder of causes of action and both of them could not have continued one suit. The cause of action for the deed of settlement is different from that of the Will. The suit originally filed was one for partition or confirmation of partition and the suit properties are the joint family properties belonging to the family of Nirakar Padhi -- the common ancestor of the defendants and the original plaintiff Urmila. In the decree portion of the judgment, the trial court has ordered:
'That the suit be and the same is hereby decreed in part on contest with corresponding costs against all the defendants and the plaintiff's right, title and interest over the suit property are hereby declared. The defendants be permanently restrained from interfering in their possession as they have not yet acquired an? title over the property by any hostile animus. But I am unable to give any decree to the plaintiffs against the defendants 1 to 3 to deliver any paddy as no satisfactory evidence is led to that effect.'
The suit properties have been fully described in Schedule 'A' of the plaint belonging to the joint family. There is no prayer for declaration of title or for recovery of possession. The present plaintiffs are not entitled to injunction, inasmuch as they are not in possession. There cannot be any injunction against the defendants in respect of the entire joint family properties when admittedlythey are co-sharers. In view of this position, the decree as described above is wrong.
9. We have already indicated above that in the facts of a case like the present one, the substituted legal representatives are entitled to continue the suit on the basis of the claim laid by the original plaintiff. They are not entitled to plead to the contrary and obtain reliefs which the plaintiff herself was not entitled to, i. e. the substituted legal representatives are not entitled to claim independent title of theirs contrary to what had been claimed in the suit. In view of such position in law, relief granted to the plaintiffs seems to be wholly out of place. Prejudice is bound to have occurred to the defendants in as much as there has been no claim of title on the basis of the Settlement or under the Will and yet the transposed legal representatives have got their rights declared without a claim being laid. In view of the limitation regarding the scope of the continuation of the suit by the legal representatives of a deceased plaintiff, the learned Subordinate Judge was not justified in giving the decree to the present plaintiffs on the basis of the Settlement and the Will. We think it appropriate that the decree of the learned Subordinate Judge should be vacated and the legal representatives of the original plaintiff should be left to work out their own rights in independent suits. Similarly, the question of adoption should be left to be examined without being concluded by the findings in the present suit. We, accordingly, allow the appeals, vacate the judgment and the decree of the learned Subordinate Judge and dismiss the suit filed by Urmila. We make it explicitly clear that the claim laid by the legal representatives of Urmila or the claim of adoption are left open to be adjudicated as and when raised in appropriate proceedings.
10. The net result, therefore, is all the three appeals are allowed, the judgment and the decree of the trial Court are set aside and the suit is dismissed. In the circumstances of the case, each party is directed to bear its own costs throughout.
Misra, Ag. C.J.