Holding

A suit for a property right may be continued by legal representatives substituted after the plaintiff’s death, and a preliminary objection not raised in the trial court cannot be entertained on appeal.

Summary

Urmila Padhi filed a suit for declaration of title based on a 1968 partition and later died during the proceedings. Her brother’s son and sister were brought in as legal representatives under a deed of settlement and a will executed by her. The trial court upheld the suit, finding the settlement and will valid and granting a declaration of title. The respondents appealed, raising a preliminary objection that the substituted plaintiffs, not being natural heirs, could not continue the suit, and the Orissa High Court dismissed the suit on that ground. The Supreme Court held that the cause of action for a property right survives the plaintiff’s death and that the substituted plaintiffs may continue the suit as originally framed; a preliminary objection not raised in the trial could not be entertained. Accordingly, the High Court’s judgment was set aside and the appeal was allowed.

Issues considered

The suit’s maintainability after the death of the original plaintiff when substituted parties are not natural heirs but claim under a deed of settlement and a will.
Whether a preliminary objection not raised in the trial court can be entertained on appeal.
Whether the cause of action for a property right survives the death of the plaintiff.

Legislation cited

Code of Civil Procedure, 1908s. Order 22 Rules 1 and 5, s. Order 7 Rule 1

Subjects

substitution of partieslegal representativescause of actionpreliminary objectiondeed of settlementwillcivil proceduretitle suitproperty rightscontinuation of suit after death

Judgment

A SMT, AMBALIKA PADHI AND ANR..
\I.
RADHAKRISHNA PADHI AND ORS.

DECEMBER 6, 1991

B [M.M. PUNClffiI AND B.P. JEEV AN REDDY, JJ.]

Code of Civil Procedure, 1908:

Order 7, Rule 1 and Order 22, Rules 1 and 5-Suit for declaration of
title--Plaintiff s death during pendency of suif--Substitution of legal represen-
C tatives, who were not natural heirs, on the basis of deed of settlement and will
executed in their favour by deceased plaintiff-Continuance of suit by substi-
tuted plaintiffs as originally framed-Maintainability of-Objection not taken
, in trial cour~Whether could be permitted to be raised in appeal.

One 'U' instituted a suit for declaration of title to, and confirmation·
D of her possession over, the suit fands •. These lands were given to her in a
partition, effected by a partition deed registered in 1968, between her and
her late husband's uncle Dl. During the peridency of the suit she died. The
appellants, the deceased plaintifrs sister and brother's son, were brought
on record as legal representatives, on the basis of the deed of settlement
E and a will executed by her, in their favour bequeathing the suit properties.
The appellants-substituted plaintiffs continued the suit as originally framed.

Meanwhile, Dl also died and his daughter, Dl(C), was brought on
record alongwith Dl's sons, D2 and DJ. Dl(CJ's son, DS was also im-
pleaded as party on tl~e plea that he was taken in adoption by the original
F plaintiff, by a registered deed of adoption.

The suit was resisted by the respondents-defendants. While Dl(C)
and DS admitted the partition deed denied the validity of the will in favour
of one of the appellants-substituted plaintiffs, D2 and his wife, D6, put
forward an inter se partition between D2 and DJ. However, D3 denied the
G partition and contended that there was a partition between D1, D2 an,d DJ
in 1952 and hence there was no question of subsequent partition in 1968
between Dl and the deceased 'plaintiff.

The trial court did not accept the respondents-defendants' case and
decreed the suit on the fmding that there was a partition in 1968, as
H claimed by the original plaintiff, and that the deed of settlement and the

230
AMBAUKA v. RADHAKRISHNA 231

will executed by the deceased plaintiff were valid. Accordingly, it granted A
a declaration or title over the disputed property in favour of the appellants
and restrained the respondents-defendants from interfering with the
possession.

Aggrieved, the respondents-defendants filed appeals before the High
Court. They raised a preliminary objection that the suit as it stood was not B
maintainable and the two appellants, who had been substituted in place of
the deceased plaintiff during the pendency of the suit could not proceed
with the suit and were also not entitled to the reliefs claimed by the original
plaintiff, since they were not members of the family and were strangers.
Upholding the objection, the Division Bench held that since the appellants
were claiming on the basis of deed or settlement and will, their cause of C
action was different from that of the original plaintiff and, therefore, they
could not continue -the suit, and that the legal representatives of the
original plaintiff should work out their own rights in independent suits.

Hence the appeal by the substituted plaintiffs.
D
Allowing the appeal, this Court,

HELD: 1.1 The High Court was wrong in allowing the appeals of the
respondents and dismissing the suit on the so-called "preliminary objec-
tion", without going into the merits of the appeals. The trial court has E
found both the settlement and will in favour of the appellants-the substi-
tuted plaintiffs as true and valid. Merely because they are claiming to be
legal representatives under a_ settlement and a will, it cannot be said that
their cause of action is different from the cause of action of the original
plaintiff. It is not correct to say that had the appellants been natural heirs
they would have been entitled to continue the suit but, since they say that F
they are claiming on the basis of a deed of settlement and a will, they
cannot do so. [236 C-D]

1.2 The appellants-substituted plaintiffs were indeed seeking to
.. . continue the suit as filed by the original plaintiff and for the same reliefs
as were claimed by her. They were not claiming any other or different G
right. They have not amended the basis of the suit or the reliefs asked for.
Indeed, the settlement and will executed in their favour were in issue in the
suit tiled by the original plaintiff herself and findings were recorded
affirming both the deeds. The right claimed by the original plaintiff-was
not a personal right. It was right to.property which she settled upon and
bequeathed to the appellants. In such circumstances, the "preliminary H

•
., ~

; <~-~
. ·• 232 SUPREME COURT REPORTS [1991] SUPP. 3 S. C. R.

A objection" raised by the respondents-defendants in their appeals before
the High Court which they did not raise in the suit, ought not to have been
entertained, much less accepted. [236 E-FJ

1.3 In the circumstances, the Judgm·ent and the decree of the High
Court in the first appeals are set aside. The High Court should dispose of
B the appeals on merits.
Mohinder Singh & Ors. v. Chander Singh & Ors; Dukh Haran Tewary
& Ors. v. Dulhin Bihasa Kuer, AIR, 1963 Patna 390; Om Prakash v. Union
. ofIndia, AIR 1978 Punjab & Haryana 272; Kunwar Singh v. Om Kant, AIR
1978 Jammu & Kashmir 22; Vanamamalai Thevar & Ors. v. Narayana
c Pillai, AIR 1968 (2) M;L.J. 622; Dareppa Alagouda v. Mallappa Shiva/in-
gappa, AIR 1967 Bombay 307; Ram Ugrah v. Ganesh Singh, AIR 1940
Allahabad 99, referred to.

CIVIL APPELLATE JURISDICTION_: Civil Appeal No. 3173 of1981.

D From the Judgment and Order dated 6.10.1980 of the Orissa High Court
in First Appeal Nos. 145n1, 9 & 15 of 1972.

Rajinder Sachhar and A.K. Panda for the Appellants.

P.N. Misra (NP) and P.D. Shanna (NP) for the Respondents.
E
"
f· The Judgment of the Court was delivered by
t B.P. JEEVAN REDDY, J. This Civil Appeal is preferred by the
plaintiffs against the judgment and decrees of the Orissa High Court made in
F three appeals viz., F.A. No. 145of1971, F.A. No. 9of1972 and F.A. No. 15
of 1972.

The suit was instituted by Smt. Urmila Padhi for declaration of her title
to plaint-B schedule lands and confirmation of her possession thereon. The
basis of her claim was the partition effected on 22.6.1968. Alternatively, she ·.-
G prayed for a fresh partition. (Certain other minor reli.efswere sought for which
need not be set out here). According to her, Judhishter (D-1) and Srinivas were
brothers. Defendants 2 and 3 are the sons of first defendant Srinivas had a son,
Khalli who died long prior to the institution of the suit. Plaintiff is his widow.
First defendant was the karta of the joint family and was managing i.ts a(fairs.:
In the year 1967, there was a partition whereiit plaintiff was given six 'annas
H share while 10 annas' share was kept by first defendant and his family. Adeed
AMBALIKA v. RADHAKRISHAN [REDDY, J.] 233

of partition was executed on 22.6.1968 and registered on 27.6.1968. Since A
:_.
then, parties are in separate possession and enjoyment of the lands falling to
their respective shares. Plaintiff was afflicted by cancer: D-4 is her sister. She
appointed. the husband of the fourth defendant as her power of attorney-holder
to manage her properties. On 31.10.1968, she executed a deed of settlement in
~ respect of some of her properties (mentioned in plaint-D schedule) in favour
of fourth defendant and simultaneously cancelled the power of attorney in B
favour of her husband. On 24.1.1969, she executed a will in favour of her
brother's son in respect of her remaining properties. While she was at Cuttack,
defendants 1, 2 and 3 did not allow her or her representatives/ agents to harvest
the paddy or collect the usufruct from her lands. Hence the suit.

Plaintiff Unnila died pending the suit Her brother's son Bhojakrishna c
Panda came on record as her legal representative on the basis of the will dated
24.1.1969. Fourth defendant supported the plaintiffs case and later transposed
as plaintiff No. 2.

First defendant too died after institution of the suit His daughter
Mahalakshmi was brought on record as his legal representative alongwith D
defendants 2 and 3. Son of Mahalakshmi was impleaded as fifth defendant. The
case of Mahalakshmi and D-5 was that fifth defendant was taken in adoption
by plaintiff on 17.4.1968 after performing the necessary rites, which is
evidenced by a registered deed of adoption. They admitted the story of partition
set up by the plaintiff. They denied the validity of the will dated 24.1.1969.
According to them, plaintiff Urmila died on 20.4.1967 at Cuttack while E
undergoing treatment for cancer. On the date of alleged will (i.e. on 21.4.1969)
she was not in· a fit state of mind nor did she have any independent advice
available to her. The fourth defendant took advantage of her situation and
obtained the said will from her, they stated.

-- D-2 alongwith his wife D-6 filed a separate written statement. They did
not seriously contest the case except trying to safeguard the partition between
the plaintiff and Judhishter. They put forward an inter se partition between D-
F

2 and the third defendant.

Third defendant also filed a separate written statement wherein he denied G
the story of partition. According to him, the second defendant is the culprit
behind the whole game and it is he who; with a view to secure a major portion
of the property, created several documents with the help of the fourth defendant's
husband. According to him, a partition had taken place between defendants 1,
2 and 3 in the year, 1952 and, therefore, there was no occasion for another
partition in the year, 1968. H
234 SUPREME COURT REPORTS . (1991) SUPP. 3 S. C.R.

A On the above pleadings the trial court framed appropriate issues and
decreed the suit with the following findings :

a) the plea of partition in the year 1952 put forward by third defendant
is not established;

B b) there was a partition in 1968 as alleged by plaintiff and it was also
acted upon;

c) the claim of adoption of fifth defendant by plaintiff, Urmila, is not
established; and

C d) the deed of settlement and the will executed by the first plaintiff are
valid.

Accordingly, a declaration of title over the disputed property was granted
in favour of the plaintiffs and the defendants were restrained from interfering
with the plaintiffs possession. The claim for mesne profits was, however, ne-
D gatived.

Three appeals were preferred in the Orissa High Court. F.A. No. 145 of
1971 by third defendant, F. A. No. 9 of 1972 by defendant No. l(C)
(Mahalakshmi) and her son, fifth defendant and P.A. No. 15 of 1972 by the
second defendant and his wife, the sixth defendant. All the three appeals were.
E heard together by a Division Bench. Before the Division Bench a "preliminary
objection" was raised by the appellants/defendants 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." It was contended by the defendants/appellants that the legal represen-
F
tatives of the deceased plaintiff, Urmila, are not members of the family; that
they are strangers and that "they cannot prosecute the suit as if the original
plaintiff is not dead." They relied upon certain decisions in support of their
contentions. The Division Bench referred to those decisions, to the wording of
reliefs sought for in the plaint and observed :
G
''Thus, it would appear that the contention of Urmila in ·the plaint
was that she was in possession of the properties, especially sched-
ule '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
H settlee. If Ambalika now claims possession by virtue of the deed

,·
AMBALIKA v. RADHAKRISHAN [REDDY, J.] 235

of seuJement, then it would be contrary to the claim of Urmila A
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 is not necessary in the district· of which the properties
belong. But for claim of title on the strength of will, all the require-
ment or the genuineness of the Will are to be gone into. But from
the nature of the suit set up by Unnila which is being continued by B
both the plaintiffs, these questions cannot be gone into. Therefore,
title to be set up by both the plaintiffs relates on the deeds of as-
.signments and testamentary document in favour of the respective
plaintiffs. They have to claim title and either for confinnation of
possession or for recovery of possession. This cannot be the prayer
of Urmila. The claims of both the plaintiffs are based on their own C
individual rights, but not as representatives of Urmila to continue
the suit for the reliefs claimed in the suit"

The Division Bench then proceeded to observe that the present plaintiffs
(brought on record as legal representatives of original plaintiff, Urmila) cannot
agitate their rights based upon the deed of settlement or deed of will in this suit D
and that they can do so only in a separate suit The Division Bench observed
further:

"the right of partition or the right as prayed for was personal to the
original plaintiff namely Urmila and the present plaintiff not being
the natural heirs cannot continue the suit for partition unless they E
establish their right by devolution under settlement and will."

The Division Bench was of the opinion that the cause of action for both
the. present plaintiffs (who have been substituted and transposed) is entirely
different from the cause of action which was available to the plaintiff. While F
one claims under a settlement, the other claims under a will. The deed of
settlement also does not say that the possession has been delivered to second
plaintiff. Therefore, they are also not entitled. to the injunction. Another
observation made by the Bench is to the following effect :

"There is no prayer for declaration· of title or for recovery of G
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 admittedly they are co-sharers. In view of
this possession, the decree as described above is wrong." ·
H
236 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.
/

A Finally, the Division Bench reiterated its view, stated earlier, that since
the present plaintiffs are claiming on the basis of settlement and will, their
, cause of action is different from that of the original plaintiff and therefore, they
cannot continue the suit Accordingly, the Bench vacated all the findings of the
trial court with the observation that the legal representatives of the original
plaintiff should be left to work out their own rights in independent suits. All the
B three appeals were allowed and the suit filed by Unnila was dismissed.

We have heard counsel for tlte parties and are of the considered opinion
that the High Court was wrong in allowing the appeals and dismissing the suit
on the so-called "preliminary objection", without going into the merits of the
appeal~. 1b~ trial court has found both the settlement and will, in favour of the
C present plaintiffS true and valid. The present plaintiffs are claiming under the
original plaintiff and are continuing the same suit. They have not amended the
basis of the suit or the reliefs asked for. We are unable to see how their cause
of action is different from the cause of action of the original plaintiff, merely
because they are claiming to be legal representatives under a settlement and a
will. The Division Bench considers that had the present plaintiffs been natural
D heirs they would have been entitled to continue the suit but, they say, since the
present plaintiffs are claiming on the basis of a deed of settlement and a will,
they cannot do so. With respect, we are unable to understand this reasoning.
The present plaintiffs were indeed seeing to continue the suit as filed by the
original plaintiff and for the same'reliefs as were claimed by her. They were
not claiming any other or different right Indeed, the settlement 'and will
E executed in their favour were in issue in the suit filed by the original plaintiff
herself and findings were recorded affirming both the deeds. The right claimed
by the original plaintiff was not a personal right. It was right to property which
she settled upon and bequeathed to the present plaj.ntiffs. In such circum-
stances, the "preliminary objection" raised by the appellants in their appeals,
which they did not raise in the suit, ought not to have been entertained-much
F less accepted.

We may now briefly refer to the decisions relied upon by the High Court
in support of its propositions.

G The first decision cited is in Mohinder Singh & Ors. v. Chander Singh
& Ors. The reference of this decision is not given in the body of the judgment
and, therefore, it is not possible to deal with the principle of the said judgment.
However, two paragraphs from this judgment are quoted in the judgment under
appeal which merely reitreate the well-established principle that a legal
representative can only prosecute the cause of action as originally framed in the
H suit and that if it becomes apparent that the original cause of action is being
AMBALIKA v. RADHAKRISHAN [REDDY, J.]
..,. 237

substituted by another cause of action the matter must be directed to be agitated A
by way of a separate suit :-·~ • "
.,i; .:.,.__ ..,,11' '~~·l'T '

The next decision is in .Dukh Haran Tewary & Ors. v. Dulhin Bihasa
Kuer, AIR 1963 Patna 390. This decision merely holds that an order implead-
ing certain persons as legal representatives of a deceased party does not confer
upon them any title as such and that such order does not bar a regular suit B
regarding the question as to who is the real heir to the deceased party.

The next decision cited is in Om Prakash v. Union of India, AIR 1978
Punjab & Haryana 272. A learned Single Judge held that in personal actions,
the cause of action comes to an end with the death of the plaintiff. In that case
the plaintiff was retired from service on his attaining the age of superannuation C
taking his date of birth as 1.12.1913. He filed a suit for a declaration that his
retirement on the said basis is illegal. He also questioned certain punishment
imposed upon him for producing false certificate. During the pendency of the
appeal, he died. In those circumstances, it was held that since the claim made
by him was personal in nature, the cause of action does not survive.
D

- Kunwar Singh v. Om Kant, AIR 1978 Jammu & Kashmir 22 is a decisin
of a learned Single Judge of Jammu & Kashmir High Court. The landlord sued
for eviction of the tenant on the ground of personal necessity. Pending the
appeal, the landlord died. It was held that since the right claimed was personal
in nature, it does not survive the plaintiff..
E
The next decision is in Vanamama/ai Thevar & Ors. v. Narayana Pillq!_,
AIR 1968 (2) M.LJ. 622. That was a case where the plaintiff had only a life
interest conferred upon him under a deed of settlement. He instituted a suit to
recover possession from alienee/defendants. Pending the appeal, the plaintiff
died. It was held that since his interest was only a life-interest, the relief F
claimed by him in the suit cannot be granted in favour of his legal representa-
tives.

Dareppa A/agouda v. Ma/lappa Shivalingappa, AIR 1967 Bombay 307
is again a case where it was reiterated that the legal representatives of a
deceased defendant cannot assert his own individual or hostile title in the suit G
and that he must abide by and continue the defence taken by the deceased
defendant
•
.The last decision cited is in Ram Ugrah v. Ganesh Singh, AIR 1940
Allahabad 99, a decision of a Full Bench of Allahabad High Court. In this case
too, the principle affirmed is that a legal representative brought on record in· H
238 SUPREME COURT REPORTS [1991] SUPP. 3 S. C. R.
~ . .
A place of mortgagor cannot raise a defence in the final decree proceedings that
1
the mortgage being without legal necessity is not binding on them.
. ;~, .. ,".k •

It would be evident that none of the decisions support the proposition that
even where the subject matter of the suit is right to property and the legal
representatives wish to continue the suit as originally framed, they cannot be
B pennitted to do so if they are not natural heirs or if they claim on the basis of
a deed of settlement and/ or will.

the Civil Appeal, accordingly, succeeds and is allowed. The judgment
and decree of the Orissa High Court in the three first appeals mentioned
hereinabove are set aside. The High Court shall now hear and dispose of the
C said appeals on merits, in accordance with law. The appellants/defendands are
.entitled to costs in this appeal and costS of the appeals in the High Court from
the defendants.

N.P.V. Appeal allowed.

•