MANU/SC/0073/1992

Equivalent/Neutral Citation: AIR1992SC 431, 1992(2)APLJ (SC ) 47, 1992(1)APLJ (SC ) 47, 1992(1)ARC 187, 1992 (1) C C C 37 ,
73(1992)C LT92(SC ), JT1992(1)SC 10, 1992-1-LW360, (1992)IIMLJ24(SC ), 19921RRR200, 1991(2)SC ALE1211, (1992)1SC C 667,
[1991]Supp3SC R230, 1992(1)UJ451

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3173 of 1981
Decided On: 06.12.1991
Appellants:Ambalika Padhi and Ors.
Vs.
Respondent: Radhakrishna Padhi and Ors.
Hon'ble Judges/Coram:
M.M. Punchhi and B.P. Jeevan Reddy, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Rajinder Sachar and A.K. Panda, Advs
For Respondents/Defendant: P.N. Mishra (NP) and P.D. Sharma (NP), Advs.
ORDER
B.P. Jeevan Reddy, J.
1 . This Civil Appeal is preferred by the plaintiffs against the judgment and decrees of
the Orissa High Court made in three appeals viz., F.A. No. 145 of 1971, F.A. No. 9 of
1972 and F.A. No. 15 of 1972.
2 . 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 prayed for a fresh partition.
(Certain other minor reliefs were 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 its affairs. In the year 1967, there was a partition wherein plaintiff was given
six 'annas share while 10 annas' share was kept by first defendant and his family. A
deed of partition was executed on 22.6.1968 and registered on 27.6.1968. Since 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 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.
3. Plaintiff Urmila died pending the suit Her brother's son Bhojakrishna 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.

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 4 . First defendant too died after institution of the suit. His daughter Mahalakshmi was
brought on record as his legal representative alongwith 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
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.
5. 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-2 and the third defendant.
6. Third defendant also filed a separate written statement wherein he denied 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.
7. 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) 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
d) the deed of settlement and the will executed by the first plaintiff are valid.
8. 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 plaintiff's
possession. The claim for mesne profits was, however, negatived.
9. 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. 1(C) (Mahalakshmi) and her son, fifth
defendant and F.A. No. 15 of 1972 by the second defendant and his wife, the sixth
defendant. All the three appeals were 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 representatives
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

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 observed :
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 is not necessary in the district of
which the properties belong. But for claim of title on the strength of will, all the
requirement or the genuineness of the Will are to be gone into. But 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 on the deeds of assignments 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 Urmila. The claims of both the plaintiffs are based on their own
individual rights, but not as representatives of Urmila to continue the suit for
the reliefs claimed in the suit
10. 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 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 establish their right by
devolution under settlement and will.
11. 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 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 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.
12. 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 three appeals were allowed and the suit filed by
Urmila was dismissed.
13. We have heard counsel for the parties and are of the considered opinion that the

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 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 appeals. The trial court has
found both the settlement and will in favour of the 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 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 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 plaintiffs. In such
circumstances, 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 less
accepted.
14. We may now briefly refer to the decisions relied upon by the High Court in support
of its propositions.
15. The first decision cited is in Mohinder Singh and Ors. v. Chander Singh and 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 reiterate the
well-established principle that a legal representative can only prosecute the cause of
action as originally framed in the suit and that if it becomes apparent that the original
cause of action is being substituted by another cause of action the matter must be
directed to be agitated by way of a separate suit.
1 6 . The next decision is in Dukh Haran Tewary and Ors. v. Dulhin Bihasa Kuer
MANU/BH/0113/1963 : AIR1963Pat390 . This decision merely holds that an order
impleading 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 regarding
the question as to who is the real heir to the deceased party.
17. The next decision cited is in Om Prakash v. Union of India AIR 1978 Punj & Har
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 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.
18. Kunwar Singh v. Om Kant AIR 1978 Jam & Kas 22 is a decision 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.

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 19. The next decision is in Vanamamalai Thevar and Ors. v. Narayana Pillai AIR 1968
M.L.J. 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 claimed by him in the suit cannot be granted
in favour of his legal representatives.
20. Dareppa Alagouda v. Mallappa Shivalingappa AIR 1967 Bom 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 and that he must abide by and
continue the defence taken by the deceased defendant.
21. The last decision cited is in Ram Ugrah v. Ganesh Singh MANU/UP/0191/1939 :
AIR1940All99 , 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 place of mortgagor
cannot raise a defence in the final decree proceedings that the mortgage being without
legal necessity is not binding on them.
22. 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 permitted to do so if they
are not natural heirs or if they claim on the basis of a deed of settlement and/or will.
23. 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 said appeals on merits, in accordance
with law. The appellants/defendants are entitled to costs in this appeal and costs of the
appeals in the High Court from the defendants.

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