Bhimavarapu Prasada Reddy vs Bhimavarapu Butchi Reddy

This revision is filed questioning the orders of the Principal District Munsif, Gudivada dated 23-11-1995, by -which I.A.No.1509 of 1995 in O.S.No.96 of 1986 filed for amendment of plaint was dismissed.

The petitioner herein was added as second plaintiff in the suit O.S.No.96 of 1986 as legal representative of his deceased mother, who was the original sole plaintiff in the suit and who died during the pendency of the said suit. The suit was originally filed for the relief of declaration of title of the original sole plaintiff and for recovery of possession of the suit property, which is a house, from the defendant. It was contended in the suit that her father-in-law Ramireddy had executed a will dated 4-11-1967 giving life interest in the suit property to his wife Subbamtna and vested remainder rights to the original plaintiff, who is his daughter-in-law, that her father-in-law died on 7-12-1994 and his wife also died on 31-1-1985 and after their death, she took possession of the suit property as its owner, dial she was subsequently dispossessed by the defendant, who is another son of Ramireddy and that the suit was therefore filed on the basis of the above said will for declaration of title and recovery of possession. During the pendency of the said suit, the original sole plaintiff died and her son, who is the present petitioner, was brought on record as second plaintiff as legal representative of the deceased original plaintiff and he continued to prosecute the suit. The suit was decreed by the trial Court and the defendant filed A.S.No.2 of 1992 before the appellate Court, which allowed the said appeal and dismissed the suit, holding that the will said to have been executed by late Ramireddy is not proved. The present petitioner thereupon filed Second Appeal No.490 of 1992 and the said appeal was allowed by this Court on 11-9-1995 and the matter was remanded to the trial Court directing it to frame an additional and dispose of the suit afresh according to law. After the suit was thus remanded to the trial Court the petitioner herein who is the second plaintiff filed I.A.No.1509 of 1995 under Order 6 Rule 7 of CPC seeking amendment of the plaint so as to permit him to take the alternative plea relating to his title, contending that Ramireddy who had executed the will dated 4-11-1967 had also executed a gift deed dated 7-5-1969, making gift of the suit property to him, that he therefore, became owner of the suit property under the said gift deed and that he may, therefore, be permitted to amend the plaint accordingly to raise such an alternative plea relating to his title.

The trial Court dismissed the petition holding that such amendment sought for by the petitioner cannot be allowed in view of his earlier contention regarding the said gift deed and also as he is added in the suit only as a legal representative of his deceased mother, who was the original plaintiff and as he is not personally impleaded as a party to the suit, so as to base his claim on the gift deed said to have been executed by his grandfather Ramireddy. Questioning such orders, the present revision petition is filed.

Heard both the Counsel.

It is an admitted fact that the suit was originally filed by the mother of the present petitioner for the relief of declaration of her title on the basis of a will said to have been executed by her father-in-law Ramireddy on 4-11-1967, giving vested remainder rights to her in the suit house and for recovery of possession on the basis of such title. During the pendency of the suit, the original plaintiff died and the petitioner was brought on record as her legal representative, as second plaintiff and he continues to prosecute the suit in that capacity. He filed the petition for amendment of plaint after the suit was remanded by this Court contending that his grandfather Ramireddy executed a gift deed on 7-5-1969, which is subsequent to the will, that in view of the said gift deed, he acquired title to the suit house, that he is, therefore, entitled for declaration of his title on the basis of such gift deed also and that therefore, he may be permitted to amend the plaint, to enable him to raise such an alternative plea relating to his title. It is seen from a perusal of the impugned orders of the lower Court that the petition was mainly dismissed on the ground that the petitioner is not added as plaintiff in his individual capacity, that he was brought on record only as legal representative of his deceased mother who based her claim only on the will, that inasmuch as the petitioner is prosecuting the suit only as legal representative of his deceased mother, he is entitled to prosecute the said suit by basing his claim on the will which was set up by his mother in view of the provisions of Order 22, Rule 4(2) of CPC and that therefore, he cannot be permitted to raise the alternative plea on the basis of a gift deed in his individual capacity. In the decision of the Supreme Court reported in Vidyawati Vs. Man Mohan and others, , which was also referred to before the lower Court, the plaintiff filed the suit for recovery of the possession of the suit property against the defendant, who died during the pendency of the suit and in whose place his legal representatives were brought on record. They filed a petition for permission to file additional written statement on their behalf claiming title to the suit property under a will, which was not the basis of the claim of the deceased original defendant. The trial Court dismissed the petition holding that it is not open to the legal representatives of the deceased original defendant to assert her own individual or hostile title to the suit properly and that if the legal representative wants to raise any individual point which the deceased party could not have raised, he must get himself impleaded as a party in his personal capacity. When the matter came up for consideration before the Supreme Court in the above said decision, their Lordships upheld the view of the trial Court and observed as follows :-

"It is true that when the petitioner was impleadcd as a party - defendant, all rights under Order 22, Rule 4(2) and defences available to the deceased defendant become available to her. In addition, if the petitioner had any independent right, title or interest in the property then she had to get herself impleaded in the suit as a party defendant in which event she could set up her own independent right, title and interest, to resist the claim made by the plaintiff or challenge the decree that may be passed in the suit. This is the view the Court below has taken rightly."

Their Lordships also referred to the observations of the Supreme Court in an earlier decision reported in Jagdish Chander Chatterjee and Others Vs. Shri Kishan and Another, with approval and the said observations in that earlier decision of the Supreme Court are as follows :-

"The legal representative of the deceased respondent was entitled to make any defence appropriate to his character as legal representative of the deceased respondent. In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Indeed this does not prevent the legal representative from setting up also their own independent title, in which case there could be no objection to the Court impleading them not merely as the LRs. of the deceased but aiso in their personal capacity avoiding thereby a separate suit for a decision on the title.''''

Such observations made by their Lordships of the Supreme Court in the above cited two decisions clearly apply to the facts of the present case.

As already stated above, the present petitioner is not added as second plaintiff in his individual capacity. He was brought on record only as legal representative of his deceased mother, who based her claim only on the will said to have been executed in her favour by her father-in-law. The original plaintiff was not concerned with the gift deed and it was not her case that she is entitled to the suit property on the basis of the gift deed also and such plea was not therefore open to her. When the original plaintiff was not entitled to raise such plea on the basis of such a gift deed, her legal representative, who is the present petitioner is also not entitled to such plea, inasmuch as he is brought on record only as legal representative of the deceased plaintiff. Therefore, in view of the provisions of Order 22, Rule 4(2) of CPC and in view of the view expressed by the Supreme Court in the above cited decisions, the lower Court rightly dismissed the petition and I do not find any error of jurisdiction or material irregularity committed by the trial Court warranting interference in the present revision-petition.

The lower Court dismissed the petition on another ground also namely that the petitioner is not bona fide, in seeking the amendment, as he had previously contended in his rejoinder that the plaint schedule property was not covered by the gift deed executed by late Ramireddy and that it is now not permissible for him to base his claim on such gift deed by raising a plea contra to his earlier version. It is to be seen in this connection that the defendant in the suit, who is the present respondent sought amendment of his written statement in the suit to raise the plea that late Ramireddy had executed a gift deed in favour of the present petitioner, and that in view of such gift deed, the original plaintiff was not entitled to claim any title to the suit property on the basis of the will. When such additional written statement was filed by the defendant in the suit after obtaining permission of the Court, the present petitioner who was already added as second plaintiff in the suit, filed his rejoinder specifically contending that the present plaint schedule property was not covered by the above said gift deed and that the proposed amendment is contra to the original written statement filed by the defendant. The petitioner who was added as legal representative of the deceased sole plaintiff, during the pendency of the suit did not try to base his claim in the suit property on the gift deed inspitc of the fact that the defendant specifically came up with the version in his additional written statement that such a gift deed was executed regarding the suit property by late Ramireddy, making a gift of the same to the present petitioner. He did not also try to base his claim on the gift deed during the pendency of the first appeal and also during the pendency of the second appeal in the High Court. He came up with such an alternative plea on the basis of the gift deed only when the suit was remanded by the High Court to the trial Court directing the trial Court to frame an additional issue and dispose of the suit afresh. The present plea of the petitioner as raised in the amendment of the plaint sought for by him is completely contra to the earlier stand taken by him in his rejoinder filed in the suit, as already stated above. In view of such circumstances, the trial Court felt that the petitioner cannot be permitted to raise such a contradicting plea by way of amendment of plaint and dismissed the petition. The learned Counsel for the revision petitioner however tries to rely upon the decision of the Supreme Court reported in Srinivas Ram Kumar Vs. Mahabir Prasad and Others, , which was also referred to in the lower Court, in support of his contentions that amending of pleadings cannot be rejected on the ground that two or more inconsistent sets of allegations are sought to be made by way of such amendment. But as rightly observed by the lower Court, it is not a case of raising inconsistent pleas or claims, nor is it a case of seeking a relief only as an alternative claim. It is a case where the petitioner himself came up with a specific version in the rejoinder filed in the suit that the suit property was not covered by the gift deed executed by late Ramireeddy and he now tries to change his version and contend that the suit property is covered by the said gift deed and he acquires title to the same under the said gift deed also. In view of such circumstances also, the lower Court dismissed the petition. There are no absolutely no valid reasons to interfere with the said orders of the lower Court, especially as the petitioner is not impleaded in the suit in his individual capacity.

In the result, the revision petition is dismissed. No costs.