Smt. Amar Devi vs Smt. Shakuntla Devi

D.B. Lal, J.—This second appeal by Smt. Amar Devi is directed against the decision of the learned District Judge, Kangra, in a suit filed by Shri Sansar Singh for redemption of a mortgage. A preliminary decree was granted in favour of the Plaintiff. Shri Sansar Singh alleged that he mortgaged the disputed land on May 22, 1950, in favour of Smt. Arnar Devi for a consideration of Rs. 300/-. According to him the entire amount was paid off because the mortgage being usufructory, Smt. Amar Devi was in possession and she appropriated a number of trees. As such the entire mortgage money was paid off and Shri Sansar Singh claimed possession alter redemption without payment of any amount.

The defence of Smt. Amar Devi was that none of the trees was cut and the mortgage money is still due although the possession remained with her. She also pleaded that Shri Sansar Singh executed a gift deed on March 12, 1959, in favour of Shri Bharat Singh, Smt. Shakuntla Devi and Smt. Ram Devi. As such he ceased to have any interest and had no locus standi to file the present suit. Shri Sansar Singh died during the pendency of appeal and in his place Smt. Shakuntla Devi was substituted as legal representative. It was pleaded on behalf of Shri Sansar Singh that the gift was the result of fraud and undue influence and that it was also hit by a custom besides being onerous and not binding on the parties. It was further pleaded that it was a conditional gift and Shri Bharat Singh and others did not fulfil the condition and so Shri Sansar Singh could be deemed to have revoked the gift. Infact Shri Sansar Singh executed a registered deed of cancellation on April 20, 1959.

Shri Bharat Singh, Smt. Shakuntla and Smt. Ram Devi were not made parties to the suit. The latter two are the daughters of Shri Sansar Singh of whom Smt. Shakuntla Devi is now impleaded as legal representative of the deceased Sansar Singh.

The learned District Judge held that the gift was defective because it was not accompanied by delivery of possession. He further held that no tree was cut and the entire amount of Rs. 300/- was due and payable. Accordingly the appeal was allowed and the suit was decreed for redemption. It has to be recalled that the learned trial Judge had dismissed the suit holding that the gift was proved in favour of Shri Bharat Singh and others and Shri Sansar Singh was left with no interest and he could not sue for redemption.

Smt. Amar Devi came in second appeal before the High Court and it was held that Bharat Singh, Shakuntla and Ram Devi were necessary parties. The plea regarding gift was left open for a fresh decision in the presence of these persons. The ease was remanded for impleading Bharat Singh, Shakuntla Devi and Ram Devi. They could file written statements. The issues were to be framed and a fresh decision was required to be given. The learned trial Judge has acted accordingly. He has framed elaborate issues and has considered every aspect of the case relating to the gift as made by Shri Sansar Singh. The findings have come to this Court and it is held that the gift was valid and could not be struck down on any ground. The finding of the trial Judge was maintained that no tree was cut and the entire amount of Rs. 300/- was due. However, Shri Sansar Singh had no locus standi. As such the suit is to be dismissed. The learned trial Judge also considered the plea of Smt. Shakuntla Devi that she was not only a legal representative but also a donee from Shri Sansar Singh and as such she could maintain the suit even as donee if not as legal representative. His finding is that Smt. Shakuntla Devi cannot set up a title independent of the title set up by Shri Sansar Singh. She is only a legal representative and was substituted in place of Shri Sansar Singh. She cannot superimpose her title as donee mortgagor. If Sansar Singh was non-suited, she cannot survive being his legal representative.

Against the findings of the learned trial Judge either party has not filed any objection. Nevertheless, the learned Counsel argued the matter once again before this Court. It was emphasised on behalf of Smt. Amar Devi that Smt. Shakuntla Devi was unable to set up a title independent of the one claimed by Shri Sansar Singh. There is a marked difference in the language of Rule 3 and Rule 4 of Order 22 of the Code of Civil Procedure. While in the case of death of a sole Plaintiff where the right to sue survives the legal representative is made a party and he proceeds with the suit. It is not provided that he can take any plea which suits his character. The presumption is that his plea is confined to that very plea which was open to the deceased Plaintiff. In Rule 4 of Order 22 on the other hand where one of the Defendants dies, the legal representative may make any defence "appropriate to his character as legal representative". This language is not to be found in Rule 3 and the obvious inference that while in the case of a Defendant legal representative any plea in defence can be set up, in a case of plain tiff legal representative he is to confine his claim on the very same cause of action and no other as set up by the deceased Plaintiff. When a party to a suit dies, a legal representative is appointed merely in order that the suit might proceed and a decision be arrived at. It is the original parties'' rights and disabilities that have to be considered and not those of the legal representatives. A person who is impleaded as the legal representative of deceased party can raise only such objections as could have been taken by the deceased party himself. In V.T. Elava Pillai v. Ramasami Jadava Goundan AIR (34) 1947 Mad 165 which was a case under Order 22 Rule 3 it was held that where the amendment sought is one which the deceased Plaintiff himself could not have asked, his legal representative cannot ask for it. Shri Sansar Singh could not have sought the amendment that he executed a gift deed and even then he could retain his title for the suit. He was thea clearly non-suited. He could not bring in his daughter Smt. Shakuntla Devi in his place to act as Plaintiff. If that was the position how could Smt. Shakuntla Devi be permitted to take up a plea that although Shri Sansar Singh had no title, yet she could continue the suit as his donee. For this she may file another suit for redemption.

It is abundantly clear that the gift has been held to be valid. no objections have been filed to the findings of the learned trial Judge. I have otherwise gone through the evidence adduced before him. It was not proved that the gift was executed based on any fraud, undue influence or misrepresentation. It was not an onerous gift. It was neither conditional nor could be revoked by Shri Sansar Singh. The subsequent registered cancellation deed could not devest the donees of the title in the property. Therefore, Shri Sansar Singh had no title. Similarly Smt. Shakuntla Devi as legal representative of Shri Sansar Singh has no title or locus standi to file the suit. As such the suit is to be dismissed and the finding of the learned trial Judge is to be restored.

The appeal is allowed and the judgment and decree of the learned District Judge are set aside while those of the learned trial Judge are restored. The parties are, however, left to bear their own costs.