SMT. AMBALIKA PADHI AND ANR versus RADHAKRISHNA PADHI AND ORS.

Citation: [1991] SUPP. 3 S.C.R. 230 · Decided: 06-12-1991 · Supreme Court of India · Bench: M.M. PUNCHHI · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
SMT, AMBALIKA PADHI AND ANR .. 
\I. 
RADHAKRISHNA PADHI AND ORS. 
DECEMBER 6, 1991 
[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 D 1, 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 s

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