LexVIDYAWATI versus MAN MOHAN AND OTHERS
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A VIDYAWATI v. MAN MOHAN AND OTHERS MAY 1, 1995 B [K. RAMASWAMY AND B.L. HANSARIA, JJ.J Code of Civil Procedure, I 908 : Order 22 Rule 4(2)/0rder I Rule J()-[mpleadment of patty defen- C dant-All rights and defences available to the deceased defendant will be available-Such party could either implead in independent capacity or file independent suit asserting his/her own right. The respondents-plaintiffs laid a suit for possession of the suit property against the first defendant, the deceased husband of the D petitioner-second defendant. Respondent No. 1 had been impleaded to represent the said estate. When they sought to file additional written statement claiming title in the property under a will, the trial court dismissed the application, holding that if a legal representative wanted to raise any individual point which the deceased party could not have raised, E he must get himself impleaded in his personal capacity or be must chal· lenge the decree in a separate suit. A reYision was filed in the High Court and it was dismissed. Hence this Special Leave Petition. Dismissing the petition, this Court F HELD : 1. It is open the petitioner to implead herself in her inde- . G pendent capacity under Order 1 Rule 10 or retain the right to file inde· pendent suit asserting her own right. There is no error of jurisdiction or material irregularity committed i11 the exercise of jurisdiction by the court below warranting interference. [959-CJ 2. It is seen that the petitioners' claim of right, title and interest entirely rest on the will said to have been executed by one C in favour of the first defendant and herself. Admittedly the first defendant had life interest created under the will. Therefore, the said interest is co-terminus with bis demise. Whether the petitioner had independent. right, title and H interest de hors the claim of the first defendant was a matter to be gone 956 ~ . VIDYAWA TI v. MAN MOHAN 957 into at a later proceedings. It is true that when the petitioner was im- A pleaded as a party-defendant, all rights under Order 22 Rule 4(2) and defences available to the deceased defendant became 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 B and interest, to resist the claim· made by the plaintiff or challenge the decree that may be passed in the suit. [958-C to E) Bal Kishan v. Om Parkash & Anr., AIR (1986) SC 1952 and Jagdish Chander Chatleljee & Ors. v. Sri Kishan & Anr., [1973) 1 SCR 850, relied on. CIVIL APPELLATE JURISDICTION: Special Leave Petition (C) No. 9356 of 1995. From the Judgment and Order dated 10.11.94 of the Delhi High c Court in C.R.No. 953 of 1994. D B.D. Sharma for the Petitioner. The following Order of the Court was delivered : The respondents - plaintiffs laid a suit on June 5, 1984 in the Court E of Senior Subordinate Judge, Delhi for possession of the suit property against first defendant Brijmohan Kapoor, deceased husband of the petitioner - second defendant. Shri Man Mohan s/o Jagmohan Kapoor has now been impleaded to represent the estate of Brij Mohan Kapoor. When they sought to file additional written statement claiming title to and interest F in the property under a will said to have been executed by Smt. Cham- pawati, the petition was dismissed by the trial court in suit No. 418/84 by order dated August 6, 1994 holding that "it is not open to the present appellant to assert her own individual or hostile title to the suit.'.' It was held that if a legal representative wants to raise any individual point which the deceased party could not have raised, he must get himself impleaded G in his personal capacity or he must challenge the decree in a separate suit. In that view she was not permitted to file the additional written statement. Challenging the order, revision was filed in the High Court. Learned single Judge of the High Court in Civil Revision No. 953/94 dated November 11, 1994 dismissed the revision. H A B 958 SUPREME COURT REPORTS [1995] 3 S.C.R. It is contended for the petitioner that both the plahitiff - first defen- dant and the petitioners' claims are founded on the will executed by Charripawati, where the first defendant had right and interest for life and the petitioner had right thereafter and
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