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PETITIONER: VIDYAWATI

       Vs.

RESPONDENT: MAN MOHAN & OTHERS

DATE OF JUDGMENT01/05/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1995 AIR 1653            1995 SCC  (5) 431  1995 SCALE  (3)680

ACT:

HEADNOTE:

JUDGMENT:                           O R D E R      The respondents  - plaintiffs  laid a  suit on  June 5, 1984 in  the Court  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 in the property under a will said to  have been executed by Smt. Champawati, 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 applicant  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 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.      It is  contended  for  the  petitioner  that  both  the plaintiff -  first defendant and the petitioners’ claims are founded on  the will executed by Champawati, where the first defendant had right and interest for life and the petitioner had right  thereafter and  as such  she could raise the plea which Brijmohan  Kapoor could  have raised  in  his  written statement. The  courts below  were not  right in refusing to permit the  petitioner to file additional written statement. In support  thereof, the  petitioner placed strong relisance on the judgment of this Court in Bal Kishan vs. Om Parkash & Anr. AIR 1986 SC p.1952.      It is  seen that the petitioners’ claim of right, title and interest  entirely rest  on the  will said  to have been

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executed by  Champawati in favour of the first defendant and herself. It  is now  admitted across  the Bar that the first defendant had  life interest created under the will executed by Champawati.  Therefore, the  said interest is co-terminus with his  demise. Whether  the  petitioner  has  independent right, title  and interest  de hors  the claim  of the first defendant  is   a  matter  to  be  gone  into  at  a  latter proceedings.  It  is  true  that  when  the  petitioner  was impleaded as  a party  - defendant, all right 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.      This Court in Bal Kishan vs. Om Parkash & Anr. AIR 1986 SC 1952 has said thus:      "The sub-rule  (2) of  Rule of  Order 22      authorised the legal representative of a      deceased defendant to file an additional      written  statement   or   statement   of      objections raising  all pleas  which the      deceased-defendant  had  or  could  have      raised except  those which were personal      to     the     deceased-defendant     or      respondent."      The  same   view  was   expressed  in  Jagdish  Chander Chatterjee &  Ors. vs.  Sri Kishan  & Anr., 1973 (1) SCR 850 wherein this Court said:      "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 also in their      personal  capacity  avoiding  thereby  a      separate suit  for  a  decision  on  the      title."      This being  the position  in law, the view of the court below is  perfactly legal.  It is  open  the  petitioner  to implead herself  in her  independent capacity  under Order 1 Rule 10  or  retain  the  right  to  file  independent  suit asserting her  own right.  We  do  not  find  any  error  of jurisdiction  or  material  irregularity  committed  in  the exercise of  jurisdiction by  the court below warranting our intereference. The SLP is, accordingly, dismissed.