ASHWATH RAO Vs. SUSHILABAI

JUDGEMENT

(1.) This petition arises in the following way. The plaintiff in O. S. No. 2/1 of 1965 on the file of the Civil Judge, Raichur, filed the suit against one Kattamma, for partition and possession of properties left behind by her husband and father-in-law. It is alleged that she and Kattamma alone were entitled to succeed to the said properties. The defendant Kattamma died on 20-5-1968 leaving behind her the plain-tiff as the sole heir, according to the plaintiff. Ordinarily, the suit abates in such circumstances. But on 17-8-68 an application, purporting to be under R. 17 of Order VI read with Rule 7 of Order VII and Rule 3 of Order I, Civil P. C. was filed by the plaintiff to bring the proposed legal representatives on record. The ground on which they are sought to be brought on record is that they were in possession of the suit properties as intermeddlers, thus falling within the definition of 'legal representative' under Section 2(11) of the Civil P. C.

(2.) The proposed legal representa-tatives after notice entered appearance and contested the stand of the plaintiff and objected to be brought on record as such legal representatives of Kattamma the deceased defendant. Among the grounds urged by them, it was alleged that the plaintiff had no title to the suit properties and that they have been in possession of them in their own right. They do not, however, deny the title of Kattamma to the suit properties. On these pleadings, the court allowed the application. Although the application as such had not been made under Rules 3 and 5 of the Order 22 of C. P. Code, the Court appears to have dealt with the question with reference to these provisions. Aggrieved by this order, the proposed legal representatives have approached this court. It is also relevant to notice that the petitioners themselves at one stage had attempted to come on record, presumably claiming a title adverse to both the parties to the suit. I should, however, like to clarify that from the records before me it is not possible to predicate with certainty what their grounds were in the said petition. That petition was rejected.

(3.) Sri S. R. Kagalkar, the learned counsel appearing in support of the petition, submitted that the petitioners could not be brought on record as the legal representatives of the deceased Kattamma, mainly for the reason that they were not claiming title under the deceased, nor did they at any time claim to be heirs of such person. Alternatively, he submitted, that on her own showing the plaintiff claims to be the heir of the deceased Kattamma and as such the suit necessarily abates as she could not sue herself in the capacity of the heir of the defendant. He further argued that in the facts and circumstances of the case, his clients could not be said to be legal representatives or intermeddlers merely on the ground that they were in possession of the suit properties, albeit in their own right, so as to bring them within the scope of the definition in Section 2(11), Civil P. C. Lastly, he contended that the plaintiff in the suit had sued for partition and possession in the legal character of a sharer and she could not now be permitted to sue third parties for possession on the basis of title. In short the amendment, if allowed, would bring about a total change in the cause of action.