INAGANTI VENKATARAMA ROW Vs. URRDKVENKATALINGAMA NAYANIM BAHADUR VARU

JUDGEMENT

(1.) This petition arises out of an application made by the legal representative of the deceased plaintiff to amend the plaint as originally filed. The suit was filed by the Rajah of Kalahasti against the defendants on a mortgage executed by him. As the Rajah of Kalahasti before he succeeded to the Zamindari had lent a lakh of rupees to the previous Rajah, on the mortgage of certain villages, he filed a suit in two capacities. He described himself as the 1 plaintiff in his individual capacity and as the 2nd plaintiff in his capacity as the Rajah of Kalahasti. As the transaction according to him took the form of an absolute sale deed with a promise to reconvey and as only a sum of Rs. 84,000 out of the consideration was admitted by him, the reliefs he claimed were a decree for redemption after payment of Rs. 84,000 and for possession or in the alternative, if the transaction be held to be a sale and not a mortgage, for the recovery of Rs. 2,79,045 or such other sum as may be found by the Court to be due as unpaid purchase money. Various defences were put in which it is unnecessary to consider for the purpose of this petition.

(2.) The plaintiff died pending the suit and his successor to the Zamindari applied to be brought on record, as legal representative and was brought on record as the 3 plaintiff. He also applied to amend the plaint by making allegations (1) to the effect that there was only a consideration of Rs. 23,400, (2) that in any event the transaction set out in the plaint, even if true, would not bind him as successor to the estate, as the moneys raised thereunder were not utilised for purposes binding on the estate (3) that the sale alleged in the plaint for Rs. 3,00,000 odd was an improvident transaction, which caused serious loss to the estate and is not binding on him, and (4) that as the original vendee did not perform his undertaking, he is not entitled to remain in possession. The Subordinate Judge allowed the amendment and paragraphs 10(a), 10(b), 10(c) and 12(a) are the amended paragraphs setting forth the contentions of the present zamindar.

(3.) There can be little doubt that under Section 4 of. the Madras Impartible Estates Act 11 of 1904 the present Zamindar is entitled to question the alienations made, or debts contracted, by the deceased plaintiff if the alienations or debts were made or incurred under circumstances which would not entitle the managing member of a Hindu Joint family, not being the father or grandfather of the other co-parceners, to make an alienation or incur adebt binding on the shares of the other co-parceners independently of their consent. The only consent is whether he can do so in his capacity as the legal representative of the deceased plaintiff, I am of opinion that the Subordinate Judge was wrong in allowing the amendment, which virtually amounts Venkatarama to the assertion of a title by the legal representative hostile to that person whom he purports to represent, and denying that the transaction entered into by the deceased plaintiff and on the footing of which he sued is binding on him. In cases where there is a conflict of interests between the deceased plaintiff and his legal representative and where the latter claims that he is not bound by the transactions of the deceased plaintiff, I think the proper course is for the legal representative to file a separate suit to enforce his rights, and that it is not open to the legal representative in his capacity, as such, to repudiate the transactions, which have been admitted by the deceased to be valid and on the footing of the validity of which the deceased claimed certain reliefs in the plaint. Order XXII Rule 3, C.P.C. enacts that where the right to sue services, the Court shall, on the application made in that behalf, cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. So that, it is clear from the above rule that all that the legal representative can do is to take up the suit at the stage at which it was left by the deceased plaintiff and to continue the proceedings as legal representative. It is not open to him to assert any individual and hostile rights, which he may have against the deceased plaintiff and those claiming through or under him and to seek to enforce those individual and paramount rights under the guise of an application to amend the plaint. So far as the amendment of the plaint is concerned, it seems to me that the limits to the amendment should be determined by the consideration whether it would have been granted if the deceased had made the application. Within those limits it is of course open to the legal representative to ask for amendment and the court would, in my opinion, be justified in granting it. But where the amendment sought is one which the deceased himself could not have asked, it seems to me difficult to see how his legal representative could ask for it. It is clear that in the present case it was not open to the deceased zamindar . to question the propriety of his own alienation or to seek a declaration that the alienations made by him and which in terms are not limited to his own life interest in the zamindari are not binding on his successors. It is of course open to the successor, of a zamindar either to affirm an alienation made by him or to treat it as inoperative as being in excess of the powers of disposition vested in him by law. Where the legal representative disaffirms the transaction as in derogation of his individual right, it is difficult to see how the suit to redeem can be converted to a suit to question the propriety of the alienation as against the reversioner.