Aiyasha Begum Zainulla Shah vs Kapurchand Rajmal

K.K. Desai, J.

[After stating the facts, the judgment proceeds-].

Mr. Vyas for the plaintiff attempted to contend that since a portion of the tenement consisting of gala No. 10 only had been in occupation of Zainullah and the defendants, it was patent that in law sub-tenancy could not exist. The argument was that sub-tenancies could only be created in respect of an entire tenement As at present advised, I am not aware that such is the law but I do not find it necessary to decide that question at this stage. Mr. Vyas further submitted that the plea of sub-tenancy was not raised by Zainullah in his written statement. It was, therefore, not permissible for the present defendants to raise such a plea in their written statement. The submission was that legal representatives of Zainullah could not raise this new plea by their written statement. Now, it is quite patent that the declaration, the ejectment and the monetary claim for which decree was claimed in the suit were personal reliefs claimed against the present defendants. It is true that these defendants have been added in the suit in consequence of the death of Zainullah and as his heirs and legal representatives. Even so, it is not true that the reliefs claimed against them are only in the character of their being legal representatives. It requires to be emphases and repeated that all the reliefs claimed in the suit are claimed personally as against these defendants. I have no doubt that these defendants were entitled to raise by their written statement pleas contrary to and inconsistent with the case made by Zainullah in his written statement. It is well-established law that defendants who are brought on the record as legal representatives of one of the defendants before any decree is passed in the suit must have a right to raise such pleas as they desire in defence to the reliefs claimed against them The decree claimed against them must be personal. Possibly, where decree is not claimed against them personally and relief can only be granted to the extent of the estate come to their hands, there can be an argument that inconsistent defence may not be allowed to be raised. However, of this also I am not quite sure.

[The rest of the judgment is not material to this report].