Vijaylaxmi vs Nagappa and Others

K.N. Phaneendra, J.—The mother of the appellant herein by name Smt. Susheelabai filed a suit in OS No. 34/2006 against her sons i.e., defendants 1 to 7 and also purchasers of the suit schedule property from defendant No. 5 who are arrayed as defendant Nos. 8 to 13, for declaration of her title as absolute owner in possession of the suit schedule property and also for perpetual injunction restraining the defendants from interfering with the plaintiffs peaceful possession and enjoyment of the property and also for cancellation of the registered sale deeds executed by defendant No. 5 in the names of defendant Nos. 8 to 13. The appellant is not a party to the said suit.

It is the case of the plaintiff that suit schedule properties were fallen to her share in a partition between herself and her sons'' i.e., defendant Nos. 1 to 7. Therefore, by virtue of partition, she became the absolute owner in possession and enjoyment of the suit schedule properties.

Subsequently, it is alleged that defendant No. 5 executed some sale deeds in respect of the suit schedule properties in favour of defendant Nos. 8 to 13. Therefore, on that cause of action, the plaintiff was forced to file a suit for declaration and other reliefs against the defendants.

It appears, during pendency of the suit, the plaintiff died leaving behind defendant Nos. 1 to 7 and the appellant as her legal heirs. The appellant herein being the daughter of the plaintiff wanted to substitute herself as legal representative of the plaintiff to continue the suit in OS No. 34/2006. In this context, she made an application under Order XXII Rule 3 read with Section 151 of CPC and after contest, the said application came to be dismissed by the Trial Court and also consequently dismissed the suit of the plaintiff. Being aggrieved by the said order, the appellant herein preferred an appeal before the Fast Track Court, Basavakalyan District, Bidar in RA No. 85/2014. The first Appellate Court has also confirmed the order of the Trial Court and consequently dismissed the Regular Appeal.

Though before the first appellate Court, a contention was taken up that the appeal itself was not maintainable, but the suit of the plaintiff was dismissed by the Trial Court. Therefore, entertaining of the Appeal by the first appellate Court was justified.

Now, the question that arise for consideration before this Court is -

(1) Whether the appellant can substitute herself as the legal representative of the deceased plaintiff?

(2) Whether cause of action survives to the appellant in order to continue the suit of her mother?

In order to substitute the legal representatives, there should be survival of the cause of action in favour of the legal representative. As it is noticed, it is a suit filed by the mother of the appellant for declaration of her title and for perpetual injunction. If the appellant is substituted as the legal representative of the plaintiff, she has to fight out the suit against defendant Nos. 1 to 7 on the original cause of action, but that cannot be done because of the simple reason that the original plaintiff claiming herself as absolute owner of the entire properties, sought for declaration of title and perpetual injunction against her own legal representatives i.e., defendant Nos. 1 to 7. Immediately after the death of the plaintiff, including the appellant herein, and the defendant Nos. 1 to 7 have become co-owners of the said properties. Therefore, after the death of the plaintiff, who died intestate, the defendant Nos. 1 to 7 and the appellant are entitled for their share in the property. Therefore, exclusively the appellant cannot continue the suit with respect to the entire properties against the co-owners - defendant Nos. 1 to 7. Therefore, as rightly observed by the Trial Court and the first appellate Court, the appellant cannot succeed in her application to bring herself on record as the legal representative of the deceased. The cause of action does not survive in favour of the appellant exclusively. Therefore, the application filed under Order XXII Rule 3 read with Section 151 of CPC was rightly dismissed by the Trial Court and the same was also confirmed by the first appellate Court, consequently dismissing the suit and the appeal respectively.

Therefore, I do not find any strong reason to entertain this Regular Second Appeal as no Substantial Question of Law is involved. Further, added to that, the first appellate Court itself has categorically granted liberty in favour of the appellant that she can agitate all her rights by filing a suit for partition and separate possession. Therefore, this appeal deserves to be dismissed.

Accordingly, dismissed.