A legal representative substituted as plaintiff within the prescribed period of limitation can continue the suit even if another legal representative is not joined as a plaintiff or as a formal defendant, especially when the latter has disclaimed all interest in the suit property.

JUDGMENT - 1. The applicant is the defendant against whom one Doma had filed a suit for specific performance of an agreement of sale entered into by the applicant with him. The applicant, on 7-5-1965, entered into an agreement to sell a house No. 1288/1 + 4 in Circle No. 4/6 at Nagpur to the original plaintiff Doma for a sum of Rs. 10750, and accordingly, the applicant-defendant had executed an Isarchitti on the same date. The Isarchitti recites that the applicant had received a sum of Rs. 500 as part payment of the purchase price of Rs. 10750, and that a sale-deed was to be executed within 4 months from the date of the agreement. The original plaintiff Doma, alleging that the defendant had failed to execute a sale-deed as agreed, filed a suit on 28-9-1965 asking for specific performance of the agreement dated 7-5-1965. Unfortunately the original plaintiff Doma died on the same date after the suit was filed by him, Doma died leaving behind his widow Gaurabai and his married daughter Parwatibai, who is the opponent in this revision application.

2. After the suit was filed on 23-9-1965, it was fixed for further orders on 28-9-1965. On this date Parwatibai filed an application under Order 22, Rule 3, Code of Civil Procedure stating that she was the sole surviving heir and legal representative of her deceased father, the original plaintiff, and that she was entitled to be made a party in place of the deceased plaintiff. By an order of the same date this application was allowed, and accordingly, the name of Parwatibai was substituted in place of the original plaintiff,

3. The defendant-applicant filed a written statement in reply to the allegations in the plaint. The suit was thereafter adjourned from time to time and issues were framed on 25-4-1966. The suit was posted for evidence on 25-8-1966. It appears that on 24-8-1966 an application on behalf of the present applicant was filed under Order 14, Rule 1, Code of Civil Procedure, alleging that the deceased Doma had also left behind his widow Gaurabai, and as Gaurabai was not brought on record in any capacity, Parwatibai alone was not competent to maintain the suit. This objection was also taken in the written statement and the defendant, therefore, wanted the issue regarding maintainability of the suit by Parwatibai alone to be tried as a preliminary issue.

4. In reply to the application by the defendant, Parwatibai stated that she was the only child of the deceased Doma for whom he intended to purchase the house in dispute and that the original plaintiff had disposed of his self-acquired property and raised money for purchasing the disputed house. She further stated that the widow Gaurabai did not want to claim any share or interest in the property in dispute. On 18-10-1966, Gaurabai filed an affidavit in which she disclaimed all interest in the subject matter o£ the suit. In the affidavit she states;

"That the deceased husband of the deponent had made a contract for the purchase of a house at Nagpur having raised the money for the purchase by selling out all his property at Dongargarh for our only daughter Shrimati Parwatibai, the plaintiff in the case, which house is the subject matter of the suit. That I have relinquished all my claims and interest in the assets or property left by my deceased husband and I do not want to claim any sort of the share therein and I have none in them."

After this affidavit was filed by Gaurabai, the following issue, which is issue No. 9, was taken up as a preliminary issue:

"9. Does the defendant prove, that the plaintiff the daughter of late Doma has no locus standi to continue this suit as she is not the only heir of Doma, as Domas widow is his other heir?"

The learned Judge after hearing arguments on this issue found in favour of the plaintiff and held that the present legal representative, who was the daughter of the original plaintiff Doma, could continue the suit The learned Judge found that the inter se dispute between the legal representative

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