A transferee during the lifetime of the deceased plaintiff is not a legal representative and cannot be substituted under Order XXII, Rule 3, C.P.C.

M.Y.Eqbal, J.

1. This Civil Revision application, at the instance of Defendants 1 and 5, is directed against the order dated 5.3.1997 passed by the Subordinate Judge I, Samastipur, in partition suit No. 37 of 1992, by which prayer made by Opp. party No. 1 (Smt. Laro Devi) to be added and substituted as plaintiff in the suit has been allowed.

2. The sole original plaintiff Smt. Dayabanti Devi filed the aforesaid suit for partition of her share to the extent of 5.00 annas in the suit properties left behind by her husband Jeetan Mahto, in the said suit prayer was also made to a declaration that the order of Assistant Consolidation Officer dated 1.7.1988 was not binding on it. The case of the deceased plaintiff was that one Nirdhan Mahto common ancestor died having behind his two sons, namely, Jeetan Mahto and Chhatri Mahto. Chatri Mahto died issueless Jeetan Mahto died on 10.1.1958 leaving behind his widow, the plaintiff and two sons, namely defendant Nos. 1 and 2 and one daughter (defendant No. 4). The plaintiff, therefore, claimed-5.00 annas share in the suit property left by her husband and further claimed that her two sons, defendant Nos. 1 and 2 have-5.00 annas share in the property. The plaintiffs further case was that her two sons, in order to deprive her from the property got their names recorded in respect of the property. Defendants-petitioners contested the suit by filing written statement stating, inter, alia, that Jeetan Mahto died in the year 1953 before coming into force of the Hindu Succession Act and as such the plaintiff had no claim or share in the property left by her husband it was further stated that Jeetan Mahto during his life time partitioned the suit property and gave the property to his two sons. During the pendency of the suit, the sole plaintiff Dayabanti Devi died on 4.12.1996.After hearing the death, Smt. Laro Devi, wife of defendant No. 2 filed an application under Order 22, Rule 3, C.P.C. for her substitution in place of the deceased plaintiff on the ground that Smt. Dayabanti Devi had executed a deed of gift on 3.12.1994 in respect of her share in the property in her favour and after the said gift she came in possession of the same. She, therefore, prayed to be substituted as the plaintiff and to prosecute the suit. The said application was opposed by the defendant petitioners on the group, inter alia, that she is not the legal representative of the original plaintiff and therefore, she could not be allowed to be substituted in her place. The leaned Court below after hearing the parties allowed the prayer of opp. Party No. 1 for being substituted as plaintiff in place of the original sole plaintiff.

3. I have heard learned Counsel appearing on behalf of the parties. The learned Counsel for the petitioners as sailed the impugned order as being illegal and wholly without jurisdiction for the reason that the application, so allowed, was not maintainable under the provisions of Order XXII, Rule 3, C.P.C. learned Counsel further submitted that originally the suit was filed by the deceased plaintiff for partition and possession, but by substituting Opp. Party No. 1 the suit will become one for title and possession. Learned Counsel then submitted that Opposite party No. 1 who is a stranger to the family cannot be substituted as plaintiff in place of the deceased-plaintiff. Learned Counsel then submitted that the transferee during the life time of deceased plaintiff cannot be a legal representative and is not entitled to submission.

4. On the other hand learned Counsel appearing on behalf of Opposite party No. 1 submitted that by reason of deed of gift executed by the deceased plaintiff in favour of assigment and, therefore, the Court below has rightly held that she being the legal representative is entitled for substitution.

5. Before appreciating the rival contention of the parties. It would be useful to look at the relevant provisions of the Civil Procedure Code. Order XII, Rule 1 of the Code