K.T. Sankaran, J.

The question involved in this Writ Petition is whether a defendant who is one of the legal representatives of the deceased plaintiff can be transposed as the additional plaintiff when there is dispute inter se the defendants.

2. The suit was filed by the father of defendants 1 and 2 claiming partition of his one-third share in the plaint schedule property, having an extent of three acres of land. Defendants 3 and 4 are the sons-in-law of the plaintiff. The third defendant is the husband of the second defendant. The fourth defendant is the husband of the first defendant.

3. The plaintiff contended that the possessory mortgage rights in respect of the plaint schedule property belonged to his wife and on her death, the property devolved on the plaintiff and his two children, namely, defendants 1 and 2. The original mortgage was in 1100 ME. The contention of the plaintiff was that the right to redeem the mortgage was barred by limitation and, therefore, the mortgagee had the right to the property. The first defendant contended that while the property was outstanding in the possession of her mother, the mortgagor had executed a gift deed in the year 1966 in favour of the first defendant (writ petitioner). Defendants 1 and 4 contended in their written statement that neither the plaintiff nor defendants 2 and 3 got possession of the property at any point of time. Therefore, the main question to be decided in the suit was whether the gift deed executed by the mortgagor in favour of the first defendant would affect the right of the plaintiff to get a share in the property covered by the gift deed.

4. Defendants 2 and 3 supported the plaintiff. However, they raised a contention that on the eastern side of the plaint schedule property, one acre of land was given possession to them by their mother. They contended that excluding that one acre of land, the rest of the properties are partible and that the plaintiff and defendants 1 and 2 are entitled to one-third share each. Alternatively, the second defendant contended that if the Court finds that the entire plaint schedule property is partible, he is entitled to one-third share thereof. He also paid court fee for separation of his one-third share in the entire extent of the plaint schedule property.

5. It would appear that defendants 1 and 2 had filed separate suits in respect of the claims put forward by them in respect of the property. The argument notes submitted by the respondents would indicate that those suits were dismissed and appeals therefrom were also dismissed. It is also stated that in those suits it was held that the mortgage right belonged to Mariakutty, the mother of defendants 1 and 2.

6. When the plaintiff died, the second defendant filed an application before the trial court to transpose her as additional plaintiff. In the application for transposition, the second defendant contended that the plaintiff had executed a Will in her favour bequeathing the rights of the plaintiff in the property. It is also stated that thus the second defendant is entitled to two-third share in the properties. It is further stated in the affidavit accompanying the application that she wants to get herself transposed after conceding the averments in the plaint. Defendants 1 and 4 filed another application for amendment of the written statement claiming the one- third share of the plaintiff as well on the basis of the Will allegedly executed by him in favour of the second defendant. Defendants 1 and 4 opposed the applications for transposition and amendment of written statement. They contended that the Will allegedly executed by the plaintiff is not genuine. The second defendant did not acquire any rights as per the Will. The Will was fraudulently created by the second defendant and it has no legal validity. They contended that the request for transposition cannot be allowed in the light of the contentions put forward in the written statement of defendants 1 and 4.

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