IMPORTANT POINTS
In terms of sub-rule 2 referred to above, the legal heir of a deceased defendant who is impleaded in the suit is entitled to take up defence in consonance to his character as a legal representative of the deceased defendant. In other words, the plea that a legal representative is entitled to take, when he is impleaded in his capacity as a legal representative, can only be in tune with the contentions/the rights of his predecessor. The legal representatives are not entitled to have a plea contrary to and withdrawing the contention taken by the predecessor. Therefore, the prayer for deletion of the plea regarding the right claimed over the property in question as was taken by the predecessor viz. the original first defendant, was rightly turned down by the court below.

JUDGMENT :

SATHISH NINAN, J.

1. The application seeking amendment of the written statement was dismissed by the trial court. The said order is under challenge in this original petition.

2. Heard Sri. K.S. Hariharaputhran, the learned counsel for the petitioners.

3. The suit is for declaration of title, recovery of possession, mandatory injunction and allied reliefs. The suit was originally filed against two defendants, the first defendant being the father of the second defendant. Defendants 1 and 2 filed a joint written statement. During the pendency of the suit, the first defendant expired. The other legal heirs of the first defendant were impleaded as additional defendants.

4. The second defendant along with the additional defendants filed I.A. 402/2019 under Order VI Rule 17 of the Code of Civil Procedure seeking “C.R.” amendment of the written statement that was jointly filed by the original defendants 1 and 2. In the original written statement it was stated that the first defendant had obtained 10 cents of property as kudikidappu. As per the amendment application, the said statement was sought to be deleted and an independent title of additional defendants 8 and 12, dehors the right claimed by the first defendant, was sought to be set up. The trial court as per impugned order dismissed the application, rightly.

5. Sub-rules 1 and 2 of order XXII Rule 4 reads thus:-

“4. Procedure in case of death of one of several defendants or of sole defendant - (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.”

6. In terms of sub-rule 2 referred to above, the legal heir of a deceased defendant who is impleaded in the suit is entitled to take up defence in consonance to his character as a legal representative of the deceased defendant. In other words, the plea that a legal representative is entitled to take, when he is impleaded in his capacity as a legal representative, can only be in tune with the contentions/the rights of his predecessor. The legal representatives are not entitled to have a plea contrary to and withdrawing the contention taken by the predecessor. Therefore, the prayer for deletion of the plea regarding the right claimed over the property in question as was taken by the predecessor viz. the original first defendant, was rightly turned down by the court below.

7. A legal representative is not entitled to put forward his independent rights unless he is impleaded/got himself impleaded in his independent, personal right. Kunjan vs. Kochuntan, 1963 KLT 500, Krishnan Sathyadas vs. Lakshmikutty Amma, 1990 (2) KLT 795 and Vidyawati vs. Man Mohan and Others, AIR 1995 SC 1653. The additional defendants were impleaded not in their individual capacity but as legal representatives of the original first defendant. It being so, they are not entitled to foist their independent claims over the property. The trial court has rightly refused the amendment.

8. The order impugned suffers from no infirmity. The original petition is accordingly dismissed.