Suit filed against dead person could be amended by substituting LRs.

The nth defendant in O.S.No.1170 of 1945 on the file of the District Munsif’s Court, Kozhikode, out of which this second appeal arises is the appellant. The suit was for setting aside the decree in O.S.No.1150 of 1944 on the ground that the Court had no jurisdiction to pass the same and hence the delivery that followed it is void and inoperative. Both the lower Courts have decreed the suit. The short, facts are these:-

The first defendant Mana had leased out the plaint property on 22nd May, 1920, to one Ukkappan Nair, who was the karnavan of the plaintiffs and defendants 2 to 6 on behalf of their tarwad and to Cheria Chandu the father of the defendants 7 to 10 the two named individuals being joint lessees. As rent was in arrears O.S.No.1150 of 1944 was brought for recovery of possession with arrears of rent from 1936-37 to 1943-44. To that suit the two defendants were the lessees Ukkappan Nair and Cheria Chandu but after summons was taken out it was discovered that both the defendants were dead. Therefore by I.A.4233 of 1944 the legal representatives of the two defendants were brought on record as defendants 2 to 6 and 7 to 10 respectively, who contested the suit on the ground that part of rent had been paid, that what was paid towards the revenue had been credited towards the rent due, that the price of paddy claimed was excessive and that the plaintiff was not entitled to evict them. Despite these contentions the suit was decreed and in execution of the decree the first defendant herein recovered possession of the property and thereafter demised it to the nth defendant who was put in possession.

The allegations in the present suit are, that the decree in O.S.No.1150 of 1944 was void and did not affect the suit property on the ground that both the lessees who were impleaded in that suit were dead at the time the suit was filed and despite the knowledge of that fact a false affidavit has been filed in support of the application for bringing on record the legal representatives of the two deceased and it was only on the strength of the averments contained therein that the present defendants 2 to 6 and 7 to 10 were added as the legal representatives of the original defendants. It was therefore alleged that the Court had no jurisdiction to bring on record the legal representatives of persons who had died before the institution of the suit for the reason that a plaint filed against a dead person cannot be considered to be in existence at all and the whole proceedings were ab initio illegal and void. The plaintiffs also contended that the defendants 2 to 10 were guilty of fraud and negligence in the conduct of the suit in not raising proper pleas which if raised would have non-suited the plaintiff in O.S.No.1150 of 1944. The present plaintiffs being the other members of the tarwad of defendants 2 to 6 and as Ukkappan Nair was a lessee on behalf of the tarwad are not bound by the decree in O.S. No.1150 of 1944. As stated already the lower Courts have found that the entire proceedings in O.S.No.1150 of 1944 were void from the very inception and have decreed the suit and hence the present second appeal.

That Ukkappan Nair and Cheria Chandu were not alive when the plaint in O.S.No.1150 of 1944 was filed in Court admits of no doubt and there is no dispute whatever that in ignorance of that fact and on the assumption that they were alive on the date of the suit the District Munsif by I.A.No.4233 of 1944 ordered their legal representatives to be brought on record. What has now to be considered is how far that procedure is justified in law. There is also no contention that if a suit for recovery of property with arrears of rent were to be filed on the date when the application to bring on record the legal representatives was filed the proper persons against whom such a suit ought to be filed are the proposed legal representatives and that the relief claimed against such persons would not be barred. In these circumstances the point for