Legal representatives of a deceased defendant can only take up defence appropriate to their character as legal representatives and cannot take up new and inconsistent pleas or pleas contrary to the one taken by the deceased.

This is plaintiff's revision. Plaintiff filed a suit for the recovery of mortgage money against Ganpatrao defendant. Ganpatrao filed written statement on 28-10-1950, wherein he admitted the claim except for compound interest and costs. During the pendency of the suit Ganpatrao died. His legal representatives Bhalchandrarao, Madhavrao and Sadashivrao were brought on the record. They filed written statements on 10-5-1951 and took several pleas. Plaintiff filed an application dated 24-5-51 and objected to some of the pleas taken by the legal representatives. This objection was overruled by the trial court. Hence the plaintiff has filed this revision.

2. The trial court in dismissing the application of the plaintiff has made the following observations :

"Vakil vadine - AIR 1924 Mad 245; - AIR 1921 Cal 343 ityadi ka hawala deeya hai, jinme karar deeya hai ki: 'Legal representatives cannot plead contrary to what deceased has pleaded'. Kayam mukaman is mamle me koi bat 'contrary plead' nahi keeya hai balki sabika jabab dave ke alawa jaweed majeed ujarat kiye hai jo sabika daweke 'contrary' nahi hai. Pus najayaj gair mutaalik hai, aur darkhwast na manjoor kee jati hai."

Application of the plaintiff dated 24-5-51 states as follows :

"Kanoon kayam mukaman pratiwadi aisi koi jabab dehi nahi kar sakte hai ki jo mutwafi pratiwadi ne na kee ho.

Pus aise kul jadeed ujrat kayam mukaman namanjoor kiye jawe, wa prakaran ko wajaye tankeehat waramdagi ke karwai us stage se chalu kee jawe kee gis stage par mutwafi pratiwadi ke intakal ke wakta thi."

Before proceeding to determine what pleas can be taken by the legal representatives of the deceased in this case, it is necessary to review the position of law on the subject. Order 22 Rule 4, Civil Procedure Code runs as follows :

"(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 this character as legal representative of the deceased defendant............"

It is clear from sub-r. 2 of R. 4, that a legal representative can make only such defence as is appropriate to his character as legal representative. A legal representative must continue the litigation on the cause of action sued upon and cannot set up a new and individual right. He can take up any plea which may be appropriate to his character as legal representative. But he cannot take up a new and inconsistent plea or a plea contrary to the one taken by the deceased. In - 'Ghulli v. Sawan', AIR 1924 Lah 45, their Lordships of the Lahore High Court observed as follows :

"When a party to a suit dies, a legal representative is appointed, merely in order that, the suit might proceed, and a decision be arrived at. It is the rights and disabilities that have to be considered and the mere fact that Gulli could not have brought a suit to set aside these alienations on the ground of limitation is not, in our opinion, sufficient to render the suit by Nigahia liable to dismissal."

In - 'Thambatti v. Sankara Menon', AIR 1924 Mad 245 their Lordships of the Madras High Court observed as follows :

"We are not able to understand how the present legal representative of the third plaintiff has any different legal character from the third plaintiff himself or any, which would enable him to abandon the third plaintiff's contentions in the present proceedings, with which alone we are concerned."

In - 'Kameshwar Singh v. Rajbansi Singh', AIR 1943 Pat 433, Chatterji, J., made the following observations.

"The widow has been impleaded in this appeal as the legal representative of her deceased husband, and as such she can raise only such objections as could have been taken by her hus