IMPORTANT POINT
A suit for declaration that documents executed by donor or assignor are not valid or are vitiated by undue influence, fraud or coercion can be filed by donor or assignor.

K.T. Sankaran, J.—Abdul Razak Kunju, the father of the petitioner herein, filed O S No. 561 of 1997 on the file of the Court of the Munsiff of Kayamkulam, for a declaration that the documents executed by him do not bind on him and the properties and that they are null and void and also to set aside and cancel the documents. Abdul Razak Kunju was represented by his next friend and daughter Rasheeda, the petitioner herein. The defendants in the suit are the son, daughter and wife of Abdul Razak Kunju. Abdul Razak Kunju died during the pendency of the suit IA No. 1075 of 1998 was filed by the petitioner to implead four other persons as the legal representatives of the deceased plaintiff. The petitioner also filed I.A.No.

1076 of 1998 to implead her as the second plaintiff. The court below dismissed I.A.No.1076 of 1998 by the order dated 28.2.2001 and on that date itself, dismissed the suit as abated. This Revision is filed by the petitioner challenging the judgment in the suit. The order in I.A.No.1076 of 1998 is not challenged in the Revision. The judgment passed by the court below reads as follows:

“Plaintiff is no more. Petition I.A. 1076/98 dismissed. Suit abates. No costs:

2. The records of the case were called for. From the records, it is seen that I.A.No.1076 of 1998 was dismissed by the following order:

“This is an application by the next friend of the deceased plaintiff herein, to implead herself as additional plaintiff and to prosecute the suit. Heard both sides. The petitioner has instituted this suit as the next friend of the plaintiff for declaration. However there is no averment that the original plaintiff had any legal disability. According to the Petitioner the original plaintiff due to old age and advanced stage of Cancer was unable to understand things in the proper Perspective and so the suit was filed by her as next friend

At the very outset it is to be stated that the original plaintiff appeared before this Court in person on 24.1.98 and submitted that this suit is instituted without his knowledge and consent and that he does not want to proceed with the suit. The duty of a next friend is to represent the plaintiff who is suffering from any legal disability and the locus standi of the next friend ceases when the legal disability ceases or when the original plaintiff dies. The next friend cannot subrogate to the Position of the original plaintiff. The relief sought for by the original plaintiff in this suit is a declaration of his rights over the plaint schedule property which is a right in personam and with the demise of the original plaintiff such rights ceases to exist and consequently nothing survives for decision and the next friend has no locus standi to get herself impleaded and prosecute the suit.

Hence this application is dismissed.”

On the date on which I.A.No.1076 of 1998 was dismissed, I.A.No.1075 of 1998 was also dismissed on the ground that I.A.No.1076 of 1998 was dismissed. As stated earlier, on the same date, the suit was also dismissed on the ground that I.A.No.1076 of 1998 was dismissed.

3. The contention of the petitioner is that there is no abatement. The cause of action survives and the Petitioner having filed an application for impleading, the court below could not have dismissed the suit on the ground of abatement. It is submitted that the judgment of the court below is illegal and unsustainable and therefore, it can be interfered within the exercise of the jurisdiction under Section 115 of the Code of Civil Procedure. The learned counsel for the petitioner also submitted that the power under Article 227 of the Constitution of India can also be invoked to set right the proceedings and to see that the suit is disposed of in accordance with law. The applications for impleading were filed within time as stipulated under Article 120 of the Limitation Act. The Court below dismissed I.A.No.1076 of 1998 on the following grounds: (1) The plaintiff (Abdul Razak Kunju) appeared before