Legal representatives of a deceased party can contest partition claims based on independent rights acquired prior to the suit.

JUDGMENT

In a suit for partition, one Ulahannan was arrayed as the 17th defendant. Upon his death, the original plaintiff impleaded the present petitioners as additional respondents Nos.19 and 20 (counter-petitioners) in the supplementary preliminary decree proceedings. The petitioners contended that they had purchased plaint item Nos.2 and 3 properties as early as in the year 1980, i.e., prior to the institution of the suit, and therefore sought permission to contest the proceedings in their individual capacity, and not merely as the legal representatives of the deceased 17th defendant. By the order impugned in these proceedings, the learned Principal Munsiff, Kottayam rejected their application.

2. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for additional respondent No.23, who is a legal heir of the original plaintiff.

3. In the impugned order, the learned Munsiff observed that when the preliminary decree was passed on 21.12.1983, it was held that Saraswathiamma, the original plaintiff, was entitled to a 1/48 share in item Nos.2 and 3 properties, and that acceptance of the petitioners’ request would amount to reopening the preliminary decree.

4. However, the learned counsel appearing for the petitioners contended that since they had acquired absolute right over item Nos.2 and 3 properties under registered sale deed No.3069/1980, their rights could not be defeated merely by the passing of a preliminary decree against Ulahannan, who had no right, title, or interest in the said properties. It was further urged that when a partition suit is instituted against a total stranger having no right over the property, the legal heirs of such a person, even if impleaded subsequently, cannot be denied the right to contest the proceedings on the merits of their independent title, if any, by resorting to procedural constraints.

5. During the course of hearing, the learned counsel appearing for additional respondent No.23 submitted that the said respondent is willing to continue her claim to plaint item No.1, instead of what was declared in the preliminary decree.

6. The legal issue arising in the case could also be viewed from another perspective. When the petitioners are impleaded as the legal representatives of Ulahannan, would they not be bound by the decree only to the extent it would have bound Ulahannan had he been alive, and not insofar as it affects their independent rights? In other words, in a suit for partition of immovable property, where the question of absolute title claimed by the petitioners in their individual capacity was never raised or adjudicated, can it be said that the final determination in such a suit would necessarily affect their independent title? This assumes significance because an additionally impleaded legal representative cannot, in law, raise any claim beyond what could have been raised by the predecessor-in-interest.

7. Be that as it may, in view of the factual concession made by the learned counsel for additional respondent No.23, the original petition can be disposed of without entering into a detailed adjudication of these questions.

Therefore, the original petition is disposed of as follows:

The learned Munsiff is directed, as far as possible, to confine the rights of the original plaintiff to plaint item No.1, instead of item Nos.2 and 3, while passing the final decree in the suit or in any supplementary proceedings arising therefrom.

It is further clarified that if the petitioners have any independent right to institute a suit or initiate other proceedings for protection of their individual interests, nothing contained in the impugned order or in this order shall stand in their way.

Sd/-