COMMON ORDER

These Revisions are against the orders passed by the trial Court allowing the I.A.Nos.894 and 895 of 2015, seeking to set aside the abatement of the suit for non substitution of the legal heir of the deceased / plaintiff and under Order XXII Rule 3 read with Section 151 C.P.C to implead the petitioners therein as legal heirs of the deceased / plaintiff in the suit.

2. The brief facts resulting in the filing of the present Revision petitions are as here under:

The plaintiff had originally filed the suit seeking a declaration that the settlement deed executed by the first defendant, his wife in favour of the second defendant, his son, on 28.09.2005 was null and void and for a consequential permanent injunction to restrain the defendants from executing further documents in favour of third parties. It is the case of the plaintiff that he had purchased the suit property on 17.08.1983 and on 11.09.1997, he executed a Will in favour of the first defendant, ie., his wife. The plaintiff had left home and was not there for more than 7 years and presuming that he was not alive, the first defendant claiming to be the owner of the suit property and deriving right, title and interest under the Will dated 11.09.1997, executed by the plaintiff, chose to settle the property on her son, the second defendant. Subsequently, the plaintiff returned home and on coming to know that his wife had executed a settlement deed in favour their son, the plaintiff cancelled the Will executed in favour of his wife on 04.05.2011 and thereafter, filed the suit in O.S.No.118 of 2012 for the reliefs, which have been set out hereinabove.

3. Pending the suit, on 20.11.2012, the plaintiff executed a Will in favour of his daughters, who are the petitioners in I.A.Nos.894 and 895 of 2015, filed to restore the suit, seeking to implead themselves as plaintiffs 2 and 3 and to set aside the abatement. The applications came to be allowed by the trial Court as against which the present revision petitions have been filed.

4. The grounds of challenge to the said orders passed by the trial Court are that the cause of action did not survive the death of the plaintiff to enable the daughters to implead themselves and prosecute the suit; the claim of the daughters is based on an alleged Will, which was executed subsequent to the institution of the suit; the genuineness of the Will relied on by the daughters cannot be gone into in the present suit, as it is entirely a different cause of action and finally that the daughters cannot step into the shoes of the plaintiff and prosecute the suit.

5. I have heard Ms.J.Anandhavalli, learned counsel for the petitioners, Mr.M.Saravanan, learned counsel for the respondents 1 and 2 and Mr.Baskaran, learned Additional Government Pleader appearing for the third respondent, in both the revision petitions. I have also perused the records and the impugned order passed by the trial Court as well as the notes of submissions filed by the learned counsel for the revision petitioners as well as the respondents 1 and 2.

6. The sum and substance of the arguments of the learned counsel for the revision petitioners is that the daughters are seeking to implead themselves claiming under the Will of their father and therefore, the original cause of action in the suit cannot survive to the benefit of the daughters and therefore, they cannot be permitted to be impleaded in the suit. The learned counsel for the petitioners would state that Order IX Rule 9 C.P.C can be invoked only by the plaintiff and admittedly, when the daughters were not even parties to the suit, application invoking Order IX Rule 9 C.P.C was not available in law, he would also contend that Order XXII Rule 9 C.P.C would not also not be available to the daughters, since the wife and sons of the deceased plaintiff were already parties to the suit and therefore, there was no question of any abatement in the first place. Moreover, the learned counsel for the petitioners would contend that s