A party in a partition suit retains the right to transpose as plaintiff despite another party's death, provided that formal abatement has not occurred.

O R D E R

O.S.No.18 of 2012 is a suit for partition on the basis of a partition deed. The suit was filed by one Dr.Girija. She had impleaded all the persons having interest in the property to the said suit. Unfortunately, Dr.Girija passed away. The brother of Dr.Girija, the fourth defendant, filed an application to transpose himself as the plaintiff in the suit. The said application was allowed, against which the present revision.

2. The argument of Mr.K.Venkatasubban is that on the expiry of

150 days, the suit automatically abates and does not require an order of the Court. He would therefore submit that the fourth defendant could not file a transpose application.

3. The proposition of law does not require an authority. The Court only records the abatement that takes place in a suit if steps have not been taken after 150 days from the date of death of a party. However, this does not prevent a party from filing an application to transpose. In a suit for partition, it has been oft-repeated that the plaintiff is interchangeable with the defendant and vice versa. The idea of such a proposition is, because in every case of partition, the Court while passing a preliminary decree, declares the right of respective parties and the defendant is also entitled to pay a Court fee and get a declaration of his share. In the facts of the present case, the fourth defendant has given an undertaking before learned Principal Judge that he will pay the Court fee insofar his share is concerned. There is no conflict of interest between the plaintiff and the interest of defendants 1 to 4. The case that has been pleaded by the fourth defendant is similar to the case that has been pleaded by the plaintiff. For the mere fact that the legal heirs of the plaintiff are not willing to come on record, the Court need not close its eyes and dismiss the suit recording the abatement. As long as the Court has not recorded the abatement and dismissed the suit, a party to the said proceedings has a right to file an application to transpose.

4. In view of the above discussion, this Civil Revision Petition is dismissed. It is made clear that after transposition, the fourth defendant R.C.Shekar shall take steps for the other defendants, who have expired and also bring on record legal heirs of plaintiff as respondents in suit lest the suit risks of being dismissed for partial partition. No costs.

Consequently, the connected miscellaneous petition is closed.

26.04.2024 Index : Yes/No Neutral Citation : Yes/No gpa To The Principal District Court, Krishnagiri V. LAKSHMINARAYANAN, J.

gpa

26.04.2024