When a Deceased Plaintiff's Heirs Seek to Litigate on a Will in a Pending Property Suit

A recurring dilemma in civil litigation arises when the original plaintiff dies while a suit concerning immovable property is still pending. The legal representatives (LRs) step into the shoes of the deceased and continue the suit. But what happens when those same LRs want to fight the suit not merely as successors of the deceased plaintiff, but on the strength of a will executed in their favour — asserting an individual, personal right over the very same property?

This question — whether a legal representative who has stepped into the shoes of the deceased plaintiff can claim an individual right in the suit based on a will — has been answered by courts with an important procedural distinction: continuing the suit and setting up an independent title are two separate capacities, and the law treats them differently.

The General Rule: Legal Representatives Step Into the Shoes of the Deceased

The starting principle is well settled. A legal representative substituted in place of a deceased plaintiff or defendant merely continues the litigation from the stage the deceased left it. The LRs can urge all contentions which the deceased could have urged, except only those which were personal to the deceased1995 0 Supreme(SC) 619.

The width of the term legal representative under Section 2(11) of the Code of Civil Procedure, 1908 is broad — it includes heirs, executors, administrators, and even persons with a vested interest under a will 1989 0 Supreme(SC) 279. In fact, courts have held that a legatee under a will may be treated as a legal representative for the purpose of continuing litigation. In one case, a substituted plaintiff claiming rights stemming on the will was permitted to pursue the suit by stepping into the shoes of the deceased plaintiff, since an executor or legatee derives authority from the will itself upon the testator's death, not from probate 2024 0 Supreme(Ori) 532.

However, this representative capacity carries a critical limitation: the LRs are bound by the pleadings of the deceased. Courts have repeatedly held that a legal representative substituted under Order XXII Rule 4(2) CPC cannot file an additional written statement taking a contradictory stand to the deceased-defendant's previous pleadings, and any independent stand requires a formal application for impleadment as a party 2024 Supreme(Online)(ORI) 819. As one judgment put it, the LRs stand in the shoes of the deceased defendant and must accept their position adopted by their predecessor2024 0 Supreme(Kar) 639.

The Core Answer: Independent Title Under a Will Requires Impleadment in Personal Capacity

The answer to the central question is a qualified no — not in the representative capacity alone. A legal representative cannot, while remaining merely an LR, set up a hostile or independent title based on a will in respect of the same suit property. The consistent judicial position is:

• If the legal representative has any independent right, title or interest in the property, he or she has to get himself/herself impleaded in the suit in personal capacity, in which event he or she may set up that independent right, resist the claim, or challenge the decree 1995 0 Supreme(SC) 619 and 2024 Supreme(Online)(ORI) 819.
• Significantly, courts have recognised that this does not force the LRs to file a separate suit — there is no objection to the Court impleading them not merely as legal representatives of the deceased but also in their personal capacity, avoiding thereby a separate suit for a decision on title1995 0 Supreme(SC) 619.

Thus, the remedy is procedural, not substantive: the LR may claim under the will, but only after being clothed with the proper capacity.

Supporting Procedural Framework Under Order 22

The mechanics are drawn from Order 22 of the CPC:

1. Order 22 Rule 3 governs death of a plaintiff: where the right to sue survives, the LRs must be brought on record 1986 0 Supreme(Bom) 134.
2. Order 22 Rule 9 allows setting aside abatement; courts have emphasised that procedural rules should serve the cause of substantial justice and avoid multiplicity of proceedings2023 0 Supreme(Mad) 3017.
3. Order 22 Rule 5 confers only a limited right for continuation of proceedings — the enquiry there determines who is entitled to prosecute the suit as an LR, and nothing more 2022 0 Supreme(Chh) 569.

This last point is crucial: an enquiry under Order 22 Rule 5 merely permits the claimant to continue the suit as a legal representative. It does not decide — and cannot decide — the claimant's individual title based on a will. One trial court expressly permitted plaintiffs to continue the suit as LRs but recorded that their rights and title on the basis of will over the property cannot be decided in this suit2019 0 Supreme(MP) 155, illustrating the limits of a representative adjudication.

When Can a Suit Continue Based on Rights That Devolve?

There is an important nuance. Where the deceased plaintiff was suing to establish his right to property in his own right and not by virtue of his office, the cause of action survives and the legal representative may continue the suit in his own name seeking a derived or devolved interest2017 0 Supreme(Bom) 2132.

Further, Section 306 of the Indian Succession Act, 1925 provides that all demands and all rights to prosecute or defend any action existing in favour of a person at the time of his death survive to his executors or administrators — except causes of action for defamation, assault, or other personal injuries not causing the death of the party, and cases where relief would be nugatory after death 2006 0 Supreme(MP) 1179. Courts have extended this principle to legal representatives generally, holding that such representatives cannot in law be in a better or worse position than executors and administrators2016 0 Supreme(Pat) 235.

So, if the will merely channels the deceased's own claim to the LRs — i.e., the LRs continue the same cause of action as legatees — courts have generally permitted it. But if the LR seeks to plead a case adverse to or different from the deceased's case, that is a fresh, individual claim requiring proper impleadment.

The Consequence of Ignoring the Procedure

Courts have struck down attempts to smuggle in independent claims through the LR route:

• The Madhya Pradesh High Court (Full Bench) in Bhagwati Bai v. Bablu (AIR 2007 MP 38) clarified which claims survive and which abate 2014 0 Supreme(All) 1060.
• Where LRs filed fresh, conflicting written statements without seeking impleadment, the trial court's acceptance of such pleadings was set aside2024 Supreme(Online)(ORI) 819.
• In one notable decision, a claimant who had not impleaded himself as successor-in-interest in a prior partition suit was told that documents executed in his favour would not bestow any right on the plaintiff which even B.R. Luthra did not have, and the plaint was liable to be rejected 2021 0 Supreme(Del) 121.

Practical Steps for Legal Representatives Claiming Under a Will

If you are an LR wishing to assert rights under a will in a pending suit involving the same property, the generally recommended course is:

1. File an application to be impleaded in your personal capacity, in addition to (or instead of) substitution as an LR 1995 0 Supreme(SC) 619.
2. Seek amendment of pleadings or file separate pleadings setting out your independent right, title, and interest under the will 2024 Supreme(Online)(ORI) 819.
3. Preserve and prove the will — remember that no declaration of title based on a will can be granted without the validity of the will having been established, and wills may face scrutiny for suspicious circumstances 2021 0 Supreme(Del) 121 and 2019 0 Supreme(P&H) 534.
4. If impleadment is refused, consider a separate suit for declaration of title under the will 1995 0 Supreme(SC) 619.
5. Mind limitations — under the Legal Representatives Suits Act, 1855, actions for wrongs committed in the deceased's lifetime carry temporal restrictions for estate-loss claims 2006 0 Supreme(MP) 1179.

Key Takeaways

• A legal representative can continue the deceased's suit and press all contentions available to the deceased, including devolved rights flowing through a will 2024 0 Supreme(Ori) 532.
• A legal representative cannot set up an independent, individual, or hostile title based on a will while remaining only in a representative capacity 2024 0 Supreme(Kar) 639.
• The correct route is impleadment in personal capacity alongside the representative role — a course courts may allow to avoid multiplicity 1995 0 Supreme(SC) 619.
• Provisions like Section 306 of the Indian Succession Act, 1925 and Order 22 CPC govern survival and continuation of suits, but they do not license fresh, contradictory claims by LRs 2006 0 Supreme(MP) 1179 and 2022 0 Supreme(Chh) 569.

In short, the law permits an LR to fight the deceased's battle, but if the LR wants to fight a different battle — one founded on a will in the LR's own favour — the court must first be approached to recognise the LR as a party in that personal capacity. This article is intended as general legal information, and the applicability of these principles may vary with the facts of each case.