Gurdeep Singh & Anr. v. Bachittar Singh alias Fazuir Singh alias Faquiria & Anr.

Mr. Sandeep Jain, Advocate, for the respondents. NAWAB SINGH J.(ORAL) Challenge herein is to the order dated November 28th, 2009 (Annexure P-5) passed by the Additional District Judge, Nawashahar, whereby, application filed by Gurdeep Singh-petitioner for permitting him to file written-statement during the pendency of appeal, was dismissed.

2. On January 31st, 1998 a civil suit titled Bachittar Singh alias Faquir Singh alias Faquiria was filed in the Court of Civil Judge (Senior Division), Nawashahar. Swaran Singh-defendant No.2 filed written-statement. During pendency of the suit, he died on April 11st, 1999. Gurdeep Singh and his mother Kulwinder Kaur-petitioners filed application for bringing them on record as legal representatives of Swaran Singh on the basis of a Will executed by him in their favour. The application was allowed. The suit was contested. It was decreed by judgment and decree dated January 9th, 2007 passed by Civil Judge (Senior Division), Nawashahar. Petitioners and Balihar Singh father and husband respectively of the petitioners preferred an appeal before the Additional District Judge, Nawashahr. During the pendency of said appeal, an application for allowing Gurdeep Singh to file fresh written-statement was filed which was dismissed by the impugned order.

3. Learned counsel for the petitioner has contended that since Gurdeep Singh became major on January 2nd, 2009 and he inherited the estate of Swaran Singh on the basis of Will executed by him in his favour, he had right to file a separate written-statement in the suit. To support the contention, reliance has been placed on (i) Sumtibai & others vs. Paras Finance Co. 2007(4)RCR(Civil) SC 524(ii) Kameshwari Devi @ Kaleshwari Devi vs. Barhani & others 1997(3) RCR (Civil) SC 178; (iii) Jagdish Chander Chatterjee vs. Shri Sri Kishan 1972 RCR (Rent) SC 675, (iv) Rajinder Kumar vs. Sanatam Dharam Mahabir Dal 1999(1) RCR (Civil) Pb. & Hr. 713.

4. On the other hand, learned counsel for the respondents has submitted that the petitioner and his mother were brought on record as legal representatives of Swaran Singh on May 7th, 2000 and prior thereto, Swaran Singh had filed the written statement. Kulwinder Kaur on her behalf and on behalf of her son never opted to file written statement nor moved any application in that respect. Since the written statement was already filed by Swaran Singh, petitioner had no right to file fresh written-statement as he had only stepped into the shoes of Swaran Singh and could not agitate a new ground in the proceedings.

5. The point involved in this revision petition is as to whether Gurdeep Singh's interest was properly safeguarded by his guardian who is none else than his mother Kulwinder Kaur-petitioner No.2 after his stepping into the shoes of Swaran Singh in the year 1999 and could he be permitted to file Written-statement during the pendency of the appeal to raise a plea that he had inherited the property of Swaran Singh on the basis of the Will which he could not take earlier because he was minor ?

6. The petitioners were brought on record as legal representatives of Swaran Singh on May 7th, 2000. They never raised plea to file separate written-statement notwithstanding that they contested the suit for a long period of seven years. It was for the first time in the year 2009 during the pendency of the appeal, an application was moved by Gurdeep Singh seeking permission to file written statement on the ground that he had inherited the property owned and possessed by Swaran Singh on the basis of Will executed by him in his favour and in favour of his mother-Kulwinder Kaur in the year 1998 and he became major in 2009.

7. It is not the case of the petitioner that his interest was not safeguarded by his guardian, that is, the mother-petitioner No.2. So, in the absence of the same, he cannot be permitted to file additional Written-statement. So far as the plea which he wanted to raise by filing the additional Written-statement that he has inherited the property of Swaran Singh by way of a Will executed by Swaran Singh in his favour is to be decided separately and not in the present suit.

8. It is settled law that the legal representatives cannot take a hostile stand to that of the deceased-defendant. It is the rights and liabilities of the deceased-defendant which have to be considered and not those of the legal representatives themselves. All that the legal representatives can, therefore, do, is to take up the suit at the stage at which it was left when the original defendant died and to continue it. It is not open to them to assert their individual right or hostile title to their suit. They cannot take up a plea contrary to the one taken up by the deceased-defendant. Accordingly, petitioners are not entitled to file independent Written-statement as of right being the legal representatives of the deceased-defendant.

9. The authorities relied upon by learned counsel for the parties have been perused.

10. In Sumti Bai's case (supra), a suit was filed against Kapoor Chand for specific performance of a contract for sale. During the pendency of the suit, Kapoor Chand died. His legal representatives, that is, the sons were allowed to file Written- statement primarily on the ground that sons of Kapoor Chand were also co-owners of the property in dispute.

11. In Kameshwari Devi alias Kaleshwari Devi's case (supra), it was held that where the minor's interest was properly safeguarded by appointment of Court guardian in a joint claim contested by other person having same interest in the suit and the Court went into the question involved in accordance with law, even if the Court guardian had not filed any separate written- statement, it makes little difference. The decree would bind the minor even after majority as res-judicata.

12. In Jagdish Chander Chatterjee's case (supra), the observation was that the heir and legal representatives could urge all contentions which the deceased tenant could have urged except only those which were personal to the deceased.

13. Rajinder Kumar's case (supra), is an authority to the effect that decree in the dispute qua property of Joint Hindu Family will bind its minor members as well.

14. In view of the observation made here-in-above, the aforesaid judgments are clearly distinguishable from the facts of the case in hand and as such are of no help to the petitioner.

15. Above being the factual and legal position, in opinion of this Court, the First Appellate Court has not committed any irregularity or illegality while dismissing the application filed by the petitioner. Accordingly, this civil revision petition being devoid of merit is hereby dismissed with no order as to costs. (NAWAB SINGH) JUDGE

8.1.2010. SN