This petition arises out of an application made, by the legal representative of the deceased plaintiff to amend the plaint as originally filed. The suit was filed by the Rajah of Kalahasti against the defendants on a mortgage executed by him. As the Rajah of Kalahasti before he succeeded to the Zamindari had lent a lakh of rupees to the previous Rajah, on the mortgage of certain villages, he filed a suit in two capacities. He described himself as the 1st plaintiff in his individual capacity and as the 2nd plaintiff in his capacity of the Rajah of Kalahasti. As the transaction according to him took the form of an absolute sale-deed with a promise, to reconvey and as only a sum of Rs. 84,000 out of the consideration was admitted by him, the reliefs he claimed were a decree for redemption, after payment of Rs. 84,000 and for possession, or in the alternative, if the transactions be held to be a sale and not a mortgage, for the recovery of Rs. 2,79,045, or such other sum as may be found by the Court to be due, as unpaid purchase money. Various defences were put in, which it is unnecessary to consider, for the purpose of this petition.
The plaintiff died pending the suit and his successor to the Zamindari applied to be brought on record, as the 3rd plaintiff. He also applied to amend the plaint by making allegations (1) to the effect that there was only a consideration of Rs. 23,400, (2) that in any event the transaction set out in the plaint, even if true, would not bind him as successor to the estate, as the moneys raised thereunder were not utilised for purposes binding on the estate, (3) that the sale alleged in the plaint for Rs. 3,00,000 odd was an improvident transaction, which caused serious loss to the estate and is not binding on him, and (4) that as the original vendee did not perform his undertaking, he is not entitled to remain in possession. The Subordinate Judge allowed the amendment and paragraphs 10 (a), 10(b), 10 (c), and 12 (a) are the amended paragraphs setting forth the contentions of the present Zamindar.
There can be little doubt that under Sect. 4 of the Madras Impartible Estates Act, II of 1904, the present Zamindar is entitled to question the alienations made or debts contracted, by the deceased plaintiff, if the alienations or debts were made or incurred under curcumstances which would not entitle the managing member of a Hindu joint family, not being the father or grand-father of the other coparceners, to make an alienation or incur a debt binding on the shares of the other coparceners, independently of their consent. The only question is whether he can do so in his capacity as the legal representative, of the deceased plaintiff. I am of opinion that the Subordinate Judge was wrong in allowing the amendment, which virtually amounts to the assertion of a title by the legal representative hostile to that person whom he purports to represent, and denying that the transaction entered into by the deceased plaintiff and on the footing of which he sued is binding on him. In cases where there is a conflict of interests between the deceased plaintiff and his legal representative and where the latter claims that he is not bound by the transactions of the deceased plaintiff, I think the proper course is for the legal representative to file a separate suit to enforce his rights, and that it is not open to the legal representative in his capacity, as such, to repudiate the transactions, which have been admitted by the deceased to be valid and on the footing of the validity of which the deceased claimed certain reliefs in the plaint. O. 22, R 3, Civil Procedure Code, enacts that where the right to sue survives, the Court shall, on the application made in that behalf, cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. So that, it is clear from the above rule that all that the legal representative can do is to take up the suit at the stage at which it was left by the deceased plaintiff and to continue the proceedings as legal representative. It is not open to him to assert any individual and hostile rights, which he may have against the deceased plaintiff and those claiming through or under him and to seek to enforce those individual and paramount rights, under the guise of an application to amend the plaint. So far as the amendment of the plaint is concerned it seems to me that the limits of the amendment should be determined by the consideration, whether it would have been granted, if the deceased had made the application. Within those limits, it is of course open to the legal representative to ask for amendment and the Court would, in my opinion, be justified in granting it. But where the amendment sought is one which the deceased himself could not have asked, it seems to me difficult to see how his legal representative could ask for it. It is clear that in the present case it was not open to the deceased Zamindar to question the propriety of his own alienation, or to seek a declaration that the alienations made by him and which in terms are not limited to his own life-interest in the Zamindari are not binding on his successors. It is of course open to the successor of a Zamindar either to affirm an alienation made by him, or to treat it, as inoperative, as being in excess of the powers of disposition vested in him by law. Where the legal representative disaffirms the transaction, as in derogation of his individual right, it is difficult to see how the suit to redeem can be converted to a suit to question the propriety of the alienation, as against the reversioner.
In the latter case, the issues raised and the considerations involved would be wholly foreign to the issues in the suit to redeem. I can find no authority for the proposition that a suit of one nature can be converted into one of another nature, simply because the legal representative has in law the right to repudiate the transactions of the deceased, as not binding on the estate to which he has succeeded.
Turning to the authorities, they seem to be clearly against the contention of the respondent. In Subbaraya Mudali v. Manicka Mudaliar, it was held that the representative of a deceased plaintiff can only prosecute the cause of action, as originally framed and that the defendant can raise no other defence against him, than he could have raised against the deceased plaintiff. In Umrao Begum v. Irshad Hussain(2), the widow of a deceased taluqdar in Oudh claimed the taluq as against the daughter's son of the deceased. Her claim was disallowed as the grandson was held entitled to succeed under the Oudh Estates Act. The widow preferred an appeal to the Privy Council and died pending the appeal. Her daughter was brought on record as her legal representative. Though the suit was confined to the taluq, she claimed to bring into the controversy other property left by the last male holder. Their Lordships of the Privy Council were of opinion that she could not do so, and that the revived appeal should be confined to the questions raised between the original parties to the taluq. Their Lordships observe: “The reasons for the revivor apply only to the taluq; and it would obviously be improper and dangerous to allow Umrao to use the position she has obtained as the substitute of Ahmadi, for the purposes of advancing her personal claims. Whatever claims Umrao has against any part of the estate, she must enforce by a suit on her own behalf.” In Sham Chand Giri v. Bhayaram Panday, it was held that a person who is in the position of a rival claimant, who is desirous of setting up a claim of his own, which is not only dependent upon the claim of the original plaintiff, but is in conflict therewith, cannot do so, as the legal representative of the deceased. In Sarat Chandra Banerjee v. Nani Mohan Banerjee, Harrington, J. held that “the right to sue in O. 22 means the right to bring a suit asserting a right to the same relief, which the deceased plaintiff asserted at the time of his death.” It is argued by Mr. Govindaraghava Aiyar that the powers of amendment under the Code of 1908 are much wider, than those under the Code of 1882 and that the Court should allow an amendment, which would prevent a multiplicity of suits. So far as the power to grant amendment is concerned, it is subject to the rule that you cannot substitute one distinct cause of action for another, or change by means of amendment the subject matter of the suit. In Ma Shwe Mya v. Maung Mo Hnauang(3), their Lordships of the Privy Council observe: “All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but none the less, no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject matter of the suit.” After referring to Sect. 153 of the Code and R. 17 of O. 6, their Lordships state that to allow an amendment, whereby another and independent contract was, set up, when the original contract was negatived would be going outside the provisions of the Code.
Reliance was placed by Mr. Govindaraghava Aiyar on Ball Kissen Lal v. Choudhuri Tapesura Singh where an infant plaintiff sued to set aside a mortgage decree, as not binding on him and it was found that the mortgage was executed for necessity, the Court allowed him to redeem. The learned Judges were of opinion that as all the materials necessary to grant a prayer for redemption were found and as the plaintiff can obtain the relief in a separate suit, “it would manifestly not be in the interest of either party to the litigation to allow the possibility of a fresh suit.” In the present case, the materials necessary to support the claim of the legal representative, to disaffirm the mortgage and sale sued on, would not ordinarily be necessary to be proved on the claim as originally made by the deceased plaintiff and it will be introducing contentions entirely foreign to the original claim to allow the amendment. Skinner v. Naunnital Singh was a case where the plaintiff claimed full proprietory possession, free from all mortgages or other burdens granted by his predecessor. The suit was dismissed by the High Court, which reversed the decision of the Subordinate Judge. Before the Privy Council, a point was taken for the first time that the dismissal was wrong and that in any event “a decree for possession ought to have been passed, conditional on payment of mortgages and charges created by the predecessor in title. Their Lordships of the Privy Council stated that they experienced considerable difficulty in permitting the alternative case raised to be the ground of judgment but observed: “It is only because, in this view, it may be possible, out of a large wreckage of procedure to construct the material for a just decision of the true rights of the parties, and because upon the whole this may be in the parties’ own best interests, that their Lordships refrain simpliciter sustaining the appeals and dismissing the suits”. This is no authority for the proposition that as a general rule a legal representative can be allowed in that capacity to set up his individual rights and disaffirm transactions, on which the deceased based his right to claim the reliefs sought.
The principle that Courts may take notice of events, which have happened, since the institution of the suit and afford relief to the parties, on the basis of the altered conditions referred to, by Mookerjee, J., in Rat Charan v. Biswa Nath has no application to cases like the present, where the death of a. party creates rights on his legal representatives to question the validity of transactions entered into by the deceased. Sangili v. Mookan and Sakhram Mahadev Daye v. Hari Krishna Danji were cases, where a coparcener died pending appeal in a suit for partition and all that was held was that the plaintiff is entitled to a decree for a larger share, as it had increased by the death of a coparcener. In Rustomji v. Sheth Purushotham Das(4), the father was the plaintiff and the son one of the defendants. The plaintiff died pending the appeal and the son was, as his representative, the sole plaintiff. It was held under the peculiar circumstances of the case he can only get such relief as would have been possible, had he occupied that position at the institution of the suit.
I set aside the order allowing the amendment of the plaint, with costs in this and the Lower Court.
C.KPetition allowed.