Rajendra Nath Mittal, J. - (1.) THIS revision petition has been filed by some of the legal representatives of Major Harbans Rai, deceased, against the order of the Subordinate Judge 1st Class, Ropar, by which he refused them to amend the written statement.
(2.) BRIEFLY , the facts of the case are that the plaintiff respondents instituted a suit for specific performance against Major Harbans Rai, regarding the land in dispute. The suit was contested by Major Harbans Rai. He died during the pendency of the suit and his legal representatives were brought on the record as defendants. They nude an application that they may be allowed to amend the written statement and take the following pleas : - (a) That Major Harbans Rai deceased defendant was Hindu and was governed by Hindu law. (b) That the suit property held by Major Harbans Rai deceased defendant is the joint Hindu Family and coparcenary property qua legal representatives and other coparceners. He was not the sole owner of the suit land. Moreover, the land which was allotted to him in Pakistan was Banjar and was reclaimed out to the joint Hindu Family Funds and the land so allotted blended in the joint Hindu Family property and the suit land which was allotted to him in India after partition of the country in lien of the land held in Pakistan has become the joint Hindu Family property and coparcenary. (c) That Shri Pawan Kumar son of Major B.S. Shorey, 2. Kuldip Rai Major and 3. Sandeep Rai minor -sons of Lt. Col B.S. Shorey 4. Vaneet Shorey minor son of Shri Sld pat Rai Shorey and 5. Naveen Shory minor son of Shri Raghpat Rai are also the necessary parties to be impleaded in the suit being the coparcenars as Pawan Kumar Kuldeep Rai and Sandeep Rai are the grand sons of Major Harbans Rai deceased and Vanet Shorey and Naveen Shorey are the great grand son of Major Harbans Rai deceased and without impleading them as the parti's to the suit, the suit cannot proceed and the suit is liable to be dismissed. (d) That the alleged agreement is not for the consideration nor the same for any legal necessity of the Joint Hindu Family. Moreover there was no legal necessity to sell the suit land nor the agreement has been made for the benefit of Joint Hindu Family and as such the agreement is not enforceable and is not binding on the defendants. (e) That Major Harbans Rai had no disposing mind at the time of executing of the alleged agreement and the alleged agreement is invalid and devoid of force. The learned trial Court dismissed the application on June 7, 1975. Some of the legal representatives of the deceased have me up in revision against that order to this Court. 2. The only contention of the Learned Counsel for the petitioners is that the legal representatives of the deceased could take additional pleas by way of amendment in order to avoid multiplicity of suits. He argues that after the death of Harbans Rai, his legal representatives had a right to take all the pleas which were open to them. In support of his contention, he placed reliance on Jagdish Chander Chatterjee and others v. Shri Siri Krishan AIR : (1972) 2 S.C.C. 461. I have heard the Learned Counsel for the parties and find force in the contention of the Learned Counsel for the petitioners. This matter is fully covered by the observations of their Lordships of the Supreme Court in Jagdish Chander Chatterjee's case (supra) wherein it is observed that under sub clause (ii) of Rule 4 of Order XXII, Civil procedure Code, any person made a party as legal representative of the deceased -respondent is entitled to make any defence appropriate to his character as legal representative of the deceased -respondent. In other words, the heirs and the legal representatives can urge all contentions which the deceased can urge except only those which were personal to the deceased. It is further observed that this does not pre cent the legal representatives from setting up their own independent title in which case there could be no objection to the Court impleading them not merely as the legal representatives of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title.
(3.) MR . M.S. Librahan, the Learned Counsel for the respondents, submits that the pleas which have been taken by the petitioners cannot be taken by them by amending the written statement. In support of this contention, he placed reliance on Smt. Phool Rani and others v. Naubat Rai Ahluwalia : A.I.R. 1973 S.C. 2110. Suffice to say, that the facts of the aforesaid case are distinguishable and the observations made therein are not applicable to the facts of the present case. For the aforesaid reasons, the contentions of the Learned Counsel for the petitioners must prevail.;