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TMI Blog1991 (12) TMI 293X X X X Extracts X X X X X X X X Extracts X X X X ..... dant was the karta of the joint family and was managing its affairs. In the year 1967, there was a partition wherein plaintiff was given six 'annas share while 10 annas' share was kept by first defendant and his family. A deed of partition was executed on 22.6.1968 and registered on 27.6.1968. Since then, parties are in separate possession and enjoyment of the lands falling to their respective shares. Plaintiff was afflicted by cancer. D-4 is her sister. She appointed the husband of the fourth defendant as her power of attorney-holder to manage her properties. On 31.10.1968, she executed a deed of settlement in respect of some of her properties (mentioned in plaint-D schedule) in favour of fourth defendant and simultaneously cancelled the power of attorney in favour of her husband. On 24.1.1969, she executed a will in favour of her brother's son in respect of her remaining properties. While she was at Cuttack, defendants 1,2 and 3 did not allow her or her representatives/agents to harvest the paddy or collect the usufruct from her lands. Hence the suit. 3. Plaintiff Urmila died pending the suit Her brother's son Bhojakrishna Panda came on record as her legal repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from interfering with the plaintiff's possession. The claim for mesne profits was, however, negatived. 9. Three appeals were preferred in the Orissa High Court. F.A. No. 145 of 1971 by third defendant, F.A. No. 9 of 1972 by defendant No. 1(C) (Mahalakshmi) and her son, fifth defendant and F.A. No. 15 of 1972 by the second defendant and his wife, the sixth defendant. All the three appeals were heard together by a Division Bench. Before the Division Bench a "preliminary objection" was raised by the appellants/defendants that "the suit as it stands is not maintainable and plaintiffs 1 and 2 who have been substituted in place of Urmila after her death during the pendency of the suit cannot proceed on with the suit and they are also not entitled to the reliefs which were claimed by Urmila." It was contended by the defendants/appellants that the legal representatives of the deceased plaintiff, Urmila, are not members of the family; that they are strangers and that "they cannot prosecute the suit as if the original plaintiff is not dead." They relied upon certain decisions in support of their contentions. The Division Bench referred to those decisions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the possession has been delivered to second plaintiff. Therefore, they are also not entitled to the injunction. Another observation made by the Bench is to the following effect: There is no prayer for declaration of title or for recovery of possession. The present plaintiffs are not entitled to injunction inasmuch as they are not in possession. There cannot be any injunction against the defendants in respect of the entire joint family properties when admittedly they are co-sharers. In view of this possession, the decree as described above is wrong. 12. Finally, the Division Bench reiterated its view, stated earlier, that since the present plaintiffs are claiming on the basis of settlement and will, their cause of action is different from that of the original plaintiff and therefore, they cannot continue the suit Accordingly, the Bench vacated all the findings of the trial court with the observation that the legal representatives of the original plaintiff should be left to work out their own rights in independent suits. All the three appeals were allowed and the suit filed by Urmila was dismissed. 13. We have heard counsel for the parties and are of the considered opinion th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the matter must be directed to be agitated by way of a separate suit. 16. The next decision is in Dukh Haran Tewary and Ors. v. Dulhin Bihasa Kuer AIR 1963 Pat 390. This decision merely holds that an order impleading certain persons as legal representatives of a deceased party does not confer upon them any title as such and that such order does not bar a regular suit regarding the question as to who is the real heir to the deceased party. 17. The next decision cited is in Om Prakash v. Union of India AIR 1978 Punj & Har 272. A learned Single Judge held that in personal actions, the cause of action comes to an end with the death of the plaintiff. In that case the plaintiff was retired from service on his attaining the age of superannuation taking his date of birth as 1.12.1913. He filed a suit for a declaration that his retirement on the said basis is illegal. He also questioned certain punishment imposed upon him for producing false certificate. During the pendency of the appeal, he died. In those circumstances, it was held that since the claim made by him was personal in nature, the cause of action does not survive. 18. Kunwar Singh v. Om Kant AIR 1978 Jam & Kas 22 is a deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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