Legal representatives may adopt a deceased defendant’s written statement but cannot depart from its pleadings.

The petitioners, the legal heirs of Lalan Prasad Sinha, challenged an order of the District and Additional Sessions Judge III, Patna, rejecting their application to adopt the written statement filed by Lalan Prasad Sinha in a probate proceeding concerning a Will dated 30 September 2016.

After his death, the petitioners were substituted in the proceeding and continued to contest it, including by cross-examining the petitioner’s witnesses, on the basis of his written statement.

They sought permission to adopt that written statement; the trial court rejected their application.

1. Whether the petitioners, as legal representatives of the deceased defendant, could rely on the written statement filed by him to continue contesting the probate proceeding.

2. Whether the trial court’s rejection of the petitioners’ application to adopt that written statement should be set aside.

Order XXII Rule 4(2) of the Code of Civil Procedure permits a legal representative of a deceased defendant to raise defences available to the deceased, except defences personal to the deceased.

In Vidyawati v. Manmohan, (1995) 5 SCC 431, relying on Bal Kishan v. Om Parkash, AIR 1986 SC 1952, and Jagdish Chander Chatterjee v. Sri Kishan, (1972) 2 SCC 461, the Supreme Court stated that legal representatives may advance the deceased’s non-personal defences and may also assert an independent title where appropriate.

The petitioners had been substituted as legal representatives and were contesting the proceeding on the basis of their predecessor’s written statement.

Applying the principle that legal representatives may raise the deceased’s non-personal defences, the High Court set aside the order rejecting their application.

It confined their right to contest the case to the written statement filed by Lalan Prasad Sinha, consistent with the petitioners’ submission, and barred them from retracting or deviating from its averments.

The petitioners were permitted to contest the probate proceeding solely on the basis of Lalan Prasad Sinha’s written statement, without retracting from or departing from its averments.

The trial court was requested to dispose of the probate case expeditiously without unnecessary adjournments, and both parties were directed to cooperate.