Skip to content


Musammat Jarao Kunwar Vs. Rani Bhagwan Kunwar and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All184; 63Ind.Cas.773
AppellantMusammat Jarao Kunwar
RespondentRani Bhagwan Kunwar and ors.
Excerpt:
civil procedure code (act v of 1908), order i, rule 10 - suit for money--contesting claimant made defendant--contesting claimant, whether can be made plaintiff and suit decreed in his favour. - - ' presumably the dispute to whish they refer is the dispute between themselves and her which, as a matter of actual fact, had been nettled by the compromise of the 25th of april 1913, she in her written statement pointed out the bad faith of the two plaintiffs. the appeal must, therefore, fail and is accordingly dismissed......only to a half share of the sum claimed. it, therefore, dismissed chiranji lal's claim it gave ram pratab a decree for half of the amount claimed as against the defendants and their pre parties that were liable. musammat jarao kunwar alone has now appealed. it is urged on her behalf that in the circumstances of the case she ought to have been made a plaintiff and a decree for the other half of the money should have been parsed in her favour, and her prayer before us is, that this should now be done and that a decree for half of the amount should be given to bar. it is admitted that she at no time formally asked the court below in make her a plaintiff, nor can we see how it was possible for the court below to so make her a plaintiff. her case was that chiranji lal was entitled to nothing.....
Judgment:

1. This is a defendant's appeal arisng out of a suit for contraction. One Thakur Das died leaving a widow Musammat Jarao Kunwar. On his death a dispute arose between Jarao Kan war on the one side and two persons, Chiranji Lal and Ram Pratab, on the other. Thakur Das had a first cousin namad Himmat Ram. Ram Pratab and Chiranji Lal claimed that Thakur Das and Himmat Ram were joint; that Ram Pratab was the adopted son of Himmat Ram and that Chiranji Lal was the adopted son of Thakur Das. They, therefore, claimed that Jarao Kunwar had no right whatsoever to the estate in dispute, which she claimed to be the separate estate of Thakur Das. There was considerable litigation between these contesting parties and finally on the 25th of April 1913 they same to a compromise. Under that compromise it was settled that Ram Pratab was to take half the estate immediately; that Jarao Kunwar was to remain in possession of the other half of the estate for her lifetime; that she was to live on the income derived therefrom, out of whish she was to pay to Chiranji Lal an annual allowance or Rs. 1,600, and that on her death Chiranji Lal was to have possession of her half of the estate. To put it briefly, Jarao Kunwar was given a life-estate in the one half subject to payment of an annual allowance to Chiranji Lal and on her death Chiranji Lal was to take her half of the estate. There was a portion of the estate whish together with other properties was made liable for a debt due on a charge. A decree was obtained whish was put into execution, and out of the several properties whish were involved this one property belonging to this estate was put to sale. The other properties were not put to sale. The suit out of which the present appeal has arisen was instituted in the year 1916 by Ram Pratab and Chiranji Lal, claiming contribution from those properties which had not contributed to the satisfaction of the decree. So far as the plaint is concerned, the two plaintiffs Ram Pratab and Chiranji Lal purported to sue as if they were joint. In paragraph 10 of their plaint they stated that Musammat Jarao Kunwar was a Hindu widow in a joint family that she did not join in the suit; that she was made a party for the purpose of the frame of the suit and also for the purpose of removing 'the dispute.' Presumably the dispute to whish they refer is the dispute between themselves and her which, as a matter of actual fact, had been nettled by the compromise of the 25th of April 1913, She in her written statement pointed out the bad faith of the two plaintiffs. She said that she and Ram Pratab, plaintiff No. 1, were the owners of the whole estate in equal shares and that Chiranji Lal, plaintiff No. 2, had no right in it. That Ram Pratab has in spite of the knowledge of the feet that Ohiranji Lal had no right in the moony, claimed jointly with him and that he (Ram Pratab) and she, the contesting defendant, owned it in equal shares, that they had improperly impleaded her as a defendant. She said she was willing that a decree might be passed in favour of Ram Pratab and herself and that the claim of the plaintiff, Chiranji Lal, should be dismissed. The Court below framed the necessary issues in the case. Ii found that some of the other properties were not liable to contribute and exempted the owners thereof from the claim for contribution. It found that the other properties were liable to contribute and worked out the amount whish was due from the owner of each of these properties. As to Chiranji Lal's claim the Court below held that he had no right whatsoever to sue in view of the compromise mentioned above. It held that the plaintiff Ram Pratab was in titled only to a half share of the sum claimed. It, therefore, dismissed Chiranji Lal's claim It gave Ram Pratab a decree for half of the amount claimed as against the defendants and their pre parties that were liable. Musammat Jarao Kunwar alone has now appealed. It is urged on her behalf that in the circumstances of the case she ought to have been made a plaintiff and a decree for the other half of the money should have been parsed in her favour, and her prayer before us is, that this should now be done and that a decree for half of the amount should be given to bar. It is admitted that she at no time formally asked the Court below in make her a plaintiff, nor can we see how it was possible for the Court below to so make her a plaintiff. Her case was that Chiranji Lal was entitled to nothing as long as she lived; that she was entitled to one-half of the money and that Ram Pratab was entitled to the other half. There was, therefore, as between her and Chiianji Lal, a decided contest and the Court had to go into the dispute and decide whish of them wai entitled. In the end it held that she was entitled and it, therefore, dismissed Chiranji Lal's suit. Section 22 of the Limitation Act or Order I, Rule 10, Civil Procedure Code, do not govern this case at all, Where a plaintiff A claims to have sole right to a certain sum of money due from a defendant B and where he makes a third person, who claims as against himself (A), a party to the suit, it is impossible in the course of that suit to make the opposing and contesting claimant plaintiff in place of A, To do so would be to deprive A of his power to sue and ask for a determination upon his claim. It is very different in a suit in which A comes forward and claims that he and 0 are the owners of the property claimed as against B and where he says that has refused to join the suit and he, therefore, makes him a party as a defendant. In the latter case it would be always open to the Court to transfer, if he. were willing, from the array of defendants, and put him into the suit with the plaintiff A. But where the contesting defendant disputes the claim of the plaintiff to the property in suit, that claim has to be decided, and on its decision in favour of the defendant, the suit fails and is dismissed with costs. It is impossible in a suit of that description to give the contesting defendant, who disputes the plaintiff's claim, a decree as against a co-defendant 'We find it impossible, there fore, to cased to the appellant's request and to give her a decree in place of Chiranji Lal as against the other defendant. In view of the dispute between her and Chiranji Lal it was impossible to make her a plaintiff and impossible in the suit to give her a decree as against her as defendant. The appeal must, therefore, fail and is accordingly dismissed. We make no order as to costs, Chiranji Lal has not appeared and no certificates have been filed on behalf of the other, respondents.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //