Skip to content


Thotapalle Sarvabhatla Venkata Chandikamba Vs. Kanala Indrakanti Viswanadhammayya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1936)71MLJ264
AppellantThotapalle Sarvabhatla Venkata Chandikamba
RespondentKanala Indrakanti Viswanadhammayya
Cases ReferredGopal Rao v. Narasingha Rao I.L.R.
Excerpt:
- - before adoption she seems to have entered into an arrangement with the adopted son in and by which the adopted boy should have absolute right in some of the properties of her husband and she should enjoy the rest of his properties during her lifetime. while the said suit was pending the said subbamma died and the plaint was amended by adding a prayer for possession and she ultimately obtained a decree for all the properties, both the properties in which the husband was absolutely entitled to under the deed of adoption, and also the properties which were being enjoyed by subbamma. it is now well-established that to constitute omission by the plaintiff within the meaning of order 2, rule 2 civil procedure code, it is necessary that the claim must have been known to him......district munsif was of opinion that the plaintiff's father was unaware of the existence of the suit property and therefore order 2, rule 2 would not be a bar. he also held that the plaintiff being then a minor any negligence of the guardian would not affect the plaintiff's right to sue. the learned subordinate judge reversed his decision holding that the question of the knowledge is immaterial for the purpose of order 2, rule 2 and omission from whatever cause would preclude the plaintiff from claiming the suit property and he further held that she should be bound by the act of the next friend and no plea of gross negligence having been alleged in the plaint as against the plaintiff's father it would not be open to her to rely on want of knowledge on his part. it is now contended by.....
Judgment:

Venkataramana Rao, J.

1. The question in this Second Appeal is whether the suit is barred by Order 2, Rule 2 Civil Procedure Cade. The facts necessary for the disposal of this question may be briefly stated. The plaintiff is the widow of one Krishnayya. The said Krishnayya was adopted by one Venkatasubbamma to her husband under an authority given to her by a will. Before adoption she seems to have entered into an arrangement with the adopted son in and by which the adopted boy should have absolute right in some of the properties of her husband and she should enjoy the rest of his properties during her lifetime. The adopted son died without leaving any issue. As during the lifetime of the plaintiff's husband the adoptive mother was managing the estate and she declined to put the plaintiff in possession of the properties after his death, the plaintiff instituted a suit O.S. No. 23 of 1920 on the file of the sub-Court, Kurnool through her father as next friend, she being then a mirfor, for recovery of the properties which under the deed of adoption the plaintiff's husband was absolutely entitled to and also for a declaration that in the remaining properties the plaintiff's husband had a vested interest, and the plaintiff would be entitled to get them after the death of Subbamma. While the said suit was pending the said Subbamma died and the plaint was amended by adding a prayer for possession and she ultimately obtained a decree for all the properties, both the properties in which the husband was absolutely entitled to under the deed of adoption, and also the properties which were being enjoyed by Subbamma. There was one property called Cheruvu Chenu in the Pasupula village which consisted of three survey Nos. 91, 182, and 181. In the belief that the said Cheruvu Chenu consisted of only two survey numbers the claim in the previous suit was made in respect of two survey numbers and the other survey number was omitted to be included therein. The plaintiff after attaining majority discovered the existence of this property and sued to recover the same by the institution of the present suit. She alleged that her next friend at the time of the institution of the former suit was unaware of its existence. The learned District Munsif was of opinion that the plaintiff's father was unaware of the existence of the suit property and therefore Order 2, Rule 2 would not be a bar. He also held that the plaintiff being then a minor any negligence of the guardian would not affect the plaintiff's right to sue. The learned subordinate Judge reversed his decision holding that the question of the knowledge is immaterial for the purpose of Order 2, Rule 2 and omission from whatever cause would preclude the plaintiff from claiming the suit property and he further held that she should be bound by the act of the next friend and no plea of gross negligence having been alleged in the plaint as against the plaintiff's father it would not be open to her to rely on want of knowledge on his part. It is now contended by Mr. Govindarajachari on behalf of the plaintiff that the view of the learned subordinate judge is not sound. It is now well-established that to constitute omission by the plaintiff within the meaning of Order 2, Rule 2 Civil Procedure Code, it is necessary that the claim must have been known to him. It is only a claim or remedy known at the time of the institution of the suit of which a subsequent litigation will be barred. This view has been consistently taken by this High Court. Vide Viraraghava v. Krishnaswami I.L.R.(1883) 6 Mad. 344 and Sankaran v. Parvathi I.L.R. (1895) 19 Mad. 145. In Minor Vasudevan v. Arunachala Aiyar (1925) 23 L.W. 415. Venkatasubba Rao, J., had to consider this question. In that case the plaintiff sued to recover certain properties on the footing of a document the contents of which he was unaware at the time of the institution of the suit. He made a claim in the plaint in respect of certain properties so far as they were then known to him and he obtained a decree in respect thereof. Then he filed a review petition stating that from the document he found that he was entitled to further properties which he omitted to include in the plaint and wanted the decree to be rectified. This relief was negatived. Then he filed another suit claiming to recover the property omitted in the former plaint. He was held entitled to do so. Therefore this case seems to indicate that actual knowledge of the claim is necessary to bar the relief and not constructive knowledge. In this case from the evidence of the next friend, the plaintiff's father, it is clear that he was unaware of the existence of the suit survey number though he might have by proper enquiry made himself aware of its existence. Mr. Parthasarathy Aiyangar relied on the decision in Ramujagar Pande v. Bhagirathi (1914) 27 I.C. 808. But that was a case of oversight. It has been held that an accidental omission will be an omission within the meaning Order 2, Rule 2. Vide Moonshee Buzloor Ruheem v. Shumsoonnissa Begum (1867) 11 M.I.A. 551. And as observed by the learned Judge in Ramujagar Pande v. Bhagirathi (1914) 27 I.C. 808 a litigant cannot be required to include in his suit the claim for relief based upon facts of which he is ignorant. I am therefore of opinion that Order 2, Rule 2 will not preclude the plaintiff from claiming the suit property. In this view it is unnecessary to consider the correctness of the decision in Gopal Rao v. Narasingha Rao I.L.R. (1899) 22 Mad. 309 I therefore allow the appeal, reverse the decree of the learned District Judge and restore that of the learned District Munsiff. I direct each party to bear his own costs.


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