V. Sethuraman, J.
1. The first defendant in O.S. No. 862 of 1968 in the Court of the District Munsif, Tiruppur, is the appellant herein. The plaintiffs, Nachimuthu Gounder and Palaniswami Gounder, are brothers. They have another brother by name Chinnaswamy Gounder, who is the second defendant in the suit. The first defendant is the son of one of the sisters of the plaintiffs and the second defendant. The father of the plaintiffs and the second defendant and the maternal grandfather of the first defendant is one Ramaswamy Gounder. The A schedule properties to the plaint are 3 items conveyed under Exhibits A-2 to A-4 dated 28th March, 1949, 28th August, 1950 and 21st September, 1950 in the name of the said Ramaswamy Gounder. The case of the plaintiffs in the plaint was that though the sale deed Exhibits A-2 to A-4 were taken in the name of the said Ramaswamy Gounder, he did not pay the purchase price for the sale transaction out of his own funds, but that the purchase price came out of the income from B schedule property owned by the plaintiffs and the second defendant. According to the plaintiffs the A schedule properties were the separate properties of theirs and the second defendant. On 17th October, 1968 the said Ramaswamy Gounder was said to have been taken to the house of Peria Nachammal, their sister, by the first defendant and on the next day viz., 18th October, 1968 the first defendant got executed by the said Ramaswamy Gounder and registered a conveyance for a sum of Rs. 10,000 of the A schedule properties which were worth much more. The plaintiffs' case was that no consideration passed for the sale deed, that it was a sham and nominal document and that at the time of the execution of the said conveyance,, their father who was aged about 90 years, was not in sound health and was an enfeebled man not capable of exercising his free volition. They claimed to have presented their objection petition before the Sub-Registrar, Palladom, who, it is said, registered the document in spite of their objection. They claimed that the first defendant was in possession and enjoyment of the A schedule properties, that they obtained an order of temporary injunction and that after the disposal of the appeal against the said order in the District Court which, negatived the grant of the temporary injunction the first defendant trespassed into the A schedule properties and took forcible possession thereof. So they came forward with a suit for a declaration of their title and that of the second defendant to the A schedule properties, and for a consequential permanent injunction restraining the first defendant from interfering with their possession. They subsequently amended the plaint and asked for delivery of possession of the A schedule properties after they got an adverse order in the District Court against the interim order granting temporary injunction. It was alleged that the sale deed had been brought about fraudulently when Ramaswamy Gounder was unable to realise what he was doing. Particulars of the fraudulent conduct were specified in paragraph 8 of the plaint. There was an alternative plea that even assuming that the A schedule properties were family properties, the said Ramaswamy Gounder was entitled to only 1/4th share therein and that, therefore, the first defendant was not entitled to possession of the A schedule properties.
2. The first defendant contended that the A schedule properties were purchased' exclusively by Ramaswamy Gounder out of his business in cotton and that they were his exclusive properties. According to the first defendant, the income-from B schedule properties was not utilised for the purchase of the A schedule properties and that Ramaswamy Gounder was in exclusive possession and enjoyment of the A schedule properties on his own and Ramaswamy Gounder was competent to alienate the A schedule properties. He denied taking Ramaswamy Gounder to his place. The further defence was that Ramaswamy Gounder being the manager of the family was-entitled to alienate the property and that the plaintiffs and the second defendant were not entitled to any interest therein or to any of the reliefs prayed for.
3. The trial Court came to the conclusion that the A schedule properties had not been purchased with the funds of the plaintiffs and the second defendant derived from the B schedule properties, that the A schedule properties were in possession and enjoyment of Ramaswamy Gounder as his separate properties and that the said properties were not the joint family properties. It was further held that the sale deed executed by Ramaswamy Gounder in favour of the first defendant was valid and binding on the plaintiffs and the second defendant as it was supported by consideration. It was also held that the plaintiffs were not in possession of the A schedule properties on the date of the suit and that there was no trespass by the first defendant as alleged in the plaint. The suit was accordingly dismissed by the trial Court.
4. The unsuccessful plaintiffs appealed and the learned First Additional Subordinate Judge of Coimbatore came to the conclusion that the A schedule properties were the exclusive properties of Ramaswamy Gounder and that he was competent to alienate those properties by virtue of his being the absolute owner thereof. The learned Subordinate Judge further held that only by way of a fraudulent scheme the conveyance in favour of the first defendant had been got up and that the said conveyance was a nominal one having been fraudulently obtained by the first defendant so as not to be binding on the plaintiffs and the second defendant. It may be mentioned herein that Ramaswamy Gounder was alive during the pendency of the, suit, which was disposed on 3rd October, 1970. The appeal itself was presented in the District Court on 2nd January, 1971 and Ramaswamy Gounder died in December, 1971, that is during the pendency of the appeal. Two of the points framed by the learned Subordinate Judge for determination were:
(3) what is the interest that the appellants (plaintiffs) second respondent and the first respondent have in the suit properties?
(4) Whether the appellants and the second respondent are entitled to any relief on the facts of the case and if so, to what relief?
Having held that the conveyance was a nominal document and that the first defendant did not get any title there-under; has findings on these two points were set out in paragraph 29 as follows:
So my finding under those points is the appellants and the second respondent and the other heirs of deceased Ramaswamy Gounder under Section 8 of the Hindu Succession Act are entitled to the suit properties but on behalf of the other heirs also the appellants are entitled to recover possession of the suit properties from the first respondent.
In the result, the learned Subordinate Judge modified the judgment and decree of the lower Court by holding that the plaintiffs and the second defendant and the other heirs of the deceased Ramaswamy Gounder under Section 8 of the Hindu Succession Act, 1956, were entitled to the plaint A schedule properties and that the plaintiffs were entitled to recover possession thereof from the first defendant on behalf of themselves and the second defendant and the other heirs. Time for delivery by the first defendant was fixed as three months from the date of the judgment, viz., 4th May, 1973. It is this judgment that is challenged in this second appeal before me by the first defendant.
5. The learned Counsel for the appellant questioned the jurisdiction of the learned Subordinate Judge to grant a decree in favour of the plaintiffs in the manner done by him. According to the learned Counsel, Ramaswamy Gounder was alive at the time of the suit and once it was found by the Courts below that the A schedule properties to the plaint were the exclusive properties of Ramaswamy Gounder and that he was competent to alienate those properties by virtue of his being their absolute owner, it was Ramaswamy Gounder, who alone could have questioned the alienation. As the plaint was filed when he was alive and as he had not questioned the alienation and as at no material time the plaint was even amended, it was not in the submission of counsel open to the Court below to have varied and modified the decree of the trial Court in the manner done by the lower appellate Court. For the plaintiffs respondents the submission was that the Court could grant any relief so as to not to drive the parties to any future litigation. When once it was found that Ramaswamy Gounder was the owner of the properties and when it was also clear that he had died during the pendency of the appeal, it was, according to the learned Counsel for the respondents, open to the Court not to drive the parties to a fresh litigation but to mould the relief in such a manner so as to give effect to the finding that the transaction was a nominal transaction fraudulently obtained from Ramaswamy Gounder by the first defendant in his favour.
6. The first question that arises for my consideration is whether the conclusion of the Courts below that the transaction was a nominal one, fraudulently obtained by the first defendant in his favour from Ramaswamy Gounder, was correct. If this question is to be decided in favour of the first defendant there would be no need to go into the point as to whether the appellate Court was justified in varying and modifying the decree of the trial Court in the manner done by it. In the plaint in paragraph 8 it was stated as follows:
8. The plaintiffs learn that on 18th October, 1968 the sale deed has been attested by Muthusinnia Gounder and Palaniswamy Gounder. Two pronotes for Rs. 3,000 each dated 12th March, 1964 and 4th December, 1966 in favour of attestor, Palaniswamy Gounder and Muthusinnia Gounder's son Palaniswamy Gounder have been quoted and an alleged cash consideration of Rs. 2,000 is stated to have been paid. The two pronotes are false and concocted for the occasion. There was neither occasion nor necessity for Ramaswamy Gounder to borrow such huge amounts in 1964 and 1966. The cash consideration is also false. The sale deed has been brought about fraudulently when Ramaswamy Gounder was unable to realise what he was doing. Further he had no title to convey.
The learned trial Judge considered this point as to whether the conveyance in favour of the first defendant was not supported by consideration and observed as follows:
The first defendant has proved Exhibit B-1 by examining himself and by examining D.W. 1 who is one of the attestors. When the plaintiffs do not contend that the thumb impression in Exhibits B-6 and B-8 being the endorsement in the pronotes dated 2nd March, 1964 and 4th December, 1964 for Rs. 3,000 each are forged ones, that they do not relate to their father the explanation offered by D.W. 2 for the presence of the thumb impression in the abovesaid documents can be easily accepted. The plaintiffs have not succeeded in showing that Exhibit B-1 is not supported by any consideration and that the pronote quoted in it are all imaginary notes.
However, on appeal, the learned Subordinate Judge held as follows:
Under these circumstances, I am of the view all these materials cumulatively taken, go to show the correctness of the evidence of P.W. 3 that on the evening of 17th October, 1968 Ramaswamy Gounder was taken by the first respondent accompanied by D.W. 1 and D.W. 2's father and on the next day on information given by her to appellants, the appellants have preferred the objection statement before the Sub-Registrar on 18th October, 1968. Under these circumstances no reliance can be placed upon the testimony of D.W. 1 and D.W. 2 and taking the entire materials on record, I am of the view that they are only partisan witnesses of the first respondent and are not disinterested witnesses and only by way of fraudulent scheme that Exhibit B-l had been got upon. It is only to give a colour of reality to Exhibit B-1 that Exhibits B-5 and B-7 must have been fabricated and it is to be noted that the attestor to Exhibits B-5 and B-7 had also been examined. Therefore as in Exhibit B-1 document fictitious debts have been quoted. It goes without saying by the same scheme of fraud, the alleged passing of cash consideration would also, be false. Therefore, for the aforesaid reasons, I come to the conclusion that Exhibit B-1 is a nominal document and it had been fraudulently obtained by the first respondent and so it does not bind the appellants and the second respondent.
The way in which the learned Counsel for the appellant sought to challenge this finding was that in the case of fraud particulars should have been given in the plaint and that in the present case the particulars had not been given. It was also submitted that there was no specific issue on the question of fraud. I am unable to accept these submissions. Though there was no specific issue on the question of fraud as set out in paragraph 8 of the plaint, both the Courts below have gone into the question. It was never the case of the first defendant that the particulars of fraud had not been given and that, therefore, he was unable to meet the charge of fraud. When the particulars were given and on the basis of those particulars the parties went to trial and led evidence it is now too late in the day for the appellant-first defendant to contend that the particulars of fraud had not been given. The question as to whether there was a fraudulent conduct on the part of the first defendant in obtaining the conveyance in his favour is a question of fact. Though the trial Court had taken a different view, the appellate Court has given ample reasons to show that there was a fraudulent scheme under Exhibit B-1 and that the conveyance in favour of the first defendant had been got up. I am unable to hold that the appreciation of the evidence by the lower appellate Court was in any manner perverse. Under these circumstances, I accept the finding that the charge of fraud had been made out and. that the conveyance in favour of the first defendant was only a got up one. It has to be borne in mind that D. Ws. 1 and 2 were the persons in whose favour the promissory notes for Rs. 3,000 each had been executed and that the Court below did not consider the debt to be genuine. It is no wonder that they were treated as interested witnesses. It is, therefore, clear that the finding of the lower appellate Court on the question of fraud has to stand.
7. When once there is a finding of a fraudulent conduct on the part of the first defendant to get a conveyance in his favour of the properties of Ramaswamy Gounder, the question that arises is whether the lower appellate Court was justified in granting a decree in favour of the plaintiffs who were only two of the heirs of the deceased Ramaswamy Gounder. The contention urged on behalf of the appellant was that there were several other heirs. Ramaswamy Gounder had left behind him not only his 3 sons who were the plaintiffs and the second defendant but also daughters and therefore, in the absence of all the heirs of Ramaswamy Gounder being parties to the suit and in the absence of any allegation in the plaint that the plaintiffs and the others are the heirs of the said Ramaswamy Gounder on the basis of which alone the suit could have been filed and that too only after Ramaswamy's death it was urged that it was not open to the Court below to grant a decree in favour of the plaintiffs as if they alone were interested in the properties. It is in this context that I have to consider the authorities brought to my notice.
8. In Nagubai Ammal and Ors. v. B. Shama Rao and Ors. : 1SCR451 there was a suit for a declaration of the plaintiff's title to a certain building site. The properties belonged to one Munuswamy, who died leaving him surviving his third wife Chellammal, three sons by his deceased wives, Keshavananda, Madhavananda and Brahmananda and three minor daughters. The three brothers executed a usufructuary mortgage on 1st September, 1918 in favour of one Abdul Huq and a period of three years was fixed for redemption. There was a lease back of the properties by the mortgagee to the mortgagors on 3rd September, 1918 and it was also for a period of three years. On 6th September, 1918 the three brothers effected a partition under which they were to pay each a sum of Rs. 8 per mensem to their stepmother, Chellammal, for her maintenance and their stepsisters should be under their protection. Chellammal filed a suit in 1919 claiming maintenance. The suit was filed in forma pauperis. In that suit a sum of Rs. 6 was granted as maintenance to her per mensem and Rs. 1,500 for marriage expense of the minor daughters. In execution of these decrees the properties, which were under the mortgage were sold on 2nd August, 1928 and were purchased by one of the daughters of the deceased Munuswamy. A sale certificate was issued to her on 21st November, 1930. There were also proceedings in execution of the decrees obtained by Chellammal, the third wife by another daughter and also by a third party. While the said proceedings were going on, the mortgagee under the mortgage dated 1st September, 1918 filed a suit on 16th August, 1921 for recovery of the arrears of rent due by them under the lease deed and obtained a decree on 21st October, 1921. He was unable to realise anything in execution thereof and thereafter he filed a second suit against the mortgagors for arrears of rent for a period subsequent to that covered by the decree in the earlier suit and for possession of the properties on the basis of the lease deed dated 3rd September, 1918. He obtained a decree on 22nd March, 1932; that he was unable to obtain possession, as the properties were in the occupation of third parties. The mortgagee died and thereafter his legal representatives filed another suit in 1933 to enforce their rights under the mortgage. The plaint alleged that the mortgagors had failed to pay rent as provided in the lease deed dated 3rd September, 1918 and had suffered collusive decree to be passed against them in the maintenance suits and other actions, and that the properties had been sold fraudulently in execution of those decrees. They prayed for a decree for possession as against the purchasers and for a sum of Rs. 5,000 as damages. In the alternative, they prayed for a decree for sale of the mortgaged properties for the amount due under the mortgage. On 26th September, 1935 a decree was passed determining the amount payable to the heirs of the mortgagee and providing for payment by 26th January, 1936. As the amount was not paid, the properties were sold in Court-auction some time in 1936. They were purchased by a third party, who sold it to one Krishna Rao, who filed the suit for declaration of his title. In this suit there were several other defences to which I would not refer. There was however a plea of lis pendens taken by Krishna Rao who was the alienee from the Court-auction purchaser. This plea of lis pendens had not been raised in the plaint. The question before the Supreme Court was whether this plea could be adjudicated upon and in the course of their judgment, their Lordships observed as follows:
The question of lis pendens was raised by the plaintiff at the very commencement of the trial on 3rd March, 1947 when he went into the witness box and filed in his examination-in-chief Exhibit J series, relating to the maintenance suits, the decree passed therein and the proceedings in execution thereof, including the purchase by Devamma (one of the daughters of Munuswamy). This evidence is relevant only with reference to the plea of lis pendens and it is significant that no objection was raised by the defendants to its reception nay, more.
On 13th March, 1947 they cross-examined the plaintiff on the collusive character of the proceedings in Exhibit J series, and filed documents in proof of it. The trial went on thereafter for nearly three months, the defendants adduced their evidence; and the hearing was concluded on 2nd June, 1947. In the argument before the District Judge far from objecting to the plea of lis pendens being permitted to be raised, the defendants argued the question on its merits, and sought a decision on the evidence that the proceedings were collusive in character, with a view to avoid the operation of Section 52, Transfer of Property Act. 'We are satisfied that the defendants went to trial with full knowledge that the question of lis pendens was in issue, had ample opportunity to adduce their evidence thereon, and fully availed themselves of the same, and that, in the circumstances, the absence of a specific pleading on the question was mere irregularity, which resulted in no prejudice to them.
It was argued for the appellants that as no plea of lis pendens was taken in the pleadings, the evidence bearing on that question could not be properly looked into, and that no decision could be given based on Exhibit J series that the sale dated 30th January, 1920 was affected by lis; and reliance was placed on the observations of Lord Dunedin in Siddik Mohomed Shah v. Mt. Saran 31 L.W. 126 : 124 Ind.Cas. 569 : A.I.R. 1930 P.C. 1 , that no amount of evidence can be looked into upon a plea which was never put forward.
The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto.
I do not see how this case is of any help to the appellant herein. The learned Counsel relied on this case for the submission that there was not even an issue on the question of fraud. But as pointed out in the very case where the parties went to trial with knowledge that a particular question was in issue, though no specific issue had been framed thereon the proposition that the evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity to lend evidence would have no application. Thus, this is a case where the parties had every; opportunity for leading evidence on the question of fraud and did so. It was sought to be argued that the cause of action itself as a result of the death of Ramaswamy Gounder had undergone a change and in view thereof, there would be scope for the application of this principle. I shall examine the question of the change of cause of action a little later.
9. The learned Counsel then relied on a decision of the Andhra Pradesh High Court in Allam Gangadhara Rao v. Gollapalli Gangarao : AIR1968AP291 . That was a case in which the plaintiff filed a suit for recovery of certain lands on the basis that the land had been purchased by him from a third person and was since then in possession in his own right. It was alleged that the defendant, who was the husband of his deceased sister, had been asked to cultivate the land through his farm servant and taking advantage of the marriage, the defendant had trespassed into the suit land and removed the paddy crops. The trial Court decreed the suit. It was found by the appellate Court that the suit land was not the separate property of the plaintiff, but was joint family property. It was also found that the plaintiff, who was only one member of a joint Hindu family could not sue for recovery of possession of the land, and that the defendant was not a trespasser on the property having been given possession thereof under an agreement executed at the time of the marriage with the plaintiff's sister. The plaintiff sought to take up the position that the oral gift made at the time of the marriage of his sister was invalid, because of Section 123 of the Transfer of Property Act. The District Judge did not agree with this line of approach, as he was of the opinion that the plaintiff should not have been allowed to succeed, on a case not set up by him. In the second appeal before the High Court it was argued that since the trial Court had gone into this question of the validity of the gift, the plaintiff was rightly granted a decree by the trial Court. It is in this context the learned Judge observed as follows:
It is trite to say that a party is expected and is bound to prove the case as alleged by him and as covered by the issues framed. This is in accordance with the main principle of practice that a party can only succeed according to what was alleged and proved secundum allegate et probata. He should not be allowed to succeed on a case which he has failed to set up. He should not be permitted to change his case or set up a case which is inconsistent with what he had himself alleged in his pleading except by way of amendment of the plaint.
Further, the learned Judge observed as follows:
It is no doubt true that the above said general' rule has an exception. The general rule that the plaintiff will not be entitled to relief on the facts and documents not stated by him nor referred to by him in his pleading would not apply where the substantial matters which constitute the title of all the parties are touched in the issues and have been fully put in evidence in the case. Relief may be granted in such cases on the basis of such matters.
Therefore, this very case contemplates the exception to the rule that the party cannot change his case. There is nothing in this decision which would stand in the way of the plaintiff getting the relief if the facts warrant it.
10. Another decision to which my attention was drawn by the appellant is reported in Garikapati Veerayya v. Nannapaneni Subbayya Chowdhary and Ors. : (1966)2MLJ92 . That was a case of specific performance of an agreement to sell certain lands under an agreement dated 4th December, 1947. After paying part of the purchase price, the plaintiffs had not paid the balance and the defendant rescinded the contract. In the suit for specific performance the plaintiffs had alleged in the plaint that they kept the balance of the sale price all along ready and that they had deposited the money with their lawyer in November, 1948 which was long after the period specified in the agreement to sell. When this factual position was pressed against the plaintiffs, they wanted to alter their stand and contend that they could have raised the money for the purpose of paying the vendor. It is in this context that it was held that the new plea of fact that the plaintiffs could have raised the amount could not be raised for the first time in the appeal. This case also is of no help to the present one, because there is no alteration of the stand of the plaintiffs in the present case, as far as the first defendant is concerned. The decision of the Full Bench in Illikkal Devaswom v. Pottakkati Narayana Raghavan and Anr. : AIR1966Ker96 was a case in which there was a variance between pleadings and proof. The plaintiff claimed title to the property on the basis of sale and later on took an alternative stand in the appeal that he was in possession of the property and had valuable rights under Section 53-A of the Transfer of Property Act. As no foundation had been alleged for such change in pleadings the Court declined to investigate the question.
11. The decision reported in Dwijendra Narain Roy v. Jages Chandra De and Ors. : AIR1924Cal600 Hemanto Kumari Devi v. Prasanna Kumar Datta A.I.R. 1920 Cal. 32 and Official Receiver Kurnool v. Vele Pedda Mounamma and Ors. : AIR1968AP336 are all cases where an inconsistent stand was sought to be taken at the appellate stage. It was held that a party litigant could not be permitted to assume an inconsistent position in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate to the detriment of his opponent. It was also held especially in the last mentioned case that the doctrine applied not only to successive stages of the same suit, but also to another suit, other than the one in which the position was taken up, provided that the second suit arose out of the first suit. The present case is not one where there is any inconsistent stand. There is no attempt of blowing hot and cold. In the present case, the case of the plaintiffs was that the first defendant had obtained a conveyance fraudulently and that he was only a trespasser on the property. This case has not undergone any change at any stage. The only change that has taken place in the present proceeding is that the plaintiffs initially claimed as if they were the owners of the property and later on they claimed on the footing of their being the heirs of Ramaswamy Gounder so as to sustain a suit against a trespasser. The cause of action remained the same. I do not, therefore, consider that any of the decisions mentioned above has any scope for the application to the present case.
12. The learned Counsel for the appellant relied on a decision of a Bench of this Court in which it was ruled that the rights of the parties have got to be determined as on the date the cause of action arose and that supervening events would not be material. The decision relied on is reported in the State of Madras v. Kasthuri Animal and Ors. : (1974)2MLJ139 . That was a case in which the plaintiff handed over the suit site to the Executive Officer of a Panchayat in 1960 for construction of water works. The water works were constructed in 1961. When the plaintiff claimed compensation for the suit site, the Executive Officer of the Panchayat contended that a portion of the suit property was a minor inam and had vested in the Government by reason of an Act passed in 1963, so that the plaintiff would have to seek his or her remedies only under that Act. It was in this context that this Court observed that the rights of the parties have got to be determined as on the date the cause of action arose and, viewed in that perspective, the supervening event, viz., passing of the Act XXX of 1963, could not abridge or modify the right of the plaintiff to compensation as against the Executive Officer of the Panchayat. It was also pointed out that the right of the plaintiff could not be held to have been extinguished or curtailed by reason of that Act. That decision has also no scope for application to the facts herein. The cause of action in the present case is that the purported sale in favour of the first defendant was not a bona fide one and was invalid. This cause of action is not affected by the death of Ramaswamy Gounder and the plaintiffs claiming on the basis that they are the heirs of the said Ramaswamy Gounder. The supervening event of death of Ramaswamy Gounder has not in any manner affected the cause of action. It is necessary to keep in mind the distinction between the cause of action and the basis on which the person seeks to enforce that cause of action. The cause of action being the invalidity of the conveyance or nominal or fraudulent nature of the conveyance is not at all affected by the manner in which the plaintiffs put forward their rights. While at the earlier stages of the suit they had put forward a right on the basis that they were the owners of the property, later on after the death of Ramaswamy Gounder they sought to establish their right to recover the property as heirs. The cause of action is the same throughout, viz., the invalidity or the fraudulent character of the transaction. This is a case where the rights of the parties have been determined as on the date of the cause of action. On the date of cause of action the first defendant did not have any right in the property and it is this which is being enforced in the appeal.
13. The learned Counsel for the appellant submitted that the plaintiffs are not the sole heirs of the deceased Ramaswamy Gounder and that the plaintiffs cannot be granted a decree as if they were suing in any representative capacity. It was pointed out that there was no question of any representative capacity in a suit like this. In one of the decisions relied on by the appellant himself and reported in Allam Gangadhara Rao v. Gollapalli Gangarao : AIR1968AP291 , the following passage occurs:
Of course where a number of persons are jointly entitled to the relief in respect of a transaction which one of them wishes to sue to enforce that relief, the proper course for him is to ask the other persons to join as co-plaintiffs, if they refuse to join in the suit as plaintiffs, they must be joined as defendants. What is necessary is that all the persons jointly interested must be on the record as parties in order to determine the disputes effectively and finally. Thus one member of a joint Hindu family cannot sue to recover any property belonging to the joint family without impleading the other members as parties to the suit. Where, however, he sues or is sued as manager of the joint family, it might not be necessary to add the other members as parties. It is also true that one of such co-owners can maintain an action against a trespasser without impleading the other co-owners as parties thereto.
Therefore, it is clear that a suit could be filed by a co-owner against a trespasser and it is not necessary that in such a case all the co-owners must join together or must be impleaded.
14. There is a well-settled principle that a Court can take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances so as to not to drive them to a fresh litigation and so as to do complete justice between the parties. This principle has been laid down by the Supreme Court in Shikharchand v. D.J. P. Karni Sabha : 3SCR101 . In that case it was pointed out as follows:
Ordinarily, a suit is tried in all its stages on the cause of action as it existed on the date of its institution. But it is open to a Court (including a Court of appeal) to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation; or (3) to do complete justice between the parties.
This inherent power of the Court to give adequate relief to suitors in suitable cases in view of the changed circumstances after the filing of the suit so as to shorten the litigation has also been earlier brought aut in Mangarao v. Krishna Rao : AIR1965AP98 . If the appellant's plea were to be accepted in the present case then it would only be necessary for the plaintiffs to file a suit on the same ground, viz., that the conveyance in favour of the first defendant was a nominal or a fraudulent transaction and, therefore, invalid. There is no good served by merely allowing the parties to go to a fresh suit. Complete justice could be rendered in the present suit itself by granting the decree in the manner done by the lower appellate Court.
15. Though the plaintiffs had originally come forward with the suit on the basis that they along with the second defendant were the owners of the suit properties and that their father had no power to convey the property, still even after the finding that the father was the absolute owner of the properties, they could sustain the cause of action against the first defendant, as the first defendant is only in the position of the trespasser of the properties. Though he had taken a conveyance in his favour from Ramaswamy Gounder, the conveyance has been found to be a fraudulent transaction. The first defendant cannot resist the claim of the plaintiffs on the basis that they are the heirs of the said Ramaswamy Gounder. The fact that the other heirs of Ramaswamy Gounder have not been impleaded is immaterial because the present suit is against a trespasser and as already pointed out a co-owner can maintain a suit against a trespasser without impleading all the other co-owners.
16. For these reasons, the judgment and decree of the lower appellate Court is confirmed and the appeal is dismissed. There will be no order as to costs. No leave.