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Pendela Adi Lakshmi Vs. Gandikota Durgamma - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1935Mad737; 159Ind.Cas.129
AppellantPendela Adi Lakshmi
RespondentGandikota Durgamma
Cases ReferredVirchand Vajekeran Shet v. Kondu
Excerpt:
- - act, did not arise in that case, but the principle it laid down, if accepted, will show that in a case like the present the added parties cannot rely on section 22, lim......have them added as parties and they were so added on 12th february 1912. it was contended by the added defendants, that the suit was barred as against them under section 22, lim. act, 1908: see the head-note. it was held thatas the suit was to enforce a mortgage lien binding on the whole property in the hands of any heir of the mortgagor, the addition of the parties after the expiry of the time did not involve the dismissal of the suit under section 22, lim. act, 9 of 1908.3. the counsel for the appellants distinguishes this case on the ground that the-suit therein related to a mortgage and as every part of the mortgaged property, in whomsoever's hands it may be, was-liable for the entire claim, the addition of the 'added defendants' after the expiry of the time was not considered.....
Judgment:

Madhavan Nair, J.

1. Defendants 2 and 3 are the appellants. The second appeal arises out of a suit instituted by the plaintiff for recovery of money due under a promissory note, dated 15th October 1923, executed by one Lakshmikantham deceased, the husband of defendant 1. Defendant 1 was sued as Lakshmikantham's legal representative. Defendant 2 is the daughter of defendants 1 and defendant 3 is defendant 2'sson. Lakshmikantham died in July 1924, leaving a will Ex. B. Under it defendants 1 and 2 got a life interest in a house. Defendant 1 also got a life interest in a share of the scheduled property, defendant 3 getting two shares. It is not necessary to refer to the other items of the will. The suit was filed on 12th October 1926, just three days before the suit note became barred. It was originally instituted only against defendant 1. She pointed out that she had no interest in the properties and that defendants 2 and 3 should be made parties to the suit. The plaintiff then amended the plaint and made them parties on 3rd May 1927. It will be observed that by this time the promissory note had become barred. Section 22, Clause 1, Lim. Act, says:

Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party.

2. The contention of defendants 2 and 3 (the appellants), is that the suit should be dismissed as against them having regard to Section 22, Lim. Act, because, by the time they were added as parties the promissory note had become barred. This contention was rejected by the lower Court and a decree was passed against them, relying on a decision in Virchand Vajikeran Shet v. Kondu 1915 Bom. 272. This contention is repeated in second appeal. It may be mentioned that the lower Court accepted the statement of the plaintiff that when the suit was instituted, she was not aware of the will. It is clear that but for the will defendant 1 was the heir and representative of the estate of the deceased Lakshmikantham, and it is not disputed that she was sued in that capacity. In Virchand Vajikeran Shet v. Kondu 1915 Bom. 272, one K, a Mahomedan, effected a simple mortgage in favour of Y on 23rd June 1899, the mortgage debt becoming due on demand which was made on 1st January 1900. K having diod a suit for sale of the mortgaged property was instituted by V against his minor son as a party in possession of the property on 23rd June 1911. The minor's guardian having alleged that K left other heirs, a widow and two daughters, V applied on 29th January 1912 to have them added as parties and they were so added on 12th February 1912. It was contended by the added defendants, that the suit was barred as against them under Section 22, Lim. Act, 1908: see the head-note. It was held that

As the suit was to enforce a mortgage lien binding on the whole property in the hands of any heir of the mortgagor, the addition of the parties after the expiry of the time did not involve the dismissal of the suit under Section 22, Lim. Act, 9 of 1908.

3. The counsel for the appellants distinguishes this case on the ground that the-suit therein related to a mortgage and as every part of the mortgaged property, in whomsoever's hands it may be, was-liable for the entire claim, the addition of the 'added defendants' after the expiry of the time was not considered material by the Court. Respondent 1's-counsel argues that the true principle on which the decision is based is that the suit being against the estate of the deceased it was sufficiently represented by the minor son against whom it was instituted and that the other defendants must be deemed to have been potentially parties to it as originally constituted. The principle enunciated by the respondent's counsel finds support in a decision of this Court in Chaturbhuja Dass Kushal Doss & Sons v. Rajamanikka Mudali 1930 Mad. 930. The necessary facts and the point decided in the case are thus stated in the head-note:

A debtor died leaving a will by which he bequeathed his estate to his nephew subject to certain dispositions. The widow of the debtor disputed the will. In ignorance of the will and bona fide believing the widow to be the proper legal representative, the creditor brought a suit against her alone, and obtained an ex parte decree for the debt to be paid out of her husband's assets in her hands. The widow was in possession of a few items of the estate. In a suit by the nephew to set aside the decree and the sale in execution thereof, it was held that as the creditor bona fide believed the widow to be the proper legal representative and as she was then interested in defending the estate and sufficiently represented the estate and as he got his decree without any fraud or collusion with her, it was binding on the plaintiff, the residuary legatee, under the will.

4. No doubt, the application of Section 22, Lim. Act, did not arise in that case, but the principle it laid down, if accepted, will show that in a case like the present the added parties cannot rely on Section 22, Lim. Act, because the estate was sufficiently represented by the widow in the suit as it was originally constituted, and as such, defendants 2 and 3 were potentially parties to the suit and therefore they cannot be heard to say they were added as parties only when their names were actually entered on the record after amendment. The whole question for consideration is whether the plaintiff believed defendant 1 to be the proper legal representative of the deceased and was interested in defending the estate. If she bona fide believed that defendant 1 was the legal representative, and if she was interested in defending the estate, then according to the decision in Chaturbhuja Doss Kushal Doss & Sons v. Rajamanikka Mudali 1930 Mad. 930 she may be said to have sufficiently represented the estate and the decree will be binding on the added parties, provided of course that the deree was obtained without any fraud or collusion. I have already stated that when the plaintiff in this case instituted her suit she did not know anything about the existence of the will. But for it defendant 1 was the legal representative of her deceased husband and the suit was directed against her in that capacity. There is nothing to show that she was a party to any fraud or collusion. In my opinion the present case falls within the principle of the decision in Chaturbhuja Dass Kushal Doss & Sons v. Rajamanikka Mudali 1930 Mad. 930; and the same principle may be said to be the basis of the decision in Virchand Vajekeran Shet v. Kondu 1915 Bom. 272 also.

5. The learned Counsel for the appellants relied on a decision in Northeran Bank v. Ramesh Chander 1932 Lah. 314. In that case the plaintiff in a suit on a promissory note executed by two persons, impleaded as defendants one of the executants and widow of another (he having died in the meantime) and on a denial by the widow that she was the legal representative of the husband substituted the name of the minor son of the deceased in place of the widow's name but after the period of limitation for the suit had expired. It was held that Section 22, Lim. Act, was applicable to the facts of the case and the suit was barred by limitation and that the question whether the plaintiff had committed a bona fide mistake was immaterial. This case no doubt supports the appellants but is distinguishable on the facts of the present case. It would appear from the report that when the widow represented that she was not the legal representative of her husband her name was struck out and it was then that Romesh Chunder's name was added. By that time the period of limitation prescribed for the action had expired. When Romesh Chunder's name was added there was no one already on the record to re present the estate of his deceased father. It follows therefore that a decree passed without the addition of Romesh Ohunder to the list of defendants could in no manner have been binding on Romesh Ohunder, because there was nobody already on the record to represent the estate of Romesh Chunder potentially. This I believe is the true basis of the decision, for the learned Judges after referring to Virchand Vajekeran Shet v. Kondu 1915 Bom. 272 distinguish the case before them pointing out this special feature. Eeferring to Virchand Vajekeran Shet v. Kondu 1915 Bom. 272 the learned Judges stated that

The suit was to enforce a mortgage lien binding on the whole property in the hands of any heir o the mortgagor and it was held that the addition of parties after expiry of the time did not involve the dismissal of the suit under Section 22, Lim. Act, on the ground that a decree for sale of the property would have been binding on the other heirs even if they had not been added as parties.

6. Then they proceeded to state what I have already mentioned, that in the case before them

a decree passed without the addition of Romesh Chunder to the list of defendants could in no manner have been binding on Romesh Chunder.

7. In the case before us, when the appellants were made parties, the widow was already on the record representing the estate. If this is not the true distinction, and if the decision is based on another reasoning found stated in the course of the judgment, viz., there is no warrant at all for the position that a suit can be brought against the estate of the deceased person as an independent entity, irrespective of the person entitled to represent the estate. Mr. Lakshmanna says its correctness is open to question according to the decisions of this Court. This argument is not without force but it is not necessary to discuss the point any further. In the circumstances of the present case, the estate of Lakshmikantham was sufficiently represented by the widow and a decree passed without the addition of defendants 2 and 3 to the list of defendants would have been binding on them; in other words, I hold that the estate was sufficiently represented by defendant 1 for the purposes of the suit, and defendants 2 and 3 in the circumstances may be considered to have been potentially parties to the suit when it was originally instituted. For these reasons they cannot be said to have been added as new parties to the suit and the suit therefore cannot be dismissed against them. In my opinion Section 22, Lim. Act, is not applicable to the facts of the case and the suit as against defendants 2 and 3 is not barred by limitation. The second appeal is dismissed with costs.


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