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Pisupati Venkata Rangayya Vs. Gandavarapu Narasamma (Dead) and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1918Mad147; 44Ind.Cas.852
AppellantPisupati Venkata Rangayya
RespondentGandavarapu Narasamma (Dead) and anr.
Cases ReferredKhiarajmal v. Daim
Excerpt:
civil procedure code (act v of 1908), section 11 - res judicata--decree against person impleaded as legal representative of deceased defendant, whether binding on persons claiming through deceased. - .....and 3rd defendants were exonerated, the suit against them being dismissed with costs. the present suit is brought against all these persons for mesne profits2. against the 2nd defendant the suit has been dismissed on the ground that the decree obtained by the plaintiff in a suit for specific performance gave no relief against the 2nd defendant who in fact was exonerated, and the subordinate judge says that, as the plaintiff adduced no evidence independently of the decree of his right to the property, he is not entitled to mesne profits. it ought to be mentioned that the mesne profits claimed are subsequent to the suit for specific performance and the 2nd defendant, it is admitted, has been in possession of the property. the argument on behalf of the 2nd defendant is that she was the.....
Judgment:

1. The plaintiff, who is the appellant in the second appeal, had brought a suit against the husband of the first defendant for specific performance of an agreement to sell the property in dispute. The husband of the first defendant died pending the suit, and the 1st, 2nd and 3rd defendants were brought on record by the plaintiff as the deceased's legal representatives, the 1st defendant being the widow, the 2nd defendant the daughter-in-law, and the 3rd defendant the mother of the deceased. The plaintiff, in making the application, stated that he was informed that there had been a Will executed by the deceased owner of the property in favour of the 2nd and 3rd defendants. The 2nd defendant, however, did not appear and the 1st and 3rd defendants alleged in their written statement that they were not liable to any decree inasmuch as the property had been bequeathed solely to the 2nd defendant. The District Munsif who tried the suit, however, held that it was not proved that the 2nd defendant derived the property under the Will of the deceased, and, as we gather, no Will was in fact put into evidence. There was a decree given to the Plaintiff for specific performance as against the 1st defendant as representative of the deceased and the 2nd and 3rd defendants were exonerated, the suit against them being dismissed with costs. The present suit is brought against all these persons for mesne profits

2. Against the 2nd defendant the suit has been dismissed on the ground that the decree obtained by the plaintiff in a suit for specific performance gave no relief against the 2nd defendant who in fact was exonerated, and the Subordinate Judge says that, as the plaintiff adduced no evidence independently of the decree of his right to the Property, he is not entitled to mesne profits. It ought to be mentioned that the mesne profits claimed are subsequent to the suit for specific performance and the 2nd defendant, it is admitted, has been in possession of the property. The argument on behalf of the 2nd defendant is that she was the proper legal representative of the deceased as she was the sole legatee under the Will, and as the suit for specific performance was dismissed against her, the decree which the plaintiff obtained for specific performance did not bind her. We cannot hold this contention to be sound. She was brought on record and it was for her to claim that she represented the estate of the deceased, but she failed to do so and a decree was passed against the widow of the deceased as representing his estate in that suit. The decree for specific performance was with respect to this very property in a suit which had been instituted against the owner of the property, and we are of opinion that the decree will bind all persons claiming through the owner. The principle of law laid down in Kadir Mohideen Marakkayar v. Muthukrishna Ayyar 12 M.L.J. 368 applies to the facts of this case, and we do not think that the decision in Khiarajmal v. Daim 1 C.L.J. 534 of the Privy Council has any application. In the last case the person who successfully contended that he was not bound by the decree had not in fact been properly brought on the record in the suit. We hold, therefore, that the second appeal must succeed, and there will be a decree as against the 2nd defendant also for the amount claimed in the plaint with costs throughout.


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