MUNISETTAPPA Vs. B KRISHNAPPA

JUDGEMENT

(1.) The appellants are the wife and sons of the deceased-plaintiff in O.S. 502/81 on the file of XII Addl. City Civil Judge, Bangalore, and being aggrieved by the dismissal of the application filed by them to be brought on record in the place of the deceased-plaintiff and the further order that the suit stood abated, have preferred this appeal.

(2.) To understand the point in controversy only a few facts need be stated. The deceased-plaintiff filed the aforesaid suit for specific performance of the oral agreement dt. 16-05-1968 to reconvey the suit property for a sum of Rs. 5,000/-. The case put forward by him is that the suit property belonged to him absolutely, the same having come to his share in a partition between him and one Krishnappa and he got constructed a house on the said site and as he was in need of Rs. 5,000/- to complete the plastering, etc. in respect of the said construction, he raised loan of Rs. 5,000/- from the 1st defendant and on his insistence he executed a nominal sale deed dt 16-5-1968 in respect of the suit property. It was stipulated between the parties that the plaintiff should pay interest on the loan amount at 2% per mensem. The 1st defendant orally agreed to reconvey the suit property in his favour within a period of 12 years from the date of the nominal sale deed and believing the assurances held out by the 1st defendant, the plaintiff was paying interest regularly and he continued in possession of the suit property. During the 3rd week of July, 1970, the plaintiff requested the 1st defendant to accept the principal amount of Rs. 5,000/- and to reconvey the property and at that he stated that he could never dream of getting the property reconveyed and also told that he had already sold the property to somebody else. After verification he found that the lst defendant had executed a sale deed in favour of the 2nd defendant in respect of the suit property on 17-3-1975 for a sum of Rs.12, 000/-. Therefore, the plaintiff has sought for specific performance of the oral agreement of reconveyance adverted to above.

(3.) During the pendency of the suit, the plaintiff died and the appellants filed an application under Order 22, Rule 3, C.P.C. for being brought on record in place of the deceased-plaintiff. This application was opposed by the 2nd defendant on the ground that the alleged right of getting the suit property reconveyed was purely personal to the original plaintiff and it did not create any proprietary right and, therefore, the L.R. application was not maintainable. The learned Civil Judge held that the right to sue did not survive after the death of the original plaintiff and that, therefore, the application of the appellants was not maintainable and dismissed the same and further held that as the sole plaintiff had died and the right to sue did not survive, the suit abated.