MANJAPPA MOOLYA Vs. RAMA BHANDARY

JUDGEMENT

(1.) This is a plaintiff's appeal from the decree of the District Judge who affirmed the decree of the court of first instance in the suit brought by the plaintiff for a declaration that the final decree made in a mortgage suit on January 31, 1957 did not bind him. That final decree was made in a suit brought by defendants 1 and 2 who were the mortgagees, under a mortgage deed executed in the year 1948 by a certain Guddu Hengasu who was the yajamanthi of an aliyasanthana family and by defendants 3 to 11 who are her children or grandchildren, and others. On September 20, 1956 there was a preliminary decree which was followed up by a final decree for sale made on January 31, 1957. Meanwhile, Guddu Hengasu had died on October 13, 1956 and a final decree was made as if she was still alive. Defendants 1 and 2 executed the decree and brought the mortgaged properties to sale and purchased them on April 8, 1958. It was as a sequel to this that the suit out of which this second appeal arises was brought by the plaintiff for a declaration that, since he was not impleaded as a party to the proceedings in which the final decree was made, although he succeeded Guddu Hengasu as the yajaman, the decree did not bind him.

(2.) The suit was resisted by defendants 1 and 2 on more than one ground. It was said that the plaintiff was not the son of Guddu Hengasu and so was not her legal representative who could have been brought on the record as such. It was also contended that the plaintiff was not in possession of the properties when he brought his suit and that the suit for a bare declaration and injunction could not be sustained. On the question whether the plaintiff was in possession of the suit properties on the date of the institution of the suit, neither the court of first instance nor the lower appellate court recorded any finding. But their finding was that the plaintiff was the son of Guddu Hengasu and was her legal representative.

(3.) But that finding, according to them did not enable the plaintiff to overcome the decree which had been made with defendants 3 to 11 on the record in the mortgage suit. This conclusion was reached by the application of the familiar doctrine that if there was adequate representation of the estate, though not all the legal representatives of the person who died during the pendency of the suit were brought on record, the decree made in such a suit would bind those who were not brought on the record, if there was no fraud or collusion and the decree was obtained bona fide. So it was that the plaintiff's suit failed in the court of first instance and in the first appellate court, and, he appeals.