KALI PACHI Vs. MUTHAMMAL

JUDGEMENT

(1.) The additional plaintiffs 2 to 8 are the appellants. In a chitty conducted by the first plaintiff in the case, a half ticket was subscribed for by the first defendant who prized it at the first drawing itself. On receiving the prized amount the chitty hypothecation bond Ext. A was executed in favour of the first plaintiff by defendants 1 to 3 jointly securing the suit properties for the future subscriptions payable towards the ticket that stood in the name of the 1st defendant. On the allegation that the defendants committed default in the payment of the subscriptions from the 6th instalment onwards the present suit was instituted by the first plaintiff for recovery of the future subscriptions in a lump due under Ext. A from the defendants and as a charge on the suit property. During the pendency of the suit the first plaintiff died and the additional plaintiffs 2 to 8 were impleaded as his legal representatives. Defendants resisted the suit and denied the status of the additional plaintiffs 2 to 8 as the legal representatives of the first plaintiff and contended that they were not entitled to maintain the suit and to get a decree for the suit amount. It was also contended that the chitty collapsed on account of the default of the foreman and that the claim for future subscriptions in a lump was unsustainable. The interest claimed was also stated to be excessive. The amount due to the foreman on the basis of a correct calculation was put down as Rs. 23 3/4 only. On these contentions necessary issues were raised and the case went on trial and at the final hearing the Trial Court considered and decided only the question of the additional plaintiffs competency to maintain the suit. This question was decided against them and on that basis the suit itself was dismissed. That decree was confirmed by the lower appellate court. The correctness of this decision is challenged in this second appeal.

(2.) It is urged on behalf of the appellants that the question as to whether the additional plaintiffs are or are not the legal representatives of the deceased first plaintiff was agitated and decided at the early stage of the trial of the suit and as such the defendants were not entitled to reagitate the same matter at the final stage of the suit. When a party to the suit dies and the question arises as to who is his legal representative that question has to be determined by the court before further proceeding with the suit. The provision to that effect as contained in O. XXII R. 5 of the Code of Civil Procedure is mandatory. The courts final decision on that question is conclusive as between the parties to such a proceeding so far as the particular case is concerned. Such an order passed with notice to the parties concerned and after hearing them cannot be allowed to be questioned by any of them at any subsequent stage of the suit. The decision in Shaligram v. Mt. Bhurpati (AIR 1939 Nagpur 147) and Jyoti Prasad Singh v. Samuel Henry Seddon (AIR 1940 Patna 516) are also in support of this position. The additional plaintiffs 2 to 8 were finally recognised as the legal representatives of the deceased first plaintiff with notice to the defendants and also to the rival claimants who had come forward as the legal representatives of the first plaintiff and whose claim was supported by the defendants and after a due consideration of the tenability of the rival claim. The defendants had questioned the status of plaintiffs 2 to 8 by contending that the 2nd plaintiff is not the wife of the first plaintiff and that plaintiffs 3 to 8 are not children born to plaintiffs 1 and 2. According to the defendants one Parvathi Ponnamma is the wife of the first plaintiff and herself and her children are really the legal representatives of the first plaintiff. The said Parvathi Ponnamma and her children had filed a separate petition in this case as C.M.P. 4878 dated 27.5.1119 praying that they may be impleaded in the suit as the legal representatives of the first plaintiff. Thus they had entered into a contest with the additional plaintiffs 2 to 8 on the question as to who are the persons legally entitled to come in as the legal representatives of the deceased first plaintiff. But these rival claimants later on withdrew from the contest obviously for the reason that they felt that they could not substantiate their claim. It is seen that on 22.3.1120 these rival claimants filed C.M.P. 3290 withdrawing their payer in C.M.P. 4878 dated 27.5.1119. Accordingly C.M.P. 4878 was dismissed. The effect of that order is a negation of the claim of the petitioners Ponnamma and her children to come in as the legal representatives of deceased first plaintiff and to uphold the claim of the additional plaintiffs 2 to 8 as the true legal representatives of the first plaintiff. Since Ponnamma and her children had thus finally disappeared from the scene and the suit proceeded with the additional plaintiffs 2 to 8 on record as the legal representatives of the 1st plaintiff the defendants were certainly not entitled at the final stage to turn round and again support a non existing claim on behalf of Ponnamma and her children and to question the competency of the additional plaintiffs 2 to 8 to maintain the present suit. The lower courts certainly erred in permitting the defendant to re-agitate these questions at the final stage of the suit and in recording a decision against the additional plaintiffs and contrary to the decision which had already been arrived at by the court at a previous stage of the suit. In this view of the matter the question as to whether the evidence on record would support the finding recorded by the lower court does not arise for consideration. For the reasons already stated I am definitely of opinion that the lower courts finding against the additional plaintiffs on issue 1 in the case is unsustainable and that it has to be reversed. Accordingly I hold that the additional plaintiffs 2 to 8 are entitled to maintain the present suit and to get a decree for the amount that may be found to be due to the first plaintiff on the basis of the chitty hypothecation bond Ext. A. Regarding the actual amount thus due there is dispute between the plaintiffs and defendants and the question of such dispute is covered by issues 2 to 4. These issues have not been considered by the lower courts and hence the case has to be remanded to the Trial Court for fresh disposal after a due consideration and decision of these issues also.

(3.) In the result this second appeal is allowed and the decree of the lower court is reversed. The case is remanded to the Trial Court for fresh disposal in accordance with the law and in the light of the observations made above and after a due consideration and decision of issues 2 to 8 also. The court fee paid on the appeal memorandum in this case will be refunded to the appellant. Other costs will abide the final result of the suit.