MOIDEENKUTTY Vs. SUBHADRA

JUDGEMENT

(1.) In this second appeal, on behalf of the 34th defendant appellant, Mr. Mohammed Naha, learned counsel challenges the concurrent decisions rendered by the subordinate courts As against the appellant, ignoring his claim to have the transaction under Ext. B 106 recognised, and rejecting the claim made by him for dismissal of the plaintiff's suit for partition.

(2.) It is necessary to state a few facts leading up to this litigation. One Malu was possessed of the suit properties, which are 6 in number. She died in 1938. Her husband is the 3rd defendant, and she left three sons and three daughters. The three sons are defendants 4 to 6, and the three daughters are Sarojini, Subhadra and the 1st defendant. We are particularly referring to the names of the two daughters because it is necessary to advert to and deal with the contention that has been raised by Mr. Naha, learned counsel for the appellant that the plaint has not been properly verified and signed according to law. The present suit was instituted on 16th July 1954 by Sarojini, one of the daughters of Malu. The suit itself was for partition and separate possession of her 1/3 share in the suit properties. Her claim was that the suit properties belonged to her mother Malu and they are her Sthreedhanam properties, and that the heirs to the said properties are herself and her two sisters, who were then defendants 1 and 2 to the action. That is, according to the plaintiff, neither her father, the 3rd defendant, nor her brothers, defendants 4 to 6, have any right or title to these properties left by her mother.

(3.) After the suit was filed by Sarojini, it is seen that the original 2nd defendant, namely Subhadra, filed an application, I. A. 2167/56, for transposing her as additional plaintiff to the action. The prayer in the said application appears to be very losely worded, and the application itself purports to be one under O.13 R.7, which is obviously a mistake, and it can only be an application under O.1 R.10. But whatever it is notwithstanding certain objections that appear to have been raised by the other parties, the application filed by Subhadra, the 2nd defendant, to transpose her as plaintiff was ordered by the court. In particular, it is seen that the original plaintiff, namely Sarojini, does not appear to have had any objection to the application filed by her sister Subhadra being allowed. But ultimately, as the plaint as it now stands, it is seen that Subhadra has been transposed as plaintiff, and the original plaintiff who instituted the suit, namely Sarojini, was transposed as the 2nd defendant. As to how exactly it happened, we are not able to find out from the records. Therefore, as it is, the suit is now continued by Subhadra, by. virtue of the order passed in I. A. 2167/56.