JOSEPH Vs. JOSEPH

JUDGEMENT

(1.) THERE can be no doubt that the suit was properly allowed by the court below. For the 1st defendant must suffer the consequence of his own default to implead all the heirs of Chacko in his suit O. S. 36. The decree he had obtained against some only of the heirs cannot be binding on the rest however few they may be, however little interest they may for themselves represent. The doctrine of substantial representation of a deceased opponent's estate cannot apply to a suit when it is laid. We are not concerned with any question of execution of a properly obtained decree either where the doctrine has been appealed to with more or less success. Vide A. I. R. 1956 T. C. 147. The result is that the plaintiffs 1 and 2 are entitled to have a declaration of their fraction of title in their capacity as the same of the sons of Chack o. Any how they are entitled to resist the execution of the decree in O. S. 36 by way of delivery. The obstruction order was therefore wrong and was properly set aside by the lower court.

(2.) THE other point but of substance was raised as follows : - In granting decree against the 1st defendant the court below has made him liable for the costs of the 2nd defendant, the Madras State, of both the courts below. This portion of the decree is not justifiable. After all the Madras State was only a co-defendant with the 1st defendant and there was no reason why he should pay their costs practically as they supported him.