THAYAMMAL Vs. RANGASWAMI REDDY AND SEVENTEEN ORS.

JUDGEMENT

(1.) THIS appeal against the decree and judgment of the learned Subordinate Judge of Coimbatore involves an interesting question of law on which there is no direct authority. The facts necessary for a disposal of this appeal are: One Rama Reddi died in or about 1900, leaving behind him surviving his widow, Sinna Gangammal and his mother Peria Gangammal. A posthumous daughter, Nanjammal, was born to him subsequently. He left behind him considerable properties. Sinna Gangammal, as the widow, succeeded to Rama Reddi's estate. She died in or about 1922, and after her death, Nanjammal, her daughter, succeeded. She died on 1st May 1934. She had two sons, Rangaswami Reddi and Muthuswami Reddi, who became entitled to the estate as reversioners to their maternal grandfather, Rama Reddi. Sinna Gangammal and Nanjammal had made alienations of the properties which had belonged to Rama Reddi and had devolved on them. By two sale deeds, dated 31st March 1937, and 8th April 1947, Rangaswami Reddi on his behalf and as guardian of his minor brother, Muthuswami Reddi, conveyed all the properties to which they were entitled as reversioners to the Appellant before us, Thayammal. In the first of these sale deeds exhibit A. -3, it was provided that the purchaser should file a suit in pursuance of the sale and obtain delivery of possession and that the two vendors shall also join with her and file the suit as Plaintiff's and see that possession was given to the purchaser. It was further provided that the vendors themselves shall collect the income from the properties from the date of their mother's death till the date of the sale. On 9th April 1947, the suit out of which this appeal arises, was filed by three Plaintiffs, namely, Thayammal, the purchaser, Rangaswami Reddi and Muthuswami Reddy. Muthuswami Reddi was still a minor and was represented by Rangaswami Reddi as his next friend. Paragraph 14 of the plaint contained the following prayers:

(2.) THE suit, as already mentioned, was filed on 9th April 1947, more than twelve years after the date of the death of the last limited owner on 1st May 1934. It was, therefore, barred by limitation. But it was alleged in the plaint that the second Plaintiff, Rangaswami Reddi, was born on 19th December 1926, and the third Plaintiff, Muthuswami Reddi was born on 7th April 1931, and as both of them were minors when the reversionary right opened to them in May 1934; the suit was not barred by limitation, under Sections 6, 7 and 8 of the Limitation Act.

(3.) ON 7th July 1949, evidently in pursuance of the deed of relinquishment, Muthuswami Reddi (3rd Plaintiff), filed an application, Interlocutory Application No. 1319 of 1949, praying that the Court may be pleased to strike out his name as a co -Plaintiff. In support of this application, he filed an affidavit in which he stated that he had attained majority on 8th April 1949, that he was not willing to prosecute this suit, that the sale in favour of the 1st Plaintiff was not binding on him, that he had given up all his rights to the 1st Defendant, and that it was, therefore, just and necessary that he should be permitted to withdraw from the suit and the suit -claim so far as it related to him be dismissed. On behalf of Plaintiffs 1 and 2, a counter -affidavit was filed by the 1st Plaintiff's husband denying the material allegations made by Muthuswami Reddi and stating that the, Petitioner could give up, if he wanted, the relief, namely, the recovery of a moiety of the mesne profits due from 1st May 1934, to 31st March 1947, but not anything else, and it was submitted that the Petitioner was a necessary and proper party to the suit, and in case he was not willing to be a Plaintiff, he should be transposed as Defendant On 18th July 1949, the learned Subordinate Judge passed the following order: