VENKATARAMA PILLAI Vs. PARASURAMA PILLAI

JUDGEMENT

(1.) THE respondent in both the petitions was the second defendant in O.S. No. 575 of 1942 which was filed by his mother, Viradambal. He had a brother Chenna Pillai who died in 1939. Chenna Pillai, the respondent and their half brother Govinda Pillai, the first defendant, had partitioned their properties during the life -time of their father. The case of the respondent's mother was that Chenna Pillai was solely entitled to the suit property as it had fallen to his share at the partition and that after his death she had the right to enjoy it as he died a bachelor. It was also her case that the respondent (second defendant), the first defendant and his son, the third defendant, and defendants 4 and 5, sons of the respondent trespassed upon the suit property and alienated portions of it to defendants 6 to 8 without her knowledge. She therefore prayed for a declaration that she was entitled to a life interest in the suit property and that the alienation by defendants 1 to 5 was not binding on her. She also prayed for possession. Defendants 1 and 3 contested the suit while the second defendant (respondent) supported his mother. The suit was dismissed for default of appearance of Viradambal and she presented an application for setting aside the order of dismissal. While that application was pending she died on the 16th of November, 1943. The respondent thereupon filed two applications before the District Munsiff. He filed LA. 198 of 1944 for recognising him as the legal representative of his deceased mother on the ground that he being the full brother of Chenna Pillai was entitled to the property after the death of the mother to the exclusion of the first defendant. He filed LA. No. 199 of 1944 for his being transposed as the plaintiff and for permission to continue I.A. No. 1104 of 1943 for setting aside the order dismissing the suit. The learned District Munsiff dismissed both the applications on merits in a common order. He then dismissed L.A. No. 1104 of 1943 without going into the merits. With regard to I.A. Nos. 198 and 199 of 1944 he held that the petitioner was not the only legal representative and that he should not be transposed as the plaintiff in view of the fact that his interest was not identical with that of his mother who had claimed only a life interest and had alleged that the respondent was one of the alienors. The respondent filed an appeal only in respect of the application to recognise him as the legal representative. He appealed also against the order in I.A. No. 1104 of 1943 but he did not appeal as far as the application for transposing himself as plaintiff was concerned. The learned District Judge allowed the appeals holding that the respondent was the sole representative of his mother, being the full brother of Chenna Pillai. He therefore directed the District Munsiff to take on file the application to set aside the order of dismissal of the suit and dispose of it on merits.

(2.) IT is argued on behalf of the petitioner that though the respondent is the sole heir of Chenna Pillai and the view taken by the District Munsiff that he was not the sole heir is not correct, still the order of the District Munsiff has to be regarded as final as it was an order under Order 22, Rule 3 of the Code of Civil Procedure and therefore not appealable and the learned District Judge consequently had no jurisdiction to set it aside. As regards the appeal against the order in I.A. No. 1104 of 1943 the contention is that the learned Judge committed a material irregularity in the exercise of his jurisdiction. It is said that the respondent could not be permitted to continue the application to set aside the order of dismissal of the suit as the trial Court had dismissed both the applications and the plaintiff had not appealed against the order declining to transpose him as the plaintiff. It is further pointed out that the learned Judge did not take into consideration the fact that Viradambal had in her suit alleged that the respondent was one of the persons who had trespassed on the property and had effected alienations. The contention is that if this point had been considered by the learned Judge he would not have interfered.

(3.) THE application filed by the respondent to bring him on record as the legal representative is in my opinion clearly an application under Rule 3 of Order 22. In the affidavit accompanying the application it is stated as follows: