KRISHNAMURTHI NAIDU Vs. RAMAKRISHNA NAIDU AND ORS.

JUDGEMENT

(1.) THE plaintiff is the appellant in the second appeal and his suit for recovery of possession of 1 acre 58 cents in S. No. 160/1 in the village of Melur described by boundaries in the plaint schedule was dismissed by the Courts below. Hence this appeal.

(2.) ONE Muthukrishna had two sons, Srinivasalu and Ramakrishna. Ramakrishna is the first defendant in the present suit. His son Pothurajalu is the.second defendant. Srinivasalu had two sons Venkatakrishna and Krishnamurthi. Krishnamurthi is the present plaintiff. Venkatakrishna died in 1935. In 1917, Srinivasalu instituted a suit for partition, O.S. No. 190 of 1917, on the file of the District Munsiff's Court of Srirangam, and impleaded in that suit Muthukrishna also as a party. In that suit 2 acres 39 cents in S. No. 160/1 of which the present suit property forms a part was not included, presumably because the property was purchased by Muthukrishna in his own name. The suit was decreed. Later, Pothuraju, the present second defendant, instituted another suit for partition, O.S. No. 202 of 1929, against Muthukrishna, Ramakrishna, the present first defendant and others. That suit comprised all the properties including 2 acres 39 cents (S. No. 160/1). There was a preliminary decree for partition in that suit decreeing partition according to the shares to which each was entitled and Muthukrishna died after the preliminary decree in that partition suit. He executed a will dated 16th January, 1929, whereunder he made a bequest among others of 2 acres 39 cents in S. No. 160/1 to the present plaintiff, Krishnamurthi. After the death of Muthukrishna, the partition suit, O.S. No. 202 of 1929, was continued after impleading Lakshmi, his widow, as a party. It must be stated that the ibequest in favour of the plaintiff under the will of Muthukrishna was to obtain possession of the property after the death of Lakshmi as a life interest was created in favour of Lakshmi under, the said will. As Muthukrishna died after the preliminary decree and as Lakshmi was added as his legal representative and as the plaintiff had only a right to possession after the death of Lakshmi, apparently the title based on the will in respect of the 2 acres 39 cents was not and could not be put forward by the present plaintiff in that suit, O.S. No. 202 of 1929. In due course there was a final decree in that partition suit in which the properties were divided and allotted to the various sharers in accordance with the directions, contained in the preliminary decree. In 1936, Ramakrishna, the present first defendant, instituted a suit, O.S. No. 17 of 1936, against the plaintiff in respect of the right to management of certain charities belonging to the family. That suit did not proceed to trial and there was a compromise decree in that suit on 21st September, 1936 (Ex. P -4). Under this compromise, Ramakrishna, the present first defendant, agreed to recognise the rights of the plaintiff, the present appellant under the will of Muthukrishna. The portion of the compromise relating to this -matter is as follows:

(3.) THE claim however against the first defendant stands on a different footing. In O.S. No. 202 of 1929 the claim of the present plaintiff based on the will of Muthukrishna could not be put forward as he was not impleaded as the legal representative of Muthukrishna but his widow Lakshmi was impleaded and even if he was impleaded it was impossible for him to have raised the question of title to the property under the will as the only question in issue then was as between Ramakrishna and other members as to whether the present suit property was his self -acquired property or not. Except the decree in the suit we do not have any other record, of that suit, i.e., either the pleadings or the judgment, to indicate what exactly the contentions of the parties were in that litigation. We may assume -that that suit decided or at any rate proceeded on the. footing that this item also -was joint family property and not the self -acquired property of Muthukrishna. to which he was solely entitled. That implication it is that helps the second defendant in retaining his one -third share in the present suit. It is open to Ramakrishna or other members who are in possession of this item to agree to treat the will as valid notwithstanding the implied finding, if one there was, in O.S. No.. 202 of 1929 that the property was the joint family property and not the self -acquired: property of Muthukrishna. This admission so far as the first defendant is concerned is contained in the compromise decree in O.S. No. 17 of 1936. It is on the basis of this admission that the present suit was instituted by the plaintiff to recover possession of the property from the first defendant. The view, therefore, of the Courts below that the implied decision in O.S. No. 202 of 1929 stands in the way of the plaintiff recovering possession of the one -third share in S. No. 160 /1 in the possession of the first defendant seems to me to be clearly wrong.