MASULIPATAM MUNICIPALITY Vs. RALLABHANDI VENKATAPPAYYA

JUDGEMENT

(1.) Masulipatam Municipality represented by the Commissioner is the appellant in Appeal No. 366 of 1956 and the petitioner in CRP Nos. 805 and 806 of 1956, The appeal as well as the revision petitions arise out of O.S. No. 41 of 1952 on the file of the Subordinate Judges Court, Masulipatam instituted by Rallabandi Kama Chandrayya (since deceased) for appointment of an administrator to take possession of all moveable and immoveable properties of late J.V. Subba Rao and to pay off the legacies to the plaintiff and other legatees mentioned in plaint D schedule and for carrying out all the objects and directions set forth in the will of the testator D/- 20-6-1942 and marked as Ex. A-2. The suit was originally tiled against three defendants. The 1st and 2nd defendant were executors and trustees of the estate of late J.V. Subbarao. The 3rd defendant claimed that he was the adopted son of late J.V. Subbarao. The appellant was added as the 4th defendant by reason of the order passed on I.A. No. 1648 of 1952 dated 10-1-55.The 1st plaintiff having died during the pendency of the suit, his son was added as the 2nd plaintiff. The administration suit was instituted on 12-4-1952. On the application of the appellant 4th defendant, the Municipality was added as a party, as already stated, on 10-1-55. The legacy amount due to the plaintiff was tendered on 29-2-1952 but still the suit was instituted for administering the estate of late J.V. Subbarao. Along with the written statement, the amount due to the plaintiff was deposited into court on 9-12-1952. On 24-2-1955, the 2nd plaintiff made an endorsement on the plaint in the following terms: "Plaintiff No. 2, added as legal representative of plaintiff No. 1, admits that his claim is adjusted and that he does not press his suit so far as he is concerned."Soon after, the 4th defendant filed I.A. No. 314 of 1955 under Older 1, Rule 10 and Section 151 C.P.C. to transpose him as third plaintiff and permit him to prosecute the suit. I.A. No. 315/55 was filed by him under Order 1 Rule 10 C.P.C. to transpose him as petitioner in I.A. No. 476 of 1952 filed by the 1st plaintiff for permission to sue under Order 1 Rule 8 C.P.C. on behalf of the legatees under the will of late J.V. Subbarao. The learned Subordinate Judge dismissed the two applications and permitted the plaintiff to withdraw the suit as per the endorsement on the plaint. The 4th defendant, aggrieved by the order passed by the Subordinate Judge, Masulipatam, has preferred the appeal against the decree and the revision petitions as against the orders in his applications.

(2.) Sri A.S. Chowdary, the learned Addl. Government Pleader, contended that the court below erred in dismissing the two applications and not transposing the 4th defendant as the 3rd plaintiff in the suit. He also contended that the court below erred in permitting the 2nd plaintiff to withdraw the suit. So, the questions that arise for consideration in the appeal and the revision petitions are: (1) whether the suit comes to an end when the 2nd plaintiff expressed his unequivocal intention to withdraw the suit? (2) Whether, having regard to the fact that the suit is an administration suit, the 4th defendant is to be treated as being in the position of a plaintiff and transposed as the 3rd plaintiff? (3) Whether, in any event, under the provisions of Order 1, Rule 10 C.P.C. the 4th defendant is to be transposed and added as the 3rd plaintiff ?

(3.) It is clear from the allegations in the plaint that the suit was filed by one of the legatees for the administration of the estate of late J.V. Subbarao under his will dated 20-6-1942. In paragraph 6(e) the plaintiff alleged that the testator intended to construct four gates in the Robertsonpet, Masulipatam, to be named after his parents and himself and his wife and directed his executors and trustees to construct them from out of the estate funds. In paragraph 11, he stated that as a member of the public and as a rate-payer of Masulipatam Municipality, he is interested in working out the directions contained in the will in respect of the construction of the gates in Robertsonpet. He also filed an application under Order 1, Rule 8 C.P.C. to permit him to sue on behalf of all the legatees mentioned in Schedule D. The court ordered notices to the persons interested by advertisement in Krishna Patrika, but no final order under Order 1, Rule 8 C.P.C. was passed entitling the 1st plaintiff to sue on behalf of all the legatees.As there was a settlement between the two executors impleaded as defendants 1 and 2 and the 3rd defendant, the estate was handed over to the 3rd defendant. As stated supra, the amount due to the plaintiff was deposited into court on 9-12-1952. The 4th defendant was added as a party only on 10-1-1955.