THADUVAYI VENKATASUBBAMMA Vs. CHALUVADI VENKATA SUBBAMMA

JUDGEMENT

(1.) The simple Question in this second appeal is whether the suit of the respondent is barred by Order 2, Rule 2 C.P.C. There was an earlier partition suit filed on behalf of the minor through her fattier and now the respondent after she became a major has filed a suit with respect to three items of property which were left out in that suit. The appellant is the 3rd defendant who is the sister of the respondents husband. She claimed these properties as having been gifted to her by her father as Pasupukunkuma and that is the reason why they were not included by the respondent in the former suit. Alternatively she claimed title by adverse possession, it may at this stage be stated that the averment of oral gift to her is not pressed, nor is there any validity relating to adverse possession which has been found as a fact against the appellant by the first appellate court. Learned Advocate for the appellant contends that me first appellate Court is wrong in this conclusion, because it has ignored the evidence of leases and the oral evidence of the lessees as also of the cist receipts. I do not think the lower Court has ignored the evidence. On me other hand, it has considered It and has come to a conclusion against the appellant, it did not rely very much upon the oral evidence of the village officers, nor was the other evidence sufficient to draw a conclusion in favour of the appellant of her right to adverse possession. The only question, therefore, is whether under Order 2, Rule 2 the suit of the respondent is barred.

(2.) Learned advocate for the appellant, Sri Gangadhar Rao, contends that the evidence in this case shows that the guardian of the respondent was fully aware that there were other items than those which formed We subject-matter of the former suit; that this fact was mentioned to his lawyer who said that he can file another suit later on in respect of them. The first appellate Court, however, on that evidence took the view that the respondents father who was the guardian in the former suit was not aware of these specific items of property as such, in a suit for partition, a subsequent suit in respect of property of which the plaintiff was Ignorant could be filed. But the learned advocate contends that this view is incorrect on the evidence of P. Ws. 1 and 2. P. W. 1 is the widow of the predeceased son and the plaintiff-respondent in the case. She was of course a minor at the time and consequently any evidence which she may give is only what she could nave gathered later on from her father. In so far as the evidence of P. W. 2 is concerned he says that Pichi Pullayya, the father of the appellant, had given a list of the joint family properties and said apart from these, there are some immovable properties, the survey numbers of which he could not remember. In cross-examination P. W. 2 admits that he mentioned this fact to his lawyer no said that a suit could be filed later on. It is obvious that the guardian of the respondent was not aware of the details of the property, though he had factual Knowledge of me existence of some other properties. It is contended that he could have easily ascertained the details of the properties and included them in the former suit, but it is contended by the learned advocate for the respondent that there is no obligation on the part or the guardian to ascertain. At any rate, even if he did not ascertain, that does not mean that he had knowledge of the specific Items of the properties in order to attract the bar under the previsions of Order 2, Rule 2 C.P.C. He has further contended that at any rate the omission or the negligence of the guardian in not protecting the interests of the minor, cannot negative the right of that minor when she attains majority to file a suit in respect of these properties. Order 2, Rule 2 is as follows:

(3.) Apart from these, there is also one other point to which the advocate referred, -- that the mistake of the guardian cannot preclude We minor after she attains majority in filing a suit in respect of the properties omitted In the former suit. This contention is supported by a judgment of the Bench of the Bombay High Court in Vyankat v. Onkar Nathu, ILR 45 Bom 805: (AIR 1921 Bom 434) where Macleod, C.J. said at p. 303 (of ILR Bom): (at p. 434 of AIR): "...., .The plaintiff has now filed this suit to recover possession of another portion of family property, and in the first place it was argued that the suit was barred under Order II Rule 2, as the subject-matter of this suit ought to have been included in the previous suit. That argument would not apply to a case like this where the previous proceedings were taken in the name of the minor by his next friend. The minor could not possibly be prejudiced by a mistake made by those representing mm during his minority as his rights to sue in his own person only come Into effect when he attains majority. He MM, therefore, be entitled to disregard any proceedings which had been taken during his minority if his interests had not been properly safeguarded. I cannot see how he could possibly be injured and prevented from now suing for the suit property owing to the tact that his adoptive mother did not sue for it in 1910 during his minority.