FATHLMANISA BEGUM Vs. TAMIRASA RAJAGOPALACHARYULU

JUDGEMENT

(1.) 1. This Letters Patent innocuous as it looked when the arguments were commenced, has assumed larger proportioni as the arguments advanced. Some questions of law relating to the Hindu Joint family, widow's right in it, and the impact of the Hindu Succession Act on these rights have come to be canvassed and consequently have to be answered in this case.

(2.) How those arose we shall state in brief. The 1st defendant in Original suit No. 3 of 1964 on the file of the Subordinate judge's Court, Tenali, executed Ex. A-1-dated 12-1-1944, a deed of mortgage, for Rs, 3,000/- in favour of Sri Raghavacharyulu, with interest at the rate of Rs. 0-9 annas-6 paise per mensem, compound interest with yearly rests. The hypothecated property Is a terraced building In Tenali Town. The mortgagor hlmseif made three small payments and on 2-5-1944 under B-l he sold the hypothecated building to the second defendant, who is the present appellant, subject to mortgage. The purchaser made two payments the second one being on 1-12-1951. In 1954 the mortgagee died leaving behind him two sons and a widow. The two sons alone filed original suit No. 3 of 1964 on 29th November 1963, to recover the money dus on the motrage bond after giving credit to the payments. It will have to suit was filed just on the eve of the expiry of the period of limitation from the last payment on 1-12-1951. The second defendant filed her written statement on 21-2-1964 inter alia contending that the suit was not maintainable without the widow, one of the heirs of the mortgagee, and that the rate of Interest was usurious. The widow was subsequently added as 3rd plaintiff as heir of the deceased mortgagee and a consequential amendment is made in the plaint saying that she is added as the third plaintiff as one of the heirs of the deceased mortgagee, though the first plaintiff alone as manager of the family could sue. This amendment was effected as per orders of the High Court in C.R.P. No. 1638 of 1966 dated 6-2-1967. The trial court as well as our learned brother, M. Krishna Rao, J., decreed the suit repelling the objections of the second defendant. The trial court decreed the suit as prayed for and the Hfgh Court In its judgment awarded interest at the contract rate upto the date of the suit and there-after at the rate of 5 1/2 percent per annum, simple, till the date of payment. Only to this extent the decree was modified. In other respects the decree of the trial court was affirmed. It is against this decree the second defendant has preferred this Letters Patent Appeal.

(3.) Sri C. Narasimhacharya first argues that the widow was added as the third plaintiff on 6-2-1967 long after the period of limitation. She was certainly one of the heirs of the deceased mortgagee. The suit filed by the two sons alone was not in proper form and was not therefore maintainable. The Impleading of the widow on 6-2-1967, long after the period of limitation was over, could not save the suit claim from the fatal error or defect of not impleadlng the widow even In the beginning or at least before the period of limitation expired. He strongly relies on the Full Bench decision in P. G, Reddy vs. Golla Obulamma (I) AIR 1971 A. P. Page 363.