G KRISHNAJI RAO Vs. B R RAMAIAH

JUDGEMENT

(1.) The appeal and the revision petitions are inter connected and so theyare disposed of by this judgment. Plaintiffs 4 and 5 are the appellants. The first plantiff, their father, instituted the suit O. S. 120/59 against the five defendantsmembers of a joint Hindu familyin the Court of the District Munsiff, Gutti which was subsequently transferred to the Court of the District Munsif, Anantapur and renumbered as O. S. 63/62. Later on by an order passed by the District Judge that suit was transferred to the file of the Subordinate Judge's Court, Anantapur where it was numbered as O. S. 1/65. The suit was instituted against the five defendants for eviction from the suit property which consists of five items of immovable property, on the averment that the property was purchased by the first plaintiff under a sale deed dated 9-11-55 for a consideration of Rs. 5,000/-from the Hindu joint family of which D1 to D5 are coparceners. Plaintiffs 2 and 3 are the lessees of the suit property. The first defendant is the father-in-law of the first plaintiff. D2 to D5 are the sons of first defendant.

(2.) The defence taken in the written statement was that the alleged sale deed was a nominal and sham transaction and that the defendants are entitled to the property.

(3.) The first defendant died in 1962 and his legal representatives D6 to D14 were brought on record. D8, one of the legal representatives died in 1966 and D15 to D1 9 were brought on record as his legal representatives. D13 is the daughter of the pre-deceased daughter of the first defendant. On 16-1 -1970 D13 died. The first plaintiff died on 19-3-72. D9 to D19 who were already on record, were recognised as the legal representatives of the first plaintiff by an order dated 16-9-72 passed on a memo filed by the parties. D9 and D10 are the sons of the first plaintiff and they were transposed as plaintiffs 4 and 5. On 16-8-74 D2 to D5 filed a memo stating that D-13 died and no legal representatives were brought on record. On 25-11-74, the plaintiffs 4 and 5 filed a memo to recognise defendant Nos. 3, 4, 11, 12 and 14 as the legal representatives of D13. An objection was taken by the defendants to this memo contending that the deceased 13th defendant had left surviving her a son and husband who were entitled to come on record as legal representatives besides D3, D4, D11 and D14. By an order dated 18-12-74, the learned Subordinate Judge held that the plaintiffs ought to have brought on record the son and husband of the 13th defendant and as they failed to do so the suit against D13 abated. Thereafter, IA. 1508/74 was filed on 27-12-74 by the defendants to dismiss the entire suit on the ground that the relief claimed by the plaintiff was joint and indivisible and the claim of the defendants was also joint and indivisible and, therefore, the dismissal of the suit against D13 must result in the dismissal of the entire suit. That application was resisted by the plaintiffs contending that the Court had already exercised its jurisdiction and dismissed the suit against D13 on the ground that it abated, and there was no objection for the trial to proceed in so far as the other defendants are concerned. They also stated that without prejudice to their contentions they were taking steps to bring on record the minor son and husband of thirteenth defendant as party to the suit.