MT. CHANDRI Vs. HIRALAL

JUDGEMENT

(1.) 1. This appeal arises out of a suit for possession of absolute occupancy field No. 51/1 in Mauza Chikli in the Wardha District. Chirkutia, who was the tenant of this field, died in 1918, leaving (1) a widow who remarried in 1920, (2) an infant daughter, Mt. Chandri, the present plaintiff, and (3) her mother Mt. Baija, defendant 2. In 1921 Hiralal, defendant 1, instituted a suit through his next friend against Mt. Baija, as legal representative of Chirkutia, to recover money due on a bond executed by Chirkutia Civil Suit No. 288 of 1921. He obtained a decree against the assets of Chirkutia in the hands of Mt. Baija, and in execution of that decree the field in suit was auctioned and bought by Mahadeo, a cousin of Chirkutia, for Rs. 150. The plaintiff contends that that decree is not binding on her or the estate of Chirkutia, as Mt. Baija was not the legal representative of Chirkutia.

(2.) THE trial Court passed a decree in the plaintiff's favour, but the lower appellate Court, while deciding that the decree was not binding on the plaintiff, held that she could not obtain possession of the field until she had refunded to Mahadeo the Rs. 150 that he had spent on the purchase of that field. The lower appellate Court relied on the decisions of the Madras High Court in Malappa v. N. G. Rare, A.I.R. 1926 Mad. 487 and Govappa v. Govappa, A.I.R. 1929 Mad. 482. The first case is distinguishable because the person sued was not in possession of the estate. In the second case it was held that in certain circumstances a person wrongly impleaded as a legal representative represented the estate, with the result that the decree was binding on the true representative, but that a necessary condition was that the plaintiff, or decree-holder, had acted bona fide, i. e. in good faith and with due care and attention. Mt. Baija was in fact in possession of the field in suit, and she was the guardian of Chirkutia's minor daughter. The lower appellate Court however held that if Hiralal had made full inquiry he would have discovered that the field was recorded in the name of Mt. Chandri and that therefore he could not be said to have acted with due care and attention. I am not prepared to go so far as the Judges in Govappa v. Govappa, A.I.R. 1929 Mad. 482 and to bold that the decree cannot be binding on the true representative because the plaintiff did not make an exhaustive inquiry. I prefer the view expressed in Chaturbhujdas Kushaldoss & Sons v. Rajamanicka, A.I.R. 1930 Mad. 930, where it was held that the failure to make more detailed inquiries would not necessarily lead to the conclusion that the plaintiff had not acted bona fide.

(3.) I therefore hold that the decree obtained by Hiralal against Mt. Baija is binding on Mt. Chandri and that her suit for possession must fail. The appeal therefore fails and is dismissed with costs. The cross objection is allowed with costs.