RAVELLA KRISHNAMURTHY Vs. YARLAGADDA PITCHAYYA

JUDGEMENT

(1.) One Ramaswami Mudali had married two wives. He divided with his sons by the first wife one of whom was a minor. This minor son was given his share with his father as guardian. Ramaswami Mudali went to Masulipatam for treatment and there made a will bequeathing his property to this minor son by his first wife. It is then said that seeing that his second wife was pregnant he executed a codicil bequeathing his property to his second wife and the unborn child. After his death the will was presented for registration. The codicil was disputed by his first wife and her sons and registration was refused. The second wife brought a suit under Section 77, Registration Act, to have the codicil registered. The Subordinate Judge directed registration of the codicil and on this an appeal was taken to the High Court. (A.S. No. 415 of 1924). After the death of Ramaswami Mudali his minor son by his first wife brought suits on two promissory notes executed by third parties in favour of Ramaswami Mudali. In those suits he made his brothers, the second wife, and the female child, who had since been born to her, also parties. The female child was defendant 5. The debtor pleaded discharge. The suit to enforce registration was disposed of by the Sub-Judge while these suits were pending. As a result of this, since the plaintiff admitted that under the judgment of the Subordinate Judge which supported the codicil he was not entitled to the amounts, the suits were dismissed. But the learned Additional District Munsif when he came to the matter of costs gave amongst other reasons for directing each party to bear his own costs, that as the plaintiff had filed an appeal to the High Court against the judgment of the Additional Subordinate Judge his right to recover the said amounts on the basis of the will in his favour would revive if the said judgment is reversed. In the High Court there was a settlement of the matter between the sons of first wife including the minor and also the second wife and her minor daughter, defendant 5. There was a decree in terms of the compromise. It was agreed that the codicil was not valid. At the same time the terms of the will were departed from and a fresh arrangement made. Under this compromise the debts under the two promissory notes which had been sued upon were allotted to the minor son by the first wife who had brought the suits. He thereupon filed petition under Section 151, Civil P.C., to have the suits revived. These petitions were dismissed and it is against these orders that the present revision petitions are filed.

(2.) The learned District Munsif who dismissed the petitions was not the same officer who passed the order dismissing the suits. He gave as one of his reasons for refusing the request that defendant 5, who is the person to benefit under the codicil, was not a party to the compromise or the litigation in the High Court. That remark is not quite correct. Defendant 5 was certainly not a party to that litigation because the suit was instituted by her mother before she had been born. But she was a party to the compromise as represented by a guardian. He also treated the petitions which had been filed in September 1928, while the judgment and decree of the High Court had been obtained on 10 April 1928, as review petitions and held that the time necessary for obtaining copies of the High Court's judgment and decree could not be deducted in computing limitation. He considered also the main contention which is put before me, namely, that the suits should be considered to be still pending, and repelled it.

(3.) It is necessary to note exactly the circumstances under which the suits were dismissed and the order passed dismissing them. The following issues were framed in the two suits: