PENDELA ADI LAKSHMI Vs. GANDIKOTA DURGAMMA

JUDGEMENT

(1.) Defendants 2 and 3 are the appellants. The second appeal arises out of a suit instituted by the plaintiff for recovery of money due under a promissory note, dated 15 October 1923, executed by one Lakshmikantham deceased, the husband of defendant 1. Defendant 1 was sued as Lakshmikantham's legal representative. Defendant 2 is the daughter of defendants 1 and defendant 3 is defendant 2 sson. Lakshmikantham died in July 1924, leaving a will Ex. B. Under it defendants 1 and 2 got a life interest in a house. Defendant 1 also got a life interest in a share of the scheduled property, defendant 3 getting two shares. It is not necessary to refer to the other items of the will. The suit was filed on 12 October 1926, just three days before the suit note became barred. It was originally instituted only against defendant 1. She pointed out that she had no interest in the properties and that defendants 2 and 3 should be made parties to the suit. The plaintiff then amended the plaint and made them parties on 3rd May 1927. It will be observed that by this time the promissory note had become barred. Section 22, Clause 1, Lim. Act, says: Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party.

(2.) The contention of defendants 2 and 3 (the appellants), is that the suit should be dismissed as against them having regard to Section 22, Lim. Act, because, by the time they were added as parties the promissory note had become barred. This contention was rejected by the lower Court and a decree was passed against them, relying on a decision in Virchand Vajikeran Shet V/s. Kondu 1915 Bom. 272. This contention is repeated in second appeal. It may be mentioned that the lower Court accepted the statement of the plaintiff that when the suit was instituted, she was not aware of the will. It is clear that but for the will defendant 1 was the heir and representative of the estate of the deceased Lakshmikantham, and it is not disputed that she was sued in that capacity. In Virchand Vajikeran Shet V/s. Kondu 1915 Bom. 272, one K, a Mahomedan, effected a simple mortgage in favour of Y on 23 June 1899, the mortgage debt becoming due on demand which was made on 1 January 1900. K having diod a suit for sale of the mortgaged property was instituted by V against his minor son as a party in possession of the property on 23 June 1911. The minor's guardian having alleged that K left other heirs, a widow and two daughters, V applied on 29 January 1912 to have them added as parties and they were so added on 12 February 1912. It was contended by the added defendants, that the suit was barred as against them under Section 22, Lim. Act, 1908: see the head-note. It was held that As the suit was to enforce a mortgage lien binding on the whole property in the hands of any heir of the mortgagor, the addition of the parties after the expiry of the time did not involve the dismissal of the suit under Section 22, Lim. Act, 9 of 1908.

(3.) The counsel for the appellants distinguishes this case on the ground that the-suit therein related to a mortgage and as every part of the mortgaged property, in whomsoever's hands it may be, was-liable for the entire claim, the addition of the "added defendants" after the expiry of the time was not considered material by the Court. Respondent 1 s-counsel argues that the true principle on which the decision is based is that the suit being against the estate of the deceased it was sufficiently represented by the minor son against whom it was instituted and that the other defendants must be deemed to have been potentially parties to it as originally constituted. The principle enunciated by the respondent's counsel finds support in a decision of this Court in Chaturbhuja Dass Kushal Doss & Sons V/s. Rajamanikka Mudali 1930 Mad. 930. The necessary facts and the point decided in the case are thus stated in the head-note: A debtor died leaving a will by which he bequeathed his estate to his nephew subject to certain dispositions. The widow of the debtor disputed the will. In ignorance of the will and bona fide believing the widow to be the proper legal representative, the creditor brought a suit against her alone, and obtained an ex parte decree for the debt to be paid out of her husband's assets in her hands. The widow was in possession of a few items of the estate. In a suit by the nephew to set aside the decree and the sale in execution thereof, it was held that as the creditor bona fide believed the widow to be the proper legal representative and as she was then interested in defending the estate and sufficiently represented the estate and as he got his decree without any fraud or collusion with her, it was binding on the plaintiff, the residuary legatee, under the will.