ALLA VIRASWAMI Vs. POLAVARAPU NAYUDAMMA

JUDGEMENT

(1.) This is an appeal by the 3 defendant against an order of remand made by the District Judge of Guntur in A.S. No. 330 of 1922 of his file which arose out of an original suit instituted in the Subordinate Judge's Court of Bapatla.

(2.) The relationship between the parties to the suit is shown in the following table:

(3.) The plaintiff is the daughter's son of one Nayudamma by his first wife, the 2nd defendant being his mother's sister. The 1 defendant is Nayudamma's second wife and the 3 defendant, her brother. The suit is for a declaration that a will alleged to have been left by Nayudamma in favour of defendants 1 and 3 is not genuine, that he (plaintiff) as the daughter's son is entitled to the properties of Nayudamma after the death of the widow (1 defendant) and of the daughter (2nd defendant) and that the alienation made by defendants 1 and 2 would not be binding on the plaintiff after their death. The Subordinate Judge dismissed the suit on two preliminary grounds, viz., (1) that the suit is barred by res judicata by reason of the prior decision (O.S. No. 100 of 1923 of the District Munsif's Court of Ongole ; A.S. Nos. 72 and 74 of 1915, Additional Subordinate Court of Guntur) and (2) that the suit is barred by limitation. On appeal, however, to the. District Judge, he held that there was no bar by res judicata. He also held that on the evidence on record it could not be held that the suit was barred by limitation. He therefore, remanded the suit to the first Court with a direction to consider the question of limitation afresh in the light of any further evidence that the parties may be willing to offer, and if it comes to the conclusion that the suit is not barred by limitation then to proceed to dispose of the suit on the merits. Against this order of remand 3 defendant has filed the present appeal ; and the learned vakil who appears for him has argued before us that the District Judge's decision is wrong on both the above points.